Cavallio and Cavallio

[2010] FamCA 568

FAMILY COURT OF AUSTRALIA

CAVALLIO & CAVALLIO [2010] FamCA 568

FAMILY LAW – PROPERTY – Interim – Undefended

Family Law Act 1975 (Cth)

APPLICANT: Ms Cavallio

RESPONDENT: Mr Cavallio

FILE NUMBER: MLF 3659 of 2005

DATE DELIVERED: 2 June 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Connell

SOLICITOR FOR THE APPLICANT: Oakfair Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. That the wife have leave to proceed in the absence of the husband on an undefended basis. 

2. That the orders made on 7 August, 2008 be discharged.

3. That within seven days of service of these orders upon the husband, the husband by himself and/or in his capacity as a director of L & F Pty. Ltd. transfer or cause to be transferred, to the wife, the proceeds of sale of G property in the State of Victoria and subject to the orders hereafter, the wife be at liberty to deal with the funds as follows :

   (a)to discharge the debt outstanding to Raine & Horne, Real Estate, being $5,350 or thereabouts;

   (b)to refund $29,000 plus interest and costs incurred by SP arising our of proceedings … in the County Court of Victoria;  and

   (c)to pay $50,000 by way of a lump sum for the spousal maintenance of the wife. 

4. That the husband pay to the wife by way of spousal maintenance the sum of $900 per week, the first of which payments shall be made on 4 June, 2010. 

5. That in the event that the husband fails to make the payments for spousal maintenance referred to in paragraph 4 hereof, the wife be at liberty to draw down $900 per week from the $50,000 referred to in these orders, being the sum set aside for the spousal maintenance of the wife. 

6. That the husband pay to the wife $1,500 being costs thrown away this day. 

7. That within seven days of the date of service of these orders upon the husband, he do all acts and things as may be required to withdraw the caveat lodged by him with the Office of Land Titles of Victoria and registered against the property at E, in the State of Victoria. 

8. That the wife be at liberty to sell the property situated at E without reference to the husband and she be responsible for the appointment of all agents and conveyancers. 

9. That insofar as the husband has failed to comply with the payments referred to in paragraph 3(a) and (b) hereof and paragraph 6 hereof, the wife be at liberty to apply the proceeds of the sale of E property as follows :

   (a)first, to discharge the debt outstanding to Raine & Horne, Real Estate, being $5,350 or thereabouts;  and

   (b)second, to refund $29,000 plus interest and costs incurred by SP arising our of proceedings … in the County Court of Victoria;

   (c)third, to pay $50,000 by way of a lump sum for the spousal maintenance of the wife; 

   (d)fourth, the costs due to the wife pursuant to paragraph 6 hereof; 

   (e)fifth, to set aside the sum of $50,000 for the spousal maintenance for the wife;  and

   (f)sixth, to pay the balance to the wife by way of part property settlement, spousal maintenance or costs as the trial judge may ultimately decide. 

10. That the husband make available to the wife within fourteen days of the service of these orders, all relevant documentation pertaining to the investment, income and dealings of the assets owned by the parties, either in their joint names, or jointly owned within the other person or by L & F Pty. Ltd. either in its own capacity or as the trustee of the family trust of which it is a trustee, including all documentation in relation to the sale of the properties at G and E. 

11. That all outstanding proceedings be otherwise adjourned to 10:00 am. on 2 July, 2010 as a special fixture in relation to the balance of the wife’s amended initiating application for interim orders filed 24 May, 2010. 

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

That if the husband has not :

(a)     complied with the terms of these orders by the return date;  and

(b)     attended on the return date;

the wife have liberty to apply for a Warrant for his arrest. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3659 of 2005

MS CAVALLIO

Applicant

And

MR CAVALLIO

Respondent

REASONS FOR JUDGMENT  

1. This is an application that was filed on 24 May 2010 by the wife as an amended application to that which she filed on 18 March 2010.  At 10 o'clock, or thereabouts, the husband was called, and there was no appearance.  Counsel on behalf of the wife indicated she was not expecting him to attend, because he has not shown much interest in these proceedings to date.  Subsequent to the proceedings being issued on 18 March, a case assessment conference was fixed for 18 May, and on that occasion, the husband did not appear before Registrar Field.  Orders were made on that occasion, including that the matter be listed before me in the duty list today.  Orders were also made in relation to service and the husband filing documents, none of which the husband has recognised. 

