CLEMENTS & CLEMENTS

[2018] FamCA 98

FAMILY COURT OF AUSTRALIA

CLEMENTS & CLEMENTS [2018] FamCA 98

FAMILY LAW – PROPERTY – Interim Proceedings – Application by wife seeking interlocutory orders including partial property settlement by way of releasing funds to the wife – Funds released to wife as partial property settlement - Application by wife seeking interim spousal maintenance not pursued.

Family Law Act 1975 (Cth)

Strahan & Strahan [2011] FLC 93-466
Maroni & Maroni [2014] FamCA 664

APPLICANT: Ms Clements

RESPONDENT: Mr Clements

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

FILE NUMBER: SYC 1777 of 2017

DATE DELIVERED: 27 February 2018

PLACE DELIVERED: Hobart

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 11 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schonnell SC

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

Orders until further order

1. By way of interim property if favour of the wife; within 14 days of the date of these Orders both parties do all acts and things and sign all documents necessary to authorise the B Bank to provide to the wife complete and free access to all accounts conducted by her in particular Account No. …37 and Account No. …41.

2. The parties in their personal capacities and their capacities as Trustees of the Clements Trust do all acts and things and sign all documents necessary to cause the rental income received from the property situate at 1 C Street, Suburb D to be paid directly into B Bank Account BSB … Account No. …88 and such funds be applied in the following orders, as follows:-

   a.In payment of outgoings and expenses for the property situate at C Street, Suburb D as agreed in writing by the parties and in payment of agreed expenses relating to the administration and maintenance of the Clements Trust; and

   b.The wife shall be entitled to draw on the funds standing to the credit of the B Bank Account BSB … Account No. …88 to meet the shortfall between her income and her living expenses.

3. The wife pay, be solely responsible for and indemnify the husband against the following expenses on the property situate at E Street, Suburb F (“the Suburb F property”):-

   a.Current outstanding and future council and water rates on or before the due date;

   b.Current outstanding and future gas and electricity expenses on or before the due date;

   c.Telephone, internet and Foxtel expenses; and

   d.Home and contents insurance and building insurance at the current level, on or before the due date.

4. The husband pay, be solely responsible for and indemnify the wife against the following expenses for the property situate at G Street, Suburb H (“the Suburb H property”):-

   a.Current outstanding and future council and water rates on or before the due date;

   b.Current outstanding and future gas and electricity expenses on or before the due date;

   c.Telephone, internet and Foxtel expenses; and

   d.Home and contents insurance and building insurance at the current level, on or before the due date.  

5. Both parties in their capacity as Trustee of the Clements Trust forthwith and no later than within 14 days of the date of these Orders, do all acts and things and sign all documents necessary to:-

   a.Cause a new lease agreements for the property situate at 1 C Street, Suburb D to be entered into between the Clements Trust and the current tenant or such other tenant as may be the case from time to time;

   b.Cause the 2017 Trust Tax Return for the Clements Trust to be completed, signed and lodged with the Australian Taxation Office; and

   c.Cause the 2017 Financial Accounts for the Clements Trust to be completed and approved.

6. Both parties in their capacity as Trustee of the N Superannuation Fund forthwith and no later than within 14 days of the date of these Orders, do all acts and things and sign all documents necessary to:-

   a.Cause new lease agreements for the properties situate at 2 C Street, Suburb D and 3 C Street, Suburb D to be entered into between the N Superannuation Fund and the current tenant or such other tenant as may be the case from time to time;

   b.Cause the 2017 Superannuation Fund Tax Return for the Clements Trust to be completed, signed and lodged with the Australian Taxation Office; and

   c.Cause the 2017 Financial Accounts for the N Superannuation Fund to be completed and approved.

7. All extant interim applications are dismissed.

8. The question of the costs of each of the parties on the competing interim property applications is reserved.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1777 of 2017

Ms Clements
Applicant

And

Mr Clements

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. There was a delay in delivery of these reasons. This arose primarily as a result of the form of Order (in some limited parts agreed by the parties) not being forwarded to the Court in a timely manner.

2. Ms Clements (‘the wife’) and Mr Clements (‘the husband’) separated in either late December 2016 or January 2017 and they are involved proceedings in the Family Court relating to property and parenting.

3. The wife has in her name funds totalling about $950,000 which have been frozen at the request of the husband.  By an application in a case filed 2 June 2017 the wife seeks the release of those funds to continue to use them for her purposes.

