Canvil and Merle

[2014] FamCA 106

FAMILY COURT OF AUSTRALIA

CANVIL & MERLE [2014] FamCA 106

FAMILY LAW – PROPERTY – PARENTING – Family Law Act 1975 (Cth) - Interim order - where the wife seeks money held in a law firm’s trust account to be transferred into a mortgage offset account – where the wife seeks a Hogan order – where an injunction was granted restraining the wife from dealing with the net sale proceeds of the Suburb B property otherwise than in accordance with the order.

Family Law Act 1975 (Cth)

APPLICANT: Mr Canvil

RESPONDENT:	Ms Merle
INDEPENDENT CHILDREN’S LAWYER:	Mr Dooley, Solicitor

FILE NUMBER: BRC 4803 of 2012

DATE DELIVERED: 24 February 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 24 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:	The Applicant Husband appearing in person
COUNSEL FOR THE RESPONDENT:	Mr Hackett of Counsel appearing for the Respondent Wife

SOLICITOR FOR THE RESPONDENT: Dean Evans & Company Family Lawyers

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER THAT:

Financial Proceedings

1. The Husband and Wife forthwith do all acts and things as are necessary to instruct Messrs. Bull, Son & Schmidt Solicitors to pay the amount of approximately $240,000 presently held in trust on behalf of both parties being the net sale proceeds of the parties’ property at Suburb B to the Wife’s mortgagee bank which holds mortgage security over the property at Suburb C on the following conditions:

a.   the net sale proceeds shall be deposited to a mortgage offset account and maintained there in accordance with this Order;

b.   save as otherwise provided in this Order, neither party shall deal with the net sale proceeds other than to establish the mortgage offset account;

c.   the Wife shall direct the mortgagee bank to provide monthly statements on the account and upon their issue, the statements shall as soon as practicable after receipt, be copied and sent to the Husband;

d.   the use and application of the net sale proceeds is:

i.without prejudice to either party’s right to make an argument about

contributions to the funds as they may consider appropriate at the trial of these proceedings;

ii.without prejudice to either party’s right to make an application for orders

adjusting property ownership, including by making to, for or in respect of the net sale proceeds referred to; and

iii.not a determination of the rights of either party in or to the net sale

proceeds referred to.

1. The Wife be at liberty to use the sum of $40,000 from the funds referred to in Order (1) hereof for the purposes of meeting her legal expenses.

1. Without admissions, save as aforesaid, the Wife shall be restrained and an injunction granted restraining the Wife from using, applying or otherwise dealing with the net sale proceeds of the sale of the parties’ property at Suburb B otherwise than in accordance with this Order, and shall provide any necessary instructions to the mortgagee bank to facilitate their compliance with the intents of these Orders.

Children’s Proceedings

1. The children, L born … January 2006 and F born … August 2009, spend time with the Father supervised by an appropriate supervisor as agreed between the Mother and Father or failing such agreement, approved by the Independent Children’s Lawyer for a period of eight (8) hours each alternate Saturday and Sunday PROVIDED THAT the Father shall bear the cost of such supervision.

1. The Mother to forward the Father via the Independent Children’s Lawyer, any

   medical reports relating to any serious illnesses/and or injuries suffered by the children.

IT IS FURTHER ORDERED THAT:

1. The balance of the Husband’s Amened Response filed 21 February 2014 be adjourned to the trial of these proceedings.

1. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Canvil & Merle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4803 of 2012

Mr Canvil

Applicant

And

Ms Merle

Respondent

REASONS FOR JUDGMENT

1. This is an interim application instituted by one Ms Merle, who was born in Germany but was initially a Belgian, but is now an Australian citizen.  She is a healthcare professional by occupation and practises at her own rooms on the Gold Coast.  She and the husband, Mr Canvil, married and they have two children, L who was born in January 2006, and F who was born in August 2009.

2. This matter has been before the court since Lapthorn FM, as he then was, now Lapthorn J, made an order in relation to parenting and insofar as contact was concerned.  Unfortunately, since that time, which was 2011, there have been unfortunate incidents which appear quite fully in the reports, and this eventually brought about the fact that the husband was ordered to have contact with his children only on a supervised basis.

3. The matter which really has come before me now was raised by the husband, Mr Canvil’s response which was filed 21 February 2014, wherein the orders sought, which numbered 1 to 18, he sought, in effect, to vary the order made in relation to supervision, and he sets out there what he seeks.

4. The matter originally came before the court on three issues.  One was seeking a transfer of funds, which are the net proceeds of the sale of the former matrimonial home, from a solicitor’s trust account which is earning 2.6 per cent per annum to an offset account which will save the parties something like 6.1 per cent.  That amount is some $240,000 sitting, as I said, in a trust account. The wife also sought in her application an interim property order which is, in fact, the removal of the moneys of some $240,000 from the trust account, the solicitor’s trust account, into the other account.  And she makes, or gives certain undertakings in relation thereto.

5. The final order sought by her was a Hogan order in relation to costs which she estimated to be some $40,000.  And as I said, the husband in his response has raised numerous other matters.  I will deal with the wife’s application first.