2. Before dealing with the application, I must point out that this is not the first time this case has been before the court.  The proceedings were before the court in 2008, at which time interlocutory orders were made.  They included the sale of properties and various issues associated with the payment of the moneys.  The August orders went before Watt J on 2 September 2008 and then to the Registrar, who in turn adjourned it to me on 16 December 2008.  I gave reasons on that occasion as to why the matter had a chequered history.  There were further proceedings before the court on 2 February 2009 and 11 March 2009.  Ultimately no one attended, and the proceedings were struck out.

3. The orders that were made on 7 August 2008 were still alive, but it seems that they have fallen into disuse, because although they have been carried out in part, effectively not much has happened.  One of those orders was for the sale of a property in E, which was in the name of the wife.  It transpires that the husband lodged a caveat against that property.  A purchaser was obtained, but the husband would not remove the caveat, and that culminated in proceedings being brought by the purchaser in the County Court of Victoria, and there is over $20,000 owing, because the purchaser no doubt wants his deposit back, and interest.  All of these things have mounted up.

4. The wife to some extent has indicated that she backed away because of promises made by the husband, but he has shown little regard for the court or its orders, let alone the wife.  All of that seems to have come to a head, and the wife ultimately began the proceedings again in March 2010.  I note that as at that date the parties were not divorced, so there was no impediment to a further application being made. 

5. In support of the application, the wife filed three affidavits and a financial statement.

6. The financial statement shows that she receives money paid to her by the husband of $375 per week, which she describes in the affidavit as being money towards her rent, and otherwise she lives on a widow's allowance from Centrelink. For the purposes of the Act I am obliged in a maintenance application to ignore Centrelink payments.  In respect of the financial statement, she set out that she has weekly expenses of $550 per week, which includes dental work and optical needs, which I propose to ignore at this stage because there is no evidence of how that cost would be made up, particularly bearing in mind that maintenance is an ongoing obligation.

7. However, if I factor in that the wife has rent of $360 per week, and I add that to $450, being the expenses she otherwise incurs, all of which seem to me to be reasonable, then she has a need of something in the vicinity of $900 per week. 

8. The husband has not put any evidence before the court, so to that extent, the evidence of the wife is unchallenged.  I do not have any idea as to his financial position, because, as I said, he has presented no evidence.  However, I note from the material of the wife that she asserts that he has been paying money to her, and there is a company and a variety of real properties involved in these proceedings.

9. To that extent, I can conclude that the husband has the capacity to pay, and the wife, in my view, reaches the threshold. 

10. The husband's attitude is made clear in his affidavit, and to that extent, I can conclude that unless the wife had an access to a lump sum in the event that the husband stopped making the payments, then she would be going without support.  There are two options here.  One is to have the husband pay a lump sum, and I will only make that order in the event that he does not make the regular payments that I propose to order;  or alternatively, she proposes to sell the house in her name, subject to the caveat, and she can pay sums out of that by way of a lump sum until such time as the matter is ultimately determined.

11. To give an indication as to the husband's view, I only need to turn to the affidavit of the wife in which she set out what could only be described as an appalling list of abuse which began in March.  As I pointed out, the proceedings began in March, and there was a series of events subsequent to that date which indicate not only the husband's understanding of the fact that the proceedings were on foot, but his view about them.  The wife said that on 29 March the husband returned all of the documents that had been served on him to her solicitor's office, and the envelope had been clearly opened, indicating that someone had read them.