4. That application is opposed by the husband.   

5. The husband filed an amended response to that application in a case on 10 January 2018, but at all times has sought that the monies be returned to the joint account and be retained by the parties.

6. The wife’s case was that she wanted the funds to be ‘unfrozen’ and that she be free to use those funds for the purpose of supporting herself, the three children of the parties’ marriage and to fund the litigation between her and the husband. 

7. If the Court did not release those funds she sought orders in relation to spousal maintenance by way of non-periodic spousal maintenance in the form of repayments of loans, payment of council rates, land tax, payment of services including electricity, Foxtel, building and contents insurance and health insurance.

8. Senior counsel for the wife made it clear that if the funds were released the question of how that property should be treated ought to be a matter for the trial judge.

9. The husband in his response sought a series of orders, the essence of which were that:-

   (a)the wife’s application for interim property be dismissed;

   (b)the wife authorise B Bank to provide the husband with complete and free access to all accounts conducted by him;

   (c)the wife be restrained from instructing B Bank or any other financial institution to freeze or restrain or otherwise inhibit the husband’s access to accounts;

   (d)the wife immediately transfer the balance of the funds standing to the creditors of B Bank (being the balance of the $1,000,000 transferred) totalling about $953,000 in payment of the husband’s income tax liability and then the balance to another account (being the parties joint B Bank offset account), to act as an offset in relation to interest on owed monies;

   (e)the parties as trustees of a family trust sign all documents necessary to cause the rental income on an investment property at Suburb D to be paid to a particular account and be applied in payment of outgoings and that the wife be entitled to draw on funds standing in credit of that account (a sum of about $18,000);

   (f)the wife pay the following expenses in relation E Street, Suburb F (“the former matrimonial home”), being council rates, water rates (of which there is apparently an outstanding amount of some $5,000), gas, electricity, telephone, Foxtel, home and contents insurance;

   (g)the husband pays similar expenses in relation to a property owned by them at G Street, Suburb H (“the Suburb H property”);

   (h)the parties, as trustees of the family trust, execute a lease agreement in relation to the investment property, cause the tax return to be lodged and financial accounts to be prepared;

   (i)the husband be restrained from operating the account in relation to the investment property other than to pay outgoings and expenses;

   (j)the parties, as trustees of their superannuation fund, cause new lease agreements to be issued in respect of the investment property and have the tax returns prepared and the financial accounts prepared and instruct G Partners to refund the rental bond presently administered by them; and

   (k)the parties be restrained in relation to the drawing of funds with regard to the superannuation funds other than the husband effectively operating the funds

10. Each of the parties sought costs orders. Given the contested facts and allegations and counter allegations, I have determined not to address the question of costs at this time. The costs will be reserved.

BACKGROUND

1. The husband is aged 47 and runs his own business.  He lives at the Suburb H property, which was an investment property of the parties.  He deposes that he earns an income of $50,000 gross per year.  There is some issue as to if and when this income is paid.

2. The wife is aged 46 years.  She is not in paid employment and has the care of the parties’ three children, H aged about 14, J aged 11 and K aged eight (collectively ‘the children’).  The eldest child is not seeing the husband at present and the husband is seeing the younger children on limited occasions. The proceedings regarding the children are listed for hearing before this Court in April 2018.

3. The wife is not in receipt of periodic spousal maintenance nor is any child support being paid by the husband.  It is not clear whether an application has been made for payment of child support.  The husband is not providing direct financial support for the children, although, they are living in a home jointly owned by the parties and he says he is paying medical insurance.

4. The wife asserts that she is in good health, but suffers from inflammatory bowel disease which needs management. She says her relationship with the husband was emotionally traumatic, as was the breakdown of the marriage and subsequent litigation.  The wife also asserts that she has been a victim of family violence.  

5. The wife deposes that she is in receipt of income by way of Centrelink benefits totalling about $360 per week and that her parents are otherwise providing funds for her to support herself and the children to the extent of about $2,100 per week.

6. The husband asserts in his most recent financial statement that he pays medical insurance.  For the purpose of this application, I have assumed that it includes the children.

7. The husband asserts he has an income of about $50,000 per year and draws funds against a loan account to his remaining company, although there is some evidence that the amount due to him has increased rather than decreased in recent years. The husband asserts that the cost of maintaining himself is between $2,000 and $2,500 per week, which is approximately $100,000 to $130,000 net per year.