6. Before me, as I understand it, the husband opposes the removal of these moneys from the solicitor’s trust account into the other account.  I must confess I am not quite sure why, because I would have thought that it would benefit both of the parties by reducing the amount of – or rather increasing the amount of interest they receive and/or protected insofar as any form of mortgage account is concerned which she estimates at something like $237 a fortnight – I think it was a week.  Well, it was either a fortnight or a week.  This is an improvement.  This is moneys which will be paid back into the account and which will be available, one would have thought, for the court on the final determination of the matter to distribute between the parties in accordance with the percentage that the court may find.  I am of the view that it is to the benefit of both parties and have no hesitation in ordering that order.

7. Insofar as the interim so-called Hogan order, I refer to it and incorporate into these my reasons for judgment the written submissions on behalf of Mr Hackett of counsel who appears on behalf of the wife and, in particular paragraph 28 thereon in which the principles are set out.

8. In this case, the wife, a healthcare professional, has indicated that she is in receipt of something in excess of $150,000, or thereabouts per year from her practice.  She has filed a financial statement and that is contained therein.  She is claiming an amount of $40,000.  Such outgoings are supported by her solicitor, Mr Evans’ affidavit.  And to me, on the face of it, it appears remarkably reasonable.

9. The husband opposes this saying that he should have some moneys as well, and that he should have $80,000 since he now – he did not beforehand but he is now relying upon an estimate provided by the firm Barry Nilsson Lawyers - see exhibit 1.  Mr Hackett, acting on behalf of the wife, has not had the opportunity of seeing that prior to coming to court.  However, he submits that I should particularly consider that as a result of the husband’s material, he says that he has little or no assets whatsoever, that a property in Sydney I think in which he – he resides there – no, he resides on the Gold Coast – which is, he says is owned by himself, on the face of it, as trustee for his parents.  In other words, he has used the word a constructive trust.  I have to say I hope he knows what a constructive trust is.

10. However, that is his statement, and from that he indicates he has little or no other assets.  As a result thereof, Mr Hackett submits that he should not be entitled to any moneys from the costs because one of the considerations in making a Hogan order is that the initial fund capable of distribution between the parties should not be diminished permanently by a Hogan costs order.  There is much in what he says.  I cannot, at this stage, see that there is – if we accept everything that the husband says, that he will have any capacity to repay because, if we accept what the wife says, the wife says she has made by far the greater contribution to the property.  In fact, she has paid in something in excess of $500,000 by way of cash and the parties have ended up with $240,000 by way of cash.

11. Both of the parties serviced mortgages in relation to this property; the husband some $380,000 or thereabouts, and the wife something like $500,000.  It appears to me to have been an absolute disaster, this property.  I know not the reason why, and it is not for me to look into it.

12. I am satisfied that she has complied with the requirements of the cases referred to by Hackett in paragraph 28 of his submissions, and consequently I order that she do receive by way of a Hogan order the amount of $40,000 for the use of her legal costs.  I, regrettably, am unable to agree with the husband at this stage.  That does not mean that he cannot come again with better material.  He has no material; I am of the opinion no adequate material.

13. The next matter is the husband’s response which I said has gone through 18 orders sought.  He has raised the question of contact with the children.  I was under the impression, as was everybody else as I understand it, until the 21 February the question of contact – or the children’s matters were not in dispute; they are listed for trial, but this is an interim matter.  But, however, he has raised it.  He wishes the supervised visitations will occur as per family report author, Ms W, with the addition of supervised mid-week individual time with each child.

14. Ms W filed an original report in this matter on 24 October 2012.  A subsequent order was made for the production of a further report, and she has done that and put it before the court. The reports are very lengthy, but I say in relation to the first report she recommends supervised contact of the children with the father.  And, further, she did make certain recommendations.  I refer to (a) to (j), and (k) on pages 32 and 33 of her original report.  In that she also recommended that the father have mid-week or during the school week, contact with the children for a period of a couple of hours on one afternoon each week with each child individually.

15. Now, I am not sure what she means by that but what the father has put to me is that he should have one child on one Wednesday and the other child on the other Wednesday.  I, myself, would like to know a little bit more about that.  It does not seem to be putting forward the interests of a family unit to any great extent.  However, as was pointed out quite properly of Hackett in her second report of – which was filed today, and I had not seen it until halfway through the submissions, she has dropped the recommendation for mid-week contact.  I have not heard from the Independent Children's Lawyer as to their view in relation to mid-week contact.  I will do so now.

RECORDED           :          NOT TRANSCRIBED

1. The father has put forward a proposition that there is no reason why he should not have contact with the children as he says separately, that is the girl one week and the boy the next week.  To me that does not seem to be encouraging a family unit.  One child could perhaps think, “Why am I having today?”  And the other child says, “Well, I’m having today and I’m better than the other one.”  No, I am persuaded to make an order for supervised contact on the odd-Wednesday, because I am persuaded that the father, and it is not opposed as I understand by the mother, should have supervised contact for a period of eight hours each Saturday and Sunday on alternate weekends.  I am very concerned about this type of contact and I am sure it will be investigated to a greater extent on the trial, but I will be making that order.

RECORDED           :          NOT TRANSCRIBED

1. The father has pointed out to me that, in fact, it will be rushed.  It will not be in the best interests of the children.  Consequently, I withdraw the order that I have made in relation to the Wednesday contact.  Otherwise I will order accordingly. 

RECORDED           :          NOT TRANSCRIBED

1. Order accordingly. 

RECORDED           :          NOT TRANSCRIBED

1. Insofar as the balance of the father’s application, it has been pointed out by Hackett, I believe that that is more a matter for the trial, not on an interim basis. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 24 February 2014.

Associate: 

Date:  24 February 2014