Crest and Oates

[2007] FamCA 549

FAMILY COURT OF AUSTRALIA

CREST & OATES [2007] FamCA 549

FAMILY LAW - PROPERTY – Interim – Spousal maintenance

Family Law Act 1975 (Cth)

APPLICANT: Mr Crest

RESPONDENT: Ms Oates

FILE NUMBER: SYF 2939 of 2006

DATE DELIVERED: 31 May 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Watts J

HEARING DATE: 2 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cleary

SOLICITOR FOR THE APPLICANT: Athena Touriki Solicitors

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Aitken Lawyers

Orders

THAT PENDING FURTHER ORDER:

1. Orders made 2 May 2007 be discharged.

2. Both parties are restrained from dealing with or further encumbering the property at B1.

3. The wife is restrained from dealing with or encumbering her interest in the A Superannuation Fund in a way which would have the effect of reducing the funds invested with M Ltd below an amount of $680,000. 

4. The wife pay to the husband within 7 days the amount of $107,000, which sum the husband shall receive by way of interim property settlement.

5. The wife pay to the husband by way of spousal maintenance the sum of $984.00 per week, first payment to be made within 7 days.

6. The wife be restrained from communicating with the husband by any means other than through their respective legal advisers. 

7. The wife be restrained from coming within 100 metres of B2. 

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: SYF 2939 of 2006

Mr Crest

Applicant

And

Ms Oates

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. In this matter the husband seeks interim orders against the wife for the wife to pay lump sum spousal maintenance, periodic spouse maintenance and an amount by way of interim property settlement.  The husband also seeks that the wife be restrained from selling personal property and real estate and encumbering those assets.  He also seeks injunctive orders for his personal protection.

2. The husband says he is in need of support on a weekly basis and that he requires a capital sum to meet his obligations until the final hearing of this matter.

APPLICATIONS

Orders sought by husband (interim)

1. The husband seeks orders in the following terms:-

   1.That within 28 days of the making of this order the respondent wife pay direct to the applicant husband the sum of $30,000 as lump sum spouse maintenance.

   2.That the respondent wife pay direct to the applicant husband the sum of $984.00 per week for his maintenance, the first payment to be made one week after the making of this order and that payments of weekly maintenance pursuant to this order be made by the respondent wife paying the said sum as required by this order into the following bank account:-

   Name:

   Bank/Credit Union:
   Account No.
   Branch/BSB. No.:

   3.The wife be restrained from charging or in any way encumbering all property, whether real or personal, in her name or jointly owned with any other person, or obtaining any further loans in her name pending further order.

   4.That the wife be restrained from selling any personal property or real estate pending further order of the court.

   5.That the wife be restrained from disposing, charging or in any way encumbering the proceedings of sale of any property, whether personal or real estate, including real estate in New South Wales and in the state of Queensland, pending further order of the court.

   6.That there be a partial or interim property settlement in this matter by way of a payment by the respondent wife to the applicant husband of the amount of $67,000. 

   7.That the respondent wife be restrained from seeking any payment to her from the account being [M Ltd] BSB […] Account No. […] in the names of [the wife] and [Ms LM] and [Ms MM] and [Ms MS] [A] Superannuation Fund.

   8.An injunction against the respondent wife in favour of the applicant husband for the personal protection of the husband and in particular that the respondent wife:-

   (i)not communicate with the husband by any means other than through their respective legal advisors;

   (ii)stalk the husband;

   (iii)threaten, assault or harass the husband;

   (iv)enter or remain in and around the premises of [M] and [B2];

   (v)dispose of, damage or in any way deal with personal property in which the husband has an interest except with the consent of the husband or by order of the court.

   9.Such further orders as may be necessary.

   10.That the respondent wife pay the costs of the applicant husband in this application.