8. The husband contends he is unwell and suffers from depression which impacts on his capacity to work. 

9. There are significant issues between the parties as to the husband’s disclosure.  The husband asserts he has made full and frank disclosure.  The wife asserts that the disclosure has been inadequate.

10. In these proceedings the husband has paid legal costs totalling $191,000 and has a further liability of costs and disbursements of about $13,500.  The husband’s solicitor asserts that the costs of further proceedings and the final hearing will be about $150,000.

11. Given the extent of funds expended so far and the delays in the Sydney Registry and the level of conflict between these parties it is likely that this assessment may be an underestimate.

12. The husband’s costs have been substantially paid with monies advanced to him by his parents by way of loan.  The husband discloses in his most recent financial statement a loan from his parents to the extent of approximately $216,000.  He asserts he repays that loan at the rate of $264 per week.

13. The wife has incurred legal costs to date in the sum of approximately $107,000.  In the event that the matter is not resolved at the interim hearing and proceeds to a conciliation conference it is anticipated that those costs will reach about $173,000, including an allowance of about $41,000 for expert fees in the valuation of business and valuation of property.

14. The costs if the matter is not settled at the conciliation conference are estimated to be about $212,000 and if the matter proceeds to a hearing the costs will total about $310,000.  Given the extent of litigation I am concerned that this estimate may also be an underestimate.

15. The husband is currently operating a business, L Pty Ltd (‘the husband’s company’), which had a half yearly turnover up to 31 December 2017 of about $85,000 and had a gross profit of about $44,772.  The husband asserts that over that period it has incurred an overall loss of about $10,000.

16. In his affidavit filed 19 June 2017 the husband asserted that there were net assets of about $6,000,000, including about $1,000,000 in superannuation.  This comprises of the former matrimonial home, the Suburb H property, monies in the bank, including approximately $950,000 held in the wife’s name, the husband’s company, the assets of the husband’s company, the husband’s director’s loan in the company, which must be treated as a liability in the husband’s company.

17. The parties owe about $1,000,000 on the Suburb H property and the husband asserts that he has some tax presently outstanding around $100,000.

18. In his submissions senior counsel for the wife provided an outline of the parties’ respective circumstances, some of which are set out above.  The wife was concerned about the application and the proceeds of sale and the levels of tax asserted by the husband at different times.

19. The wife asserted that there may have been funds which had not been accounted for, in particular when the business was sold there were assets of the business totalling about $800,000 which was not accounted for.  I make no finding in that respect.

20. There was concern about what the level of tax was.  The tax portal information was submitted, however, I was unable to undertake an audit in that respect given the significant financial material before me and the nature of an interim hearing.

21. The wife asserted in her affidavit and through her counsel that there had not been proper accounting and proper tracing of funds from the sale of the business.  The wife asserted that the husband had provided different evidence in terms of his income at different times, particularly given his various assertions of income in different financial statements.

22. Senior counsel for the wife expressed the wife’s concern about monies transferred to the husband’s company and then application of those monies.  He raised a number of questions as from where the payment of tax came, and how much is now outstanding.  The husband currently claims he owes $114,000 and has consequently paid tax in advance to diminish that amount.

23. There were different sums provided in relation to the capital gains tax calculations on the sale of the business and it was contended that full and frank disclosure had not been made.

24. Senior counsel for the wife asserted that the only proposal the husband had put in place for the support of the wife and the children was to use a sum of about $18,000 in a rental account and some net rental.  Given that the wife had about $5,000 outstanding in water rates this would only cover her living expenses and those of the children for a relatively short period of time.

25. The wife’s parents had assisted her in terms of legal fees and living expenses.

26. On the other hand senior counsel for the wife asserted that the husband had access to income and to monies in excess of that provided by his parents.  This to be seen in the light of the husband claiming that it costs him about $100,000 to $130,000 per year to maintain himself and the application of most of his borrowed funds from his parents to is for the payment of legal costs, consequently this is a reasonable submission.

27. The husband has managed financially since separation and is deriving income to meet his expenses from some sources.  It may be that on a final hearing the precise circumstances of the husband can be clarified as can the question of the disbursal of the funds from the sale of the business, which the husband contends were dealt with appropriately.  Similarly the payment of capital gains tax and other expenses.

28. The thrust of the wife’s case is that this was her money which she took from the account prior to separation and whilst there was some expressed concern she had had free access to those funds until May 2017.  As such the onus would have been on the husband to establish why there ought to have been an injunction in relation to her continuing to use those funds during the course of these proceedings.

