CARBONNE & CARBONNE

[2015] FamCA 823

FAMILY COURT OF AUSTRALIA

CARBONNE & CARBONNE [2015] FamCA 823

FAMILY LAW – PROPERTY – INTERIM ORDERS – Case Application dismissed – costs reserved – consideration of whether an interim property order is appropriate – where outcome of children’s matters may affect property division

Family Law Act 1975 (Cth) s 79

Harris & Harris (1993) FLC 92-375
Strahan & Strahan (interim property orders) 2011 FLC 93-466

APPLICANT: Mr Carbonne

RESPONDENT: Ms Carbonne

FILE NUMBER: TVC 46 of 2009

DATE DELIVERED: 21 September 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 21 September 2015

REPRESENTATION

THE APPLICANT: In person

SOLICITORS FOR THE RESPONDENT: Everett’s Family Law

Orders

1. The husband’s Application in a Case filed 1 May 2015 dealing with personal chattels is dismissed.

1. The costs of today’s hearing be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carbonne & Carbonne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 46 of 2009

Mr Carbonne

Applicant

And

Ms Carbonne

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the husband seeking an interim division of property.  Specifically, he seeks: firstly, the return of about 49 or 50 specified chattels to him; secondly, orders for the sale of a German motor vehicle; and thirdly orders in relation to his attendance upon the former matrimonial home for the purposes of undertaking the recovery of the relevant items.  There are many facts in dispute between the parties and the wife opposes the orders which are sought by the husband. 

2. The law relating to interim property applications such as this is settled by the Full Court authorities of Harris & Harris (1993) FLC 92-375, as modified by Strahan & Strahan (interim property orders) 2011 FLC 93-466. Particularly, it is no longer necessary to establish compelling circumstances for there to be an interim order, but rather, the court only needs to be satisfied that it is appropriate to exercise the undoubted power to make an interim division. However, if such a power is exercised, it must be performed within the section 79 parameters and because it is necessarily imprecise, must be exercised conservatively.

3. Against that background, I turn to consider whether it is appropriate to exercise the power in this case.  In my view, it is not.  Firstly, there is a substantial dispute between the wife and husband as to which of the specified chattels were taken by the husband after separation or placed by the wife in a motor vehicle of the husband’s friend, which vehicle was then parked outside her house.  That is not a dispute which I can resolve today.  Moreover, there is a dispute as to the ownership of some of the relevant chattels, including a boat. 

4. The second matter is that the overall outcome of the property division proceedings will be substantially impacted upon by an argument that is advanced by the husband to the effect that the post separation sale by the wife, albeit by liquidators or administrators appointed over the relevant companies, to her parents of most of the core family business assets, is a sham or at least remains a financial resource able to be accessed by the wife.

5. That argument, if it were accepted, would substantially increase either the pool of property available for division if the sale were to be set aside, or alternatively, would have a substantial impact upon the division of the other property if the wife has those assets still as a financial resource.  It is simply impossible at the moment to predict even an overall likely range of the outcome of the property division proceedings. 

6. The third matter is that there are no up to date financial statements from either the husband or the wife and it is conceded, it appears at least by the husband, that his financial position has changed since the last financial statement, and I infer the wife’s is likely to have changed as well.

7. The fourth matter which tells against it being appropriate to exercise the power is that the children’s matters between these parties are still a long way from resolution.  As I understand it, the husband still has to confront serious criminal matters arising from alleged misconduct by him towards the children during the course of the relationship and, of course, if they were established, that would be a significant matter in the parenting proceedings.  Likewise, if the husband is successful in persuading me that in fact those allegations are but part of a widespread scheme on the part of the wife to alienate the children from him, that again would be a telling matter in relation to the children’s matters.

8. The disposition of the children’s matters is likely to have a substantial impact upon the resolution of the property proceedings given, as shall be seen in due course, that the pool is, on one view, only very small. 

9. That then brings me to the fifth matter, namely that the only assets of any real substance the subject of this application are a boat and a car.  As to the car, the wife’s material says that there is little or negative equity in the car in that the amounts secured over it by way of finance exceed or equal its value.  Whilst the husband disagrees with that, it is not a matter I can resolve today.

10. If it be correct that there is little or no equity in the car and the wife continues to meet the liabilities associated with it, then the purpose of the sale of it would only see the wife deprived of a motor vehicle. 

11. As to the boat there is, at most, $7000 equity in it.  There is a second boat, although the wife says that that is owned and always has been owned by her father.  That is a matter I cannot resolve today.  Returning however to the boat, if it be the case that the wife’s position is vindicated at trial, then this will be the only substantial asset with equity of any note that is owned by the parties, at least on the material before me.  It would not be possible to conservatively divide the proceeds of sale as sought by the husband, namely on a fifty-fifty basis, because it may be the only substantial asset available to meet the property division, irrespective of which party ultimately succeeds.

12. On any view, if the wife’s position is correct, in any event the net position of the parties is one of liability.  Indeed, the husband frankly conceded as much during the course of submissions, noting of course that if his argument that the wife has spirited away the business assets out of the Court’s control succeeds, then that may be itself a significant matter as to where the range of property division lies.  So for those reasons, I am not satisfied that this is a case where it is appropriate to exercise the power to make a property division on an interim basis.

13. Even if I am wrong as to that, then as to the second step, I am not satisfied that on the material before me, particularly given the out of date financial material pertaining to the parties, I could properly exercise such a power within the section 79 parameters on a conservative basis.  The material simply is deficient. 

14. The application filed 1 May 2015 by the husband which deals with personal chattels will be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 21 September 2015.

Associate: 

Date:  21 September 2015