Orders sought by wife (interim)

1. The wife simply sought a dismissal of all applications brought by the husband.

Orders sought by husband (final)

1. In his application filed on 11 May 2006 the husband seeks the following orders by way of final alteration of property interests and spousal maintenance:-

   1.That the husband and wife forthwith do all acts and things and execute all deeds, documents, instruments and writings necessary to procure the sale of the former matrimonial home known as [B1] and being the whole of the land in Certificate of Title Folio Identifier […] hereinafter called the matrimonial home by private treaty and in particular:-

   1.1Place the matrimonial home with a real estate agent (hereinafter called “the agent”) for the sale of the matrimonial home by private treaty at the earliest possible date;

   1.2Execute all documents requested by the agent for the sale of the matrimonial home;

   1.3Pay to the agent any sums requested for advertising expenses in relation to the sale;

   1.4Give such instructions to solicitor (sic), for the preparation of an appropriate contract and other documents as are necessary for the sale of the matrimonial home, provided that the parties approve the contract of sale prior to its execution;

   1.5Cooperate in every way with the agent in relation to the sale of the matrimonial home including making a key available, allowing inspection of the matrimonial home at (sic) time requested by the agent and ensuring that the matrimonial home is in a neat and clean condition at the time of inspection by prospective purchasers;

   1.6Execute the contract of sale;

   1.7Execute all other documents necessary to complete the sale of the matrimonial home.

   2.That the husband and wife do all acts and things necessary to procure that upon the sale of the matrimonial home the proceeds of sale be paid in the following manner and priority:

   2.1In payment of the amounts required to discharge all mortgages registered over the matrimonial home;

   2.2In payment of the agent’s expenses on the sale;

   2.3In payment of legal costs on sale;

   2.4The balance to be held in trust in the names of both parties to be paid out in accordance with the orders sought in paragraph 3 in this application.

   3.That the pool of assets consisting, but not limited to, of all:

   3.1Realty within the Commonwealth of Australia;

   3.2Proceeds of any bank accounts;

   3.3Proceeds in trust for each of the parties;

   3.4Furniture;

   3.5Artworks;

   3.6Household goods;

   3.7Motor vehicles;

   3.8Proceeds of the sale of any property

   whether in the joint names of the parties, or in each of the party’s names LESS

   any liabilities in the form or:

   3.9Registered mortgages;

   3.10Provable loans;

   3.11Credit card debts

   to be divided in the proportion of fifty percent (50%) to the husband and fifty percent (50%) to the wife.

   Spousal maintenance

   4.That until the wife retires or she ceases full-time employment, the wife pay to the husband the amount of:

   Four hundred dollars ($400.00) per week during the period when the husband resides in the matrimonial home; or

   Such other amount to be assessed where the husband does not reside in the matrimonial home;

   By way of spousal maintenance.

   5.Pending the sale of the matrimonial home, that the wife maintain and pay as they fall due all mortgage payments, council rates, water rates and insurance, upkeep and cost of necessary repairs of the home.

   Superannuation

   6.That paragraphs 4 to 10 (sic) of these orders are binding upon the trustee of the State Super Fund.

   7.The operative date of these orders is four business days after the day on which a sealed copy of this order is served on the trustee of the State Super Fund.

   8.The member spouse is the wife, […], born […] June 1941.

   9.The non-member spouse is the husband, […], born […] June 1927.

   10.That whenever the trustee of the [S] Super Fund makes a splittable payment from the interest held by the member spouse, [the wife], in the [S] Super Fund and such other Fund in which the wife has an interest, the trustee shall pay to the non-member spouse, [the husband], fifty percent (50%) of each splittable payment and there be a corresponding reduction in the entitlement that the member spouse, [the wife], would have had but for these orders.

   11.That paragraph 9 (sic) of these orders has effect from the operative date.

   12.That until the happening of any of:-

   12.1The establishment of a separate account in the name of [the husband] in the [S] Super Fund and such other Fund in which the wife has an interest;

   12.2The transfer or “rolling over: into another superannuation fund of the payment split created by paragraph 9 hereof;

   12.3[The husband] satisfying a condition of release and being paid the payment split which was created by paragraph 9 hereof; or

   12.4[The husband] executing a waiver of rights within the meaning of Section 90MZA of the Family Law Act 1975 in relation to the payment split created by paragraph 9 hereof;

   12.5The member spouse, [the wife], be and is hereby restrained by herself, her servants or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of her interest in the [S] Super fund or any other fund in which the wife has an interest a “non splittable payment” within the meaning of regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the trustee of the State Super Fund or the trustee of any other fund in which the wife has an interest give effect to this order.

   13.That liberty to apply be reserved to the parties and to the trustee of the [S] Super Fund or the trustee of such other fund in which the wife has an interest to apply with respect to the implementation of the orders affecting the superannuation interest.

   14.The lawyers for the husband serve a sealed copy of these orders upon the trustee of the [S] Super Fund and or the trustee of any other fund in which the wife has an interest.