29. The funds have been reduced to about $80,000 over that period, having regard to the $30,000 that was in the account prior to the deposit of the $30,000.  The onus would have been on the husband to establish the need to freeze that account.

30. The husband’s case was that he objected at the start and pressed that objection in May 2017.

31. Irrespective of the cause I will treat it as an application by the wife by way of partial property order pending finalisation of the proceedings with the onus on her to provide evidence as to the expenditure.

32. The husband asserts that there had been a separation the previous year from about January 2015 until January 2016.  The parties, or one or other of them, owned a company called M Pty Ltd.  In about September 2016 that business was sold and the parties received $2,542,915.74.

33. The proceeds of sale of that business were placed into a joint account operated by the parties. 

34. On about 19 October 2016, shortly prior to separation, the wife withdrew from that account $1,000,000, leaving a balance in that account of some $505,000.[1]

    [1] Pages 104, 105 and 106 of annexures to wife’s affidavit filed 21 December 2017 (‘wife’s primary affidavit’).

35. The parties had been in communication in relation to the funds and I was directed to particular correspondence between them as follows:-

    (a)Email from husband to wife 18 October 2016 – husband purporting to explain how he was applying the proceeds of sale of the business;[2]

    (b)Letter from the husband’s then solicitors to the wife’s solicitors dated 20 October complaining about the removal of the $1,000,000;[3]

    (c)Correspondence from the wife’s solicitors dated 21 October 2016 indicating that the wife was holding the funds for safe-keeping;

    (d)                   Correspondence from the husband’s current solicitors, Mills Oakley Lawyers (‘husband’s current solicitors’) to B Bank dated 10 May 2017 seeking to freeze the account, some six or seven months later.[4]  A copy of that email was sent to the wife’s solicitors.

    [2] Affidavit of husband filed 19 June 2017 page 115 (‘husband’s primary affidavit’).

    [3] Affidavit of husband filed 10 January 2018 page 90.

    [4] Ibid page 94.

1. The wife seeks the release of those funds to continue to use them for her purposes.

2. The husband filed an amended response to that application in a case on 10 January 2018, but at all times has sought that the monies be returned to the joint account and be retained by the parties.

3. The wife’s case was that she wanted the funds to be ‘unfrozen’ and that she be free to use those funds for the purpose of supporting herself and the three children of the parties’ marriage and also to fund the litigation between her and the husband.  If the Court did not release those funds she sought orders in relation to spousal maintenance by way of non-periodic spousal maintenance by repayments of loans, payment of council rates, land tax, payment of services including: electricity, Foxtel, building and contents insurance and health insurance.

4. Senior counsel for the wife submitted that if the funds were released the question of how that property should be treated ought to be a matter for the trial judge.

Interim property settlement

1. The power to make property Orders under s 79(1) of the Family Law Act 1975 (Cth) (“the Act”) is singular, although the power can be exercised by a succession of orders. This is the so-called ‘salami orders’ pursuant to the Court’s power to make orders until further orders. To enable the Court to make such Orders there needs to be an application for final orders.

2. The decision of Strahan & Strahan [2011] FLC 93-466 at 85,642 made it clear that there need not be compelling reasons to base an interim order, however, such an order must be appropriate do to justice, Boland and O’Ryan JJ observed:-

   132. In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

3. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing. In this case I have done so in respect of each of the parties’ applications.

4. Making interim property orders involves two steps:-

   1.Determining whether it is appropriate to exercise the power to make such an order; and

   2.If so, what order should be made under s 79 of the Act.

5. If the Court determines that in making an interim order it must also ensure that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing.  In that context the Court is conscious that the amount paid or accessed through the interim orders are made, may be ‘added back’ to the property pool when final orders are made.

6. The husband and wife each have applications for final property orders.

7. The principles to be applied include:- 

   (a)The discretion of making a property order must be exercised with the parameters of s 79 of the Act, although not a complete consideration is required;

   (b)It is preferable to make only one order;

   (c)The fact that it is an interim order that requires a degree of caution;

   (d)The Court need not have compelling circumstances;

   (e)It is insufficient to establish that merely the property order sought will be made at trial;

   (f)A significant factor is whether an interim order is capable of reversal; and

   (g)An order need not limit the use to which the money may be put.

8. The husband has had access to much of the assets of the parties and at least the income-earning assets since separation.  This was, however, constrained by the events of May 2017.  He has had access to funds through the business, the balance of the proceeds of sale of the business and any other assets, if any, and for some time has been able to direct the application of the rent from the property owned by the parties trust.