12. Subsequent to that, the wife said that on 25 March she received text messages and voicemail messages in the following terms.  I do not propose to set out the dates, other than to say that these are all around the period of March and April subsequent to the filing of the proceedings.  Sequentially they read as follows:

    We need to talk somewhere, okay, before you lose [E]:  today before jazz, or after, some coffee lounge.  If you want a war, I will give you one.  I am sick to fight.  I am losing blood.  I am in and out of hospital.  Do you want to talk to me?  I know I been a bastard, but after [V] been telling me you are doing it hard, I ready to help to – it's up to you.  Do you want me to help you?  I came looking for you at jazz, but you weren't there.  I don't know where you hide your car, right.  If you don't ring me, right, and we discuss this like normal people, all right, okay, you can tell your lawyer this week or next week you start living with your mum. 

    I'm not paying the rent, all right?  Okay, it's not my business.  I am trying to help you sell [E], and she's telling you I am trying to rip you off.  I am not ripping you off.  You sell [E], and you get your house, that's all to it, and you leave me alone, that's all.  Answer the phone.  Answer the fucking phone.  Answer the phone, will you?  You know it's fucking me.  Answer the phone, or I'll come down to fucking jazz ballet and wait for you, or I'll come down to your house and break the fucking door down.  All right?  Now, fucking ring me up. 

    What are you fucking doing taking me back to court again, eh?  What's going on, eh?  Ring me up and discuss it, otherwise I am sending you back to your mum's.  All right, okay, told you no more court, all right, that's it's me – that it's ring me up, otherwise no more rent.  You are going back to your mother's, all right.  I am sending the papers back to her again.  I am going to no fucking court.  It's over. 

13. The messages get progressively worse, and I do not propose to embarrass the wife by making it clear just how pathetic the husband's position is.  It is quite clear, however, that he has no respect for the law or for his wife, and on that basis I should do the best I can with the evidence presented to me. 

14. The amended application also seeks other interlocutory orders.  The first is that the order of 7 August 2008 be discharged.  I think that makes sense, having regard to the fact that to a very large degree it has not been executed.  

15. The second order seeks that within seven days, the husband pay to the wife the proceeds of the property at G, which are said to be about $484,000, and then the wife be at liberty to deal with the funds in six different ways.  Those include the payment of the aborted sale commissions; the refund of the deposit, which ultimately culminated in the County Court proceedings;  a $20,000 Barro order;  a $50,000 lump sum spousal maintenance;  an undefined sum for out-of-pocket medical and dental expenses;  and an opportunity for the wife to purchase furniture and personal effects.

16. At this point in time I am not prepared to make all of those orders, because the evidence does not indicate the nature and extent of the necessary expense.  That is important in an interlocutory matter where I have no idea what the husband's position is, nor do I have any idea what the pool is.  I refer specifically to the Full Court's decision in Strahan in which the court set out just what sort of steps the parties needed to follow to make those sorts of orders.

17. I am satisfied, however, that it is important that the agent’s fees and the County Court proceedings be satisfied quickly, and having regard to the fact that the husband seems to have been the cause of those problems, I see no reason why out of the money that he received from G property, that sum should not be paid.  There is the necessity and the basis to issue the spousal maintenance order, and for the reasons set out it should be in a lump sum.

18. I propose to make an order that the husband pay the sum of $900 per week by spousal maintenance.  The first of such payments will be made this Friday, which will be 4 June 2010.  To the extent that by the return date of these proceedings, which I will fix as 2 July, the husband has not made those payments on a regular basis, then the sum of $50,000 can be used out of the proceeds of the sale of G property as an ongoing satisfaction of that spousal maintenance order.

19. To the extent that the husband does not comply with that order, those issues can be dealt with on 2 July, but I propose ultimately that the wife, if the husband does not comply, can use the proceeds of the sale of the property at E to satisfy those orders.  The necessary adjustments can then be made when the matter comes on for final hearing.  I do not propose to make the Barro order, because the wife's evidence does not satisfy the necessary tests set out by the Full Court in Strahan.

20. The wife also sought an order that the husband be restrained from dealing with the proceeds of G property.  I do not know the full details of what that was about and what the husband has done with the money, and without some further evidence, I think it is inappropriate for me to have a guess.  It is not, therefore, appropriate to make that order. 