   15.That the parties divide equally as to the value all jointly acquired furniture and personal property currently in the former matrimonial home and retain to the exclusion of the other items of furniture, personal property and objet d’art owned by each party prior to the marriage.

Orders sought by the wife (final)

1. In her response filed on 27 June 2006 the wife seeks the following orders by way of final alteration of property interests.

   1.That the husband transfer to the wife all his right, title and interest in the property known as and situated at [B1] and being the whole of the land in Certificate of Title Folio Identifier […] within 42 days of the date of these orders.

   2.That the wife pay to the husband the sum of $350,000 simultaneous with order one above.

   3.That the furniture contained in the matrimonial property be divided as agreed between the parties, or in default of agreement for a period greater than seven days, upon the basis that the husband prepare a “A” and “B” list comprising of all items of furniture contained within the home, the wife thereafter select a list within seven days from the date of preparation (sic) submission of list to the wife, and the wife retain all items on the list selected by the husband, and the husband retain all items on the list not selected by the wife.

   4.That otherwise each party shall be solely entitled to the exclusion of the other to all other chattels of whatsoever nature or kind in possession of such party as at the date of these orders and that for the purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records, insurance policies (if any) are deemed to be in the possession of the beneficiary thereof, and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions of payment of such entitlements and the interest of any motor vehicle is deemed to be in the possession of the party whose name such motor vehicle is registered in.

   5.That in the event of either party refusing or neglecting to execute any deed or instrument necessary to give effect to all or any of the orders made herein, then the Registrar of the court shall be appointed pursuant to Section 106A of the Family Law Rules, to execute such deeds or instruments in the name of the said party and do all acts and things necessary to give validity and operation to the said deeds or instruments, upon the Registrar being satisfied of such refusal or failure, verified by way of affidavit.

   6.That the husband pay the wife’s costs of these proceedings.

ORDERS MADE 2 MAY 2007

1. On 2 May 2007 I made orders pending further order in the following terms:-

   1.Both parties are restrained from dealing with or further encumbering the property at [B1].

   2.The wife is restrained from dealing with her superannuation fund in a way which would have the effect of reducing the funds invested with M Ltd below an amount of $780,000.

DOCUMENTS RELIED UPON

1. The husband read the following affidavits in support of the applications relied upon:-

   8.1.Financial statement sworn 12 April 2007 and filed 13 April 2007;

   8.2.Husband’s affidavit sworn 5 January 2007 filed 5 January 2007;

   8.3.Affidavit of Ms Q sworn 5 January filed 5 January 2007;

   8.4.Affidavit of the husband sworn 7 March 2007 filed 8 March 2007;

   8.5.Affidavit of Ms T sworn 27 March 2007.

2. The husband did not read for the purpose of the interim application an affidavit sworn 13 April 2007. 

3. The wife read in her case the following documents:-

   10.1.Affidavit of the wife sworn 11 December 2006;

   10.2.Affidavit of the wife sworn 12 February 2007;

   10.3.Form 13 of the wife sworn 12 February 2007;

   10.4.Affidavit of the wife sworn 7 March 2007.

CHRONOLOGY AND UNCONTESTED FACTS

1. In the hearing before me the husband provided a case outline document.  That document contained information which is not in evidence before me (including things as basic as to the birth date of the husband).  The interim hearing, however, proceeded on the basis that this information was uncontroversial.  The wife did not seek to put these facts in issue or make any submission that would indicate that they were inaccurate.  Accordingly for the purposes of this application I set out in paragraphs 12 – 22 the following agreed facts.

2. The husband was born .. June 1927 and is 79 years of age. 

3. The wife was born … June 1941 and is 65 years of age.

4. The parties were married on … May 1985.

5. The wife was appointed as a public official in August 1986.

6. In July 1987 the husband, when aged 60, retired from the Public Service as a manager and took a lump sum in superannuation. 

7. The parties separated for about eight months between September 2004 and April 2005.  In April 2005 they reconciled.

8. The husband filed an application for final property orders on 11 May 2006. 

9. The husband left the matrimonial home on … 2006 at the request of the wife.  He currently lives in rented accommodation.

10. The husband retired from full time employment in 1997.  He has an income of $69 per week from a C pension plan. 

11. The wife is in full time employment as a public official. 

12. The husband has received $27,470 by way of interim property settlement.  The first payment of $15,000 was made on 5 September 2006.  The second payment was made in December 2006.  The second payment was to be $15,000 but the wife unilaterally reduced the amount because of expenses she claims that she paid in relation to removalist fees for the husband.