9. The property available to the parties seems to be between about $5.8 million dollars and $6 million dollars.  The wife has the occupation of the former matrimonial home with the three children of the marriage and that home represents a significant portion of the property.

10. The husband has the occupation of the investment property which has a mortgage on it of approximately $1,000,000.

11. The husband has been able to meet the legal costs with borrowings from his family and did not specifically seek an order in relation to the property apart from the ability to manage the businesses and the superannuation fund.  I accept the submission of senior counsel for the wife that, on the surface at least, he appears to have access to all of the records and business records of the company and there is an issue, albeit not determined, about whether he has made full and frank disclosure.

12. The retention of approximately $950,000 in the wife’s name is well able to be reversed in relation to the adjustment of the balance of property at final hearing.

13. I accept and have adopted the observations of Justice Watts in Maroni & Maroni [2014] FamCA 664 where he said:-

    26.    The notion of a ‘level playing field’ is one which axiomatically is in the interest of justice and an important matter to consider when deciding whether it would be appropriate to make an interim property order.

14. Counsel for the husband asserted that the amount sought by the wife was well beyond her means having regard to the offers that the husband had made and the relative financial circumstances of the parties.  I do not agree.

15. The wife has the obligation to care for herself and the children in the absence of direct financial support from the husband.  I accept that at this stage the wife appears to be unable to work, although that proposition may be challenged in a final hearing.

16. The wife has the care of their three children some, if not all of whom, seem to be emotionally struggling with the breakdown of their parents’ relationship.

17. The orders that I propose to make will give the wife access to funds to support herself and the children, and enable her to undertake forensic assessment of the funds disposed of by the husband.

18. As such having considered all of the material I am satisfied that the order sought by the wife ought to be made.

19. Given the nature of the litigation it is likely that if a smaller order is made that there would need to be another application to the Court with the consequence of additional cost.  I have been cautious in terms of this interim order, however given the circumstances of both parties I am satisfied that an order such as this ought to be made.  As it is an interim property order it is clearly open for a trial judge on a final hearing to make a determination as to how this money ought to be dealt with as between the parties having regard to any expenditure of the money between now and the final hearing.

20. I do not intend to put in an order to limit the use of the funds, although the wife will need to explain the use of the funds at a final hearing.

21. There is no doubt in this case that the wife will receive a significant property adjustment; that is conceded by the husband.

22. In all of the circumstances I am satisfied that it is appropriate to make the orders sought by the wife pursuant to s 79 and s 80(1)(h) of the Act.

23. Given the discussion above I am satisfied that by way of interim property order the wife should have access to the funds in her B Bank accounts to which I have earlier alluded. 

24. The wife also seeks consent to have access to the net rental income received on a property owned by an alter ego of the parties at C Street.  Given her current financial circumstances and her need to support the children I have made that order but specified it to meet the shortfall between her income and her living expenses.  The expenses of the children should be met having regard to the Child Support Assessment Scheme.

25. Given the access to those funds and the interim property order the wife should be responsible for payment of water rates, council rates, insurances, electricity, gas, telephone and internet in the current property in which she and the children reside.  I will make that order.

26. The husband resides at the Suburb H property and he should be responsible for council rates, water rates, gas, electricity, telephone, internet and the like on that property.

27. The husband sought sole permission to operate the Clements trust.  Given the lack of trust and the hostility between the parties I do not intend to accede to that request.   I will however make orders requiring the parties to enter into new lease arrangements with regard to the property at C Street and future lease agreements, cause the taxation returns to be lodged and financial statements to be lodged.

28. The parties have a superannuation fund.  The husband sought effective control of that fund pending the hearing.  For the same reasons that I discussed earlier that is not a proposal I intend to adopt.  I will however make orders requiring the parties to put in place lease agreements in respect of a property owned by the superannuation fund and cause its annual returns to be lodged.

29. Senior counsel on behalf of the wife submitted that there is confusion or uncertainty in relation to how the balance of $1.5 million dollars from the sale of the parties business was disbursed.  He submitted that it was opaque in terms of how tax was paid and from which source of funds it was paid.  The husband’s counsel endeavoured to explain that process, however given the volume of documents and the issues of fact and disputes as to discovery, I could make no positive finding one way or the other in respect of those sums.

30. It is clear that significant tax has been paid from the proceeds of sale.

31. In addition the husband has paid legal costs of $191,000 and as at the date of the interim hearing has further outstanding costs and disbursements of $13,500 making total fees up to date of about $204,000.  These funds are said by the husband to have been advanced by his parents by way of loan.