21. I will make orders in terms of paragraph 4 of the application of the wife.  She seeks that the husband withdraw the caveat that he lodged in respect of E property, and that ultimately gave rise to the action in the County Court and caused problems with the real estate agents.  There is no evidence before me as to what the husband's caveatable interest was, and no action has been taken by the wife to remove it.  I will make an order that the husband withdraw the caveat, and if he does not do so, then the wife can take whatever steps she needs to do so on 2 July, presupposing, of course, that the E property has not then reached the settlement stage.

22. I am prepared to make an order that the wife be at liberty to sell E property.  It is clearly property that belongs to the parties.  There is some evidence of contribution and certainly evidence that would satisfy the factors in section 75(2) justifying such an order to be made on an interim basis. 

23. As I have already pointed out, the wife can have liberty then to satisfy some of the needs that she has, including the spousal maintenance order, if the husband is not paid, but those matters will ultimately be adjusted in the final settlement.  The wife then sought a variety of injunctions against not only the husband, but also the corporate entity.  I am not prepared to make those orders at this stage on the basis that there is no evidence that would satisfy any of the necessary tests to make an injunction such that I could say that it is proper.

24. The wife also sought that the husband join with her in making the necessary arrangements for the valuation or the various properties so that the property proceedings can proceed in this court.  I do not propose to make that order on the basis that having regard to the matters I have earlier set out about the husband's views, it would be unlikely that he would cooperate, and to that extent, as much as the wife may have to go to the trouble of having to expend the costs for those valuations, that is a matter that will no doubt be taken into account on the final hearing.  It may be that the husband might be well advised to get some advice about the consequences of his non co-operation.

25. The wife also sought an order under section 106A of the Act.  Having regard to the vague nature of what might be in store for a Registrar if I made that order, I do not propose to make the order at this stage.  That is a matter that can be dealt with on 2 July, because the major issue will be the withdrawal of caveat. 

26. The wife also sought orders requiring the husband to account to the wife for rental money.  Those are matters that can be dealt with on 2 July when I know whether the husband is going to co-operate further.

27. The husband was also sought to provide discovery. Parties have an obligation to make available to the other all of the documents to enable both parties and the court to ultimately have a very clear understanding of what the financial position is. Chapters 1 and 13 of the Family Law Rules make abundantly clear that that is an obligation - even in circumstances where a party decides that they are not going to participate – to provide the documents to the other side.

28. I do not propose to make that order today, however, because the husband on the next occasion will have an opportunity to be heard.  If he decides to cooperate, then at that stage all the necessary documentation for discovery purposes can be sorted out. 

29. The wife sought an order for costs of this proceeding today.  To a very large degree, she has been successful, and the husband has not attended.

30. Section 117 of the Act requires that each party pay their own costs unless the court is satisfied that there are circumstances justifying an order being made.  This is one of those cases where there is clear justification for the order.  The husband's past conduct has made it such, and his lack of cooperation and attendance here today has not assisted.  Having regard to section 117(2A), I am uncertain what the husband's financial circumstances are, but the wife has set out in her affidavit material that there are a number of properties that seem to be under his control and she actually sought an order for the husband to account for rent.

31. I have assumed from that that there are rental properties involved.  I am satisfied that the husband is not impecunious.  He has been unsuccessful in the sense that he has not attended today.  He was aware of the nature of the application and I see no reason why the wife should be out of pocket.  I propose therefore to make an order that the husband paid the wife's costs of $1500, being counsel's fee thrown away today, and in the event that that payment is not made by 2 July, I will make an order on that occasion for its enforcement.

1. I will therefore make orders in the terms that I have indicated.  These reasons will be transcribed and be made available to the parties.  I will also put a notation on the order that if the husband has not, (a) complied with these orders, or (b) attended on 2 July 2010, the wife will be at liberty to apply for a warrant for his arrest if he fails accordingly. 

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin J

Associate: 

Date:  8 July 2010