Matters which are contested

1. The husband asserts that from approximately April 2006 the parties lived separately and apart under the one roof in the matrimonial home at B1. 

2. The husband asserts that on more than one occasion the wife has been ordered to provide financial details of defamation actions (which orders were made 27 June 2006 and 28 August 2006) but has yet to do so.  In paragraph 30(h) of the wife’s affidavit sworn 12 February 2007 she says that she received $175,000 at the beginning of November 2005 as a final payout from defamation proceedings and the substantial part of those monies were paid against the mortgage at the B1 property.

3. The husband alleges there was an incident at a Sydney theatre on … 2006 which I will deal with in more detail later. 

HISTORY OF THIS CASE

1. There had been a number of other interlocutory skirmishes between the parties including an argument about whether or not Ms Q would produce financial information to the court.

2. The application for interim orders was originally filed on 5 January 2007.  The matter was before the court on 28 March 2007 but not reached.

3. In relation to the applications for final orders, the court vacated a pre-trial conference on 26 April 2007 and listed the matter in the defaulters’ list for 24 May 2007.  It is unclear at this stage when the final property hearing is expected to be heard.

PROPERTY INJUNCTIONS

1. The Full Court in M & DB [2006] Fam CA 180 at paragraph 46 made it clear that the “essential power being exercised… is simply described in s114(3)” of the Family Law Act 1975:

   A court… may grant an injunction… in any case in which it is just or convenient to do so…

2. In order to determine what is a “just or convenient” result, the Court will conduct an overall assessment of a number of factors. On this issue, the Full Court in M & DB noted at paragraph 51:

   … while ultimately a particular factor may overwhelm others, it is generally unwise to commence with a rigid focus on finding, to a particular standard of proof, one or more of a number of factors relevant only at a discretionary level and subsidiary to the ultimate question.

3. Factors relevant to the assessment in this case are:

   31.1.Inconvenience or prejudice of granting the injunction;

   31.2.Constitution of assets;

   31.3.The wife’s application for property orders which would require her only to pay to the husband the sum of $350,000;

   31.4.The sale of assets of the parties, mortgaging and transfer without notice to the husband;

   31.5.The value of the asset to be frozen relative to the entire pool;

   31.6.The likely outcome of the substantive proceedings;

   31.7.Whether the injunction sought is a greater restriction than is necessary, given what needs to be protected.

4. The husband has not given an undertaking as to damages.  That is not a fatal flaw in the context of the facts of this case.

S property

1. The wife has recently entered into a contract for the sale of one of the pieces of real estate which is in her name alone in Queensland.  The sale is not at arms length.  It has been sold to close relatives.  The sale price for S (“[S]”) was $235,000.  The current mortgage on that property is about $120,000 and the wife will receive about $115,000 from the sale.  The date of settlement was 3 May 2007.  The wife did not inform the husband of her intention to sell this property.

1. The wife in her financial statement sworn 12 February 2007 deposed that in her opinion S property was worth $270,000. 

2. Part of exhibit A is a letter dated 7 December 2006 from the wife’s solicitors in which it was agreed with the husband’s solicitor that the value of S property for the purposes of these proceedings would be $360,000.  The wife gave oral evidence that that was a mistake (implying that her lawyer did not have her instructions to make that concession).  Whether or not the wife is bound by that agreement as to value or whether or not the trial judge will allow further expert evidence in relation to the value of the Queensland properties will be dealt with in the context of the final hearing. 

Superannuation

1. The other significant financial dealing that has been made by the wife relates to her superannuation interests.

2. The wife’s evidence was that she was the sole controller of the fund notwithstanding the fact that her sister and daughters were also trustees of the fund.

3. In the wife’s financial statement sworn 23 June 2006 the wife said that she had $237,476 in the A (which the wife has spelt “[…]” in her June 2006 financial statement) Superannuation Fund (the “[A] fund”) and $1,062,689 in the S  Superannuation Scheme (“[S Super]”).

4. In the wife’s financial statement sworn 12 February 2007 the amount in the SASS had remained the same but the amount in her self managed fund had reduced from $237,476 to an amount of $113,061.73. 

5. In the wife’s financial statement sworn on 2 May 2007 the whole of the wife’s superannuation interests had now been rolled over into her self managed superannuation fund.  The amount in the A fund had reduced to $1,080,922.03.