32. The husband asserts that there will be another $150,000 incurred in legal costs if the matter proceeds to a hearing, thus totalling estimated legal costs of $350,000.[5]

    [5] Exhibit E1

33. The husband sought a series of orders.

34. The first one was that the wife’s application be dismissed.  I have determined that by enabling those funds to be available to the wife by way of interim property order pending the final hearing of these proceedings or negotiated outcomes.

35. The husband also sought exclusive operation of a series of bank accounts set out in orders 2.1 to 2.8.[6] 

    [6] Husband’s amended response to application in a case filed 10 January 2018.

36. In relation to the bank accounts with regard to the trust which operates the property at C Street should be operated by both parties together.  The superannuation fund should also be operated by both parties together.

37. The husband should have access to his own bank accounts. 

38. As to the residential loan over the property at Suburb H, the husband ought not to have free and unfettered access to that account as it may enable the drawing down of funds without the wife’s knowledge or consent.  I do not propose to make that order.

39. In his second part of his amended response to an application in a case filed 10 January 2018 the husband sought to restrain the wife from instructing financial institutions to freeze, restrain or otherwise inhibit the husband’s access to accounts conducted by him with any bank with which he is an account holder in a very general way.  I have made decisions regarding the superannuation fund in the trust.  They will be a matter for the husband and wife to negotiate directly.

40. In terms of his own bank accounts there need not be such an injunction and if the wife does so it will clearly be contrary to the approach that I have adopted in these reasons and consequences will follow.

41. The husband sought that the monies held by the wife totalling about $953,000 be transferred into an offset account in respect of the Suburb H Property.  It is significant these funds have not been available to the husband since the wife transferred those funds in late 2016 and that the husband has been able to manage the residential loan in the meantime.

42. Given the matters discussed earlier I intend to dismiss his application regarding the transfer of those funds and, as I have said earlier, make those funds available to the wife.

43. The husband sought orders similar to the wife that the rental income from C Street (owned by the trust) be applied to payment of outstanding expenses and then the wife be entitled to draw those funds for her living expenses and those of the children.

44. In some ways that order is in stark difference to that contained in order 2.8 sought by the husband’s amended response.  In any event both the husband and wife sought that order and I have made it, subject to the amendment to which  I referred earlier.

45. The husband sought orders that the wife pay the council rates, water rates and the like in respect of the former matrimonial home.  Given the joint application in that regard, albeit in the light of the determination that I have made regarding access to the funds held by the wife, I have made that order.  Similarly, the husband sought to be responsible for the payment of expenses in relation to Suburb H property.  I have made that order.

46. Similarly, both parties sought orders regarding the trust lease agreement on C Street and the lodgement of taxation returns and financial statements.  I have made those orders.

47. Similarly, the husband sought orders in relation to the orderly operation of the trustee of the superannuation fund, as did the wife.  Those orders have been made.

48. There was some suggestion by counsel for the husband that if I determined that the money ought to be released to the wife then I ought to consider a lesser sum and perhaps a split between the husband and the wife.  Given the husband’s current ability to meet his financial needs, I will not adopt that course.

49. The superannuation comprises two funds and the parties can operate that jointly.  I do not intend to give the husband free access over those accounts as he sought in order 2.3 and 2.6 of his amended response to an application in a case.

50. In relation to the accounts sought to be frozen by the husband and for him to have complete access to they are orders 2.1 Savings Account ending in …91, which is the parties’ joint account containing $2.00.  There seems no reason to become involved in that account.

51. The second account is order 2.2 which is an Offset Account which counsel for the husband says has a balance of $7,050.  I see no reason why that joint account should be disturbed at this time.

52. The husband asserts he has a B Bank Account No. …06 which has a balance in it of $4,552, the wife says the balance is $44,000. For the purpose of this determination I have assumed the figure asserted by the husband.  There should be no reason why the husband should not have access to this account.  Similarly the husband’s bank Savings Account ending in …28.

53. The Business Account ending in …30 is apparently an operating account of the parties’ superannuation fund, as is the Savings Account ending in …51.  Those two accounts ought to be conducted jointly.

54. The Savings Account ending in …88 operates the parties’ trading trust.

55. What I am then left with is the Business Account ending in …58 which I suspect is the husband’s business account.

56. Accordingly, I have made the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 27 February 2018.

Associate:     

Date:              27 February 2018