6. The effect of that evidence is that between June 2006 and May 2007 the wife’s superannuation had reduced by an amount of approximately $220,000 ($1,300,165 - $1,080,922).  It is unclear in the evidence before me as to precisely how the wife has dealt with the whole of the sum of $220,000 although her evidence was that the amount of $65,834, which is currently deposited in the N Credit Union (item 37 of her financial statement sworn 2 May 2007), was part of the $220,000 taken from the fund.

7. The husband’s solicitor in her affidavit of 27 March 2007 sets out an analysis which shows that monies have been paid to the wife’s sister, to her lawyers, to Mr R, to Mr P and Ms M (the wife’s daughter) from the superannuation fund.

8. The wife had not consulted the husband on any of the movements in her superannuation which have been described above.

Mortgage on S property

1. At paragraph 30(d) of the wife’s affidavit sworn 12 February 2007 she says: “there are no mortgages on the two Queensland properties”.  Exhibit B is a letter from the husband’s solicitors to the wife’s solicitors asserting that inquiries reveal that there was a mortgage to the N Credit Union secured on the title of one of the Queensland properties on 9 November 2006.  Whilst that is a hearsay statement, the wife did not in the hearing before me attempt to put that statement into dispute or to otherwise resolve the conflict between her sworn evidence and the hearsay statement in exhibit D.

2. It seems the wife had borrowed monies against the previously unencumbered property at S.  The amount borrowed was $120,000.

3. Paragraph 8 of the husband’s solicitor’s affidavit of 27 March gives some detail as to how the wife has used the $120,000 borrowing.  Monies have gone on legal fees, to her sister, to Mr R, on travel and $7,200 on private inquiry fees. 

4. In her affidavit the husband’s lawyer gives hearsay evidence about the loan contract.  She says the loan documentation indicates that the $120,000 was borrowed for the wife to pay $80,000 as to legal bills and the balance of $40,000 to the wife.  It is asserted that the wife has spent that money on payments to her sister, to Mr R (presumably the relative to whom S property has been sold), household furniture, travel and $7,220 in private inquiry agent’s fees. 

5. Again the wife did not consult the husband about this borrowing.

The assets of the parties

1. The significant assets of the parties (using either agreed values or the husband’s value) are:-

   B1 property  $1,200,000

   H property  370,000

   S property  360,000

   Wife’s furniture  90,500

   Husband’s furniture  5,000

   Wife’s superannuation  1,300,000

   Husband’s interim property settlement  27,000

   Husband’s motor vehicle  13,000

   Husband’s shares  12,900

   $3,378,400

   Less mortgage on B1 property  481,000

   $2,897,400

2. The husband’s application for final orders is that he receive 50 per cent of the overall assets of the parties, whether held jointly or severally.

3. The husband therefore would be seeking an order in his favour which would give him assets of about $1,450,000.  He already has assets worth $53,000 ($27 + $13 + $13), so in round terms his claim is about $1,400,000.

4. It was agreed that the equity in the matrimonial home is about $720,000 ($1,200,000 – $480,000).  On those calculations, if the husband’s application is successful, apart from freezing the equity in the matrimonial home, the husband would also need to receive security in relation to a further $680,000 worth of assets ($1,400,000 – $720,000).

Undertakings given by the wife

1. The wife offered certain undertakings in evidence in chief. She refused to offer undertakings in certain terms in cross examination and undertakings were given from the bar table in submissions.  Fundamentally it was put to me that I should accept the undertakings of a public official and that that is sufficient security for the husband in this case.  The wife did not provide an undertaking that she would not dispose of the fund or the home, rather she undertook not to do this without giving 21 days notice. 

2. I have decided, however, that the husband should not be put to the risk of having to make another application similar to the one he is seeking before me between now and the final hearing regarding this issue. 

Conclusion about property injunctions

1. The wife lives in the former matrimonial home which has an equity of about $720,000 and controls all the other significant assets developed by the parties since they were married.

2. The husband contends that the wife has dealt with the S property without reference to him in a way that raises suspicion as to the price at which it has been sold.   

3. The husband submits that some restraint on the wife’s unfettered dealings with property is appropriate pending the final property hearing.  In support of this submission the husband points to both the transactions in relation to the superannuation fund and in respect of the borrowing against S property.

4. Having considered the inconvenience or prejudice to both of the parties of granting or not granting the injunction, the constitution of the assets, the competing property applications of the parties, the value of the assets to be frozen relative to the entire pool and the likely outcome of the substantive proceedings I conclude that it is just and convenient to grant an injunction in favour of the husband restraining the parties from dealing with or further encumbering their property at B1 and restraining the wife from dealing with her superannuation fund in a way that would have the effect of reducing the funds invested with M Ltd below an amount of $680,000. 

PERIODIC SPOUSAL MAINTENANCE

The Husband’s needs

1. The husband in his financial statement sworn 12 April 2007 says that he has no income from salary or wages.  His income is $78.00 per week from a combination of interest on investments and benefits from the C Pension Plan.  The husband’s current investments are offset by existing liabilities. 

2. The wife submits that I cannot simply conclude that a 79 year old man has no earning capacity absent any other evidence from him in that regard.

3. The wife in her affidavit of 12 February 2007 provides the following information at paragraphs 31 to 33:-

   31.At the time of the marriage the husband was permanent head of a […] Department of the Public Service.  Subsequently he became super-numerary, and was located in the Public Service Board, thence to another Department of the […] Public Service.

   32.Prior to his appointment to the […] Public Service, I understand from what the husband has told me, that he had spent all his working life in academe, reaching the position of Professor and Head of School in universities in North America and in Queensland.

   33.From my observations of the husband and conversations with him, I believe the husband has the knowledge and skills to enable him to undertake work as a lecturer and/or instructor to aged persons.  The husband has Ph.D in health sciences.  From my observations he would be physically able to carry out such work. 

4. I do not know what market there is for the employment of fitness lecturers or instructors to aged persons.  At paragraph 26 of the husband’s affidavit sworn 5 January 2007 the husband says he enjoys walking and running and that that is an important part of his well being and health.  I however accept, at least on an interim basis, that the husband has no current earning capacity, notwithstanding the fact that he might be a relatively fit 79 year old man. 

5. The next submission made against the husband is that Ms Q is a financial resource which the husband has available to him. 

6. The wife relies on an affidavit as to her observations as to the types of times the husband and Ms Q spend with one another.

7. The husband says that he and Mrs Q have a intimate relationship but that they have independent financial arrangements and responsibilities.  Both the husband and Mrs Q assert that Ms Q has the full time care of two teenage children and is paying a mortgage on the property in which she lives.

8. The husband denies that he has ever resided in the home of Ms Q in a defacto relationship.  He says in his affidavit of 1 June that he has used Ms Q’s daughter’s bedroom and basement for his belongings.  Whilst he has been at Ms Q’s house he has contributed to living expenses by buying and paying for food.  He says on one occasion he gave Ms Q $250 towards household expenses and that he has given her the amount of $50 on a number of occasions.

9. It appears clear on the evidence that although the husband took a lease on the M property on 30 October 2006 he has spent nights at Ms Q’s property up until the beginning of January 2007.  His evidence in his affidavit of 7 March is that he has lived at the M property rented premises continuously and has slept there every night except for occasional visits to his children.  I take that evidence to be evidence about the period from January 2007 to March 2007.

10. There is insufficient evidence before me to conclude that there is any financial relationship between Ms Q and the husband.  Certainly it could not be characterised as a defacto relationship as implied by Counsel for the wife, although what longer term implications should be drawn from the facts surrounding their relationship will be a matter for the trial judge.  Nor do I think it safe, on the untested evidence before me, to conclude the husband should be expected to immediately move into Ms Q’s home. 

11. In a letter from the husband’s solicitor dated 23 November 2006 (annexure D to the wife’s affidavit sworn 11 December 2006) the husband asserts that he has taken up residence at premises at M.  He entered into a lease dated 30 October 2006.

12. The husband’s financial statement asserts that his expenses are $1,272 per week.  Counsel for the wife pointed to some extravagances in the amounts sought.  His submissions as to extravagance were confined to food at $220, motor vehicle maintenance at $100 and entertainment at $115.  Writing off some of those amounts and taking that write off away from the figure of $1,272 does not produce a result which is less than $984 per week, which is the amount sought by the husband in his application.  In addition, the husband claims that the $285 per week for rent of temporary accommodation does not provide him with accommodation of the same standard as enjoyed by the wife.

13. In his affidavit sworn 5 January 2007 the husband in paragraph 5 (page 12) says that he had shares and cash of about $31,000. 

14. In paragraph 5 of his affidavit of 7 March the husband deposes to the fact that he had as at 28 February 2007, $2,600 in his Commonwealth Bank account and $645 in his N Credit Union account.  He says that he has sold all his Telstra shares and expected to get $4,000 from that. 

15. The amount of cash and shares had reduced to an amount of about $15,000 as detailed in the husband’s financial statement sworn 12 April 2007.

16. He says that for the second time his car has been damaged by key scratches and insurance excess needs to be paid as well.  The husband also has potential medical and dental expenses as detailed in paragraph 9 of his affidavit sworn 7 March 2007.

Agreement as to the payment of $30,000

1. Paragraphs 4 through to 23 of the wife’s affidavit sworn 12 February 2007 set out and annex communications in relation to the agreement for the payment of these funds.  They demonstrate the wife accepted that the husband would need funds released to him for a period.  Whilst there is further information on this issue in the letter of 27 July 2006 by the wife to the husband, I take the view that that evidence is excluded by virtue of Section 131(1) Evidence Act.

Conclusion as to need

1. I find the husband has shown a need for $984 per week.

Wife’s capacity to pay

1. As pointed out during submissions, there was a substantial mathematical error in the wife’s expenses as set out in Part N on page 9 of her financial statement sworn 2 May 2007.  The total listed on that page was $2,567.  The actual total is $1,367.70. 

2. In addition, the wife agreed in her oral evidence that the loan repayment to N Credit Union in the sum of $187 per week was no longer applicable once the settlement takes place on the S property on 3 May 2007.

3. There is a further mathematical error in Part D of the financial statement.  The item total in 16 does not represent a total of items 9 and 10.  The wife’s income should be $4,593.75 per week not $4,340.48 per week.

4. The combination of these corrections that need to be made to the wife’s financial statement means that the wife does have the capacity to meet the order that is sought by the husband on a weekly basis.

5. I find that pending further order that it is proper for the husband to be paid spousal maintenance on a weekly basis in the sum of $984 per week.  

LUMP SUM SPOUSAL MAINTENANCE

1. The husband’s claim of $30,000 for spousal maintenance is on the basis that he wishes to have a better quality of rental accommodation until the end of 2007.

2. Whilst it may be possible to argue for lump sum maintenance: see Vautin and Vautin (1998) FLC 92-827; compare Clauson and Clauson (1995) FLC 92-595. However, in my view in the circumstances of this case it is my view that the amount claimed by the husband would be more appropriately provided by an interim property order.

INTERIM PROPERTY

The Law

1. When exercising power to make an interim property order the Full Court in Harris and Harris (1993) FLC 92-378 (at pp 79,929 – 79,930) said that the following matters need to be considered:

   84.1.The exercise of the power should be confined to cases where the circumstances presented at that time are compelling.  As a generality, the interests of the parties and the court are better served by there being one final hearing of sec 79 proceedings. 

   84.2.It is an exercise of the sec 79 power.  Consequently it must be performed within those parameters.  Since it is not the final hearing the Judge is unlikely to have the findings, but the exercise must fall within that general framework and the material available at that time.

   84.3.Of necessity it is likely to be a somewhat imprecise exercise.  Consequently it must be exercised conservatively and the Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both the parties at the final hearing or that the order which as contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so.

Compelling reasons

1. The combined effect of orders 1 and 2 sought by the husband in his application filed 5 January 2007 is that he be paid $107,000. 

2. The husband’s financial statement sworn 12 April 2007 also indicates he had cash and publicly listed shares of $15,000 (items 37 and 38) but offsetting personal debts of $15,000 (item 50).

3. The husband in his affidavits deposes that his current accommodation is of a significantly lower standard than what he enjoyed during the marriage and what the wife continues to enjoy given that she continues to have the occupancy of the matrimonial home. 

4. The husband sets out his current living arrangements, particularly at paragraph 3 of his affidavit sworn 7 March 2007.  He describes being humiliated and depressed by the cramped flat in which he lives, having been used to a comfortable lifestyle.

5. At paragraph 26 of the husband’s affidavit sworn 5 January 2007 he sets out things that he needs to make his current rented accommodation more liveable.

6. The husband asserts that he needs $30,000 to rent superior accommodation between now and the final hearing. 

7. On page 13 the husband indicates that the amount he needs for furniture and household items is about $13,000.  Paragraph 7 of his March affidavit indicate that there is $14,000 worth of purchases that he wishes to make.

8. The husband indicated at paragraph 26 of his affidavit sworn 5 January 2007 that the amount that he needs for legal costs and disbursements in relation to this case is $53,800.  His financial statement sworn 12 April 2007 indicated that that amount had increased to $80,000. 

9. The overall amount which the husband indicates he currently requires is $124,000 ($30,000 + $14,000 + $80,000). 

10. The amount I order however, should be limited to the actual application made by the husband in the sum of $107,000 ($30,000 (order 1 as sought) + $67,000 (order 6 as sought)). 

11. Whilst there has been no full accounting by the husband of the expenditure of funds that he has received so far from the joint matrimonial pool, I accept at face value the evidence as to his current financial position.  I accept his evidence that he wishes to make his current accommodation more comfortable and that he needs monies to pay his legal fees. 

12. Considering the circumstances of the parties at the current time I find that the husband presents a compelling case for a payment to him of $107,000 for the purposes referred to by way of interim property settlement of an amount out of the overall asset pool.

Does the order sought fall within the parameters of exercising power pursuant to Section 79?

1. The husband, in his case before me, chose not to give any information as to the basis upon which he makes an application under Section 79.  I take into account that even on the wife’s application, she would pay to the husband the sum of $350,000. 

2. Given that one of the significant assets of the parties is the wife’s entitlement to $1.3 million in superannuation, it is safe for me to assume that that asset has been substantially accumulated during the 20 years that the parties have been together.  As set out above I have taken it as an agreed fact that the wife was appointed as a public official the year after the parties were married. 

3. The amount of $107,000 represents about 3.7% of the overall assets of the parties.  I am confident that even if the wife at the final hearing received substantial credit in her favour based on contributions made to assets during the marriage, the husband may in those circumstances receive some adjustment due to Section 79(4)(d) – (g) matters. In any event I feel comfortable in concluding that the husband will receive at least 3.7% of the pool of assets at the final hearing.

Is the order sought a conservative exercise of power capable of being reversed at a final hearing?

1. I conclude that I can safely make an order for the payment of $107,000 to the husband confident that the remaining property will be adequate to meet the legitimate expectations of the wife at the final hearing. 

1. I find that the husband should receive an amount of $107,000 from the pool pending a final hearing.  

INJUNCTIONS FOR PERSONAL PROTECTION

1. A great deal of the material that has been filed relating to whether or not an injunction should be made for the husband’s personal protection.  Within the confines of an interim hearing, where there is no testing by cross examination of differing versions of events, I am unable to make any finding as to which version of particular events should be preferred.  There are however some undisputed matters which I will refer to below.

2. The wife at page 17 of her affidavit sworn 12 February 2006 does indicate that in May 2006 she received notification that the husband had lodged an application in the Family Court for spousal maintenance and property settlement.  She said at that time she was taken absolutely by surprise.  She says she did not think the marriage was over until the night of the incident in the Sydney theatre.

3. The husband says that there was separation under the one roof prior to … 2006.

4. Given that the husband had filed an application for final orders on 11 May 2006 it is a little unclear to me (and it has not been tested) as to how it is that the wife asserts that she had thought the marriage was on foot up until the night of the Sydney theatre incident which occurred in … 2006.

Incident at a Sydney Theatre

1. The husband and Ms Q place this event on … 2006.  The wife says it happened on … 2006.  The husband’s version of the Sydney theatre incident (see paragraph 9 of his affidavit sworn 5 January 2007) is in the following terms:-

   [Ms Q] and I were leaving the [theatre] after the [performance].  We crossed the [theatre foyer] towards the road.  We were holding hands.  I felt a sudden blow on the back of my head.  I turned around and saw the respondent standing immediately behind me with her handbag in her hand.  The respondent then swung her handbag and hit my hand.  The respondent verbally abused me and abused [Ms Q] in a loud and pugnacious voice.  I moved away from the respondent. The respondent said, “[…], don’t you dare come to my house tonight”.  I felt shocked and upset at the encounter.  We hurried away from the abuse.

2. Ms Q has filed an affidavit.  She confirms that an incident took place on … 2006 whilst she and the husband were walking away from the Theatre.  She was holding the husband’s right hand in her left hand as they were walking along.  She says that she felt a sting on her left cheek.  She looked at him in surprise and saw him looking at her with the same expression.  They both then turned to look behind them.  Ms Q says that she saw the wife who immediately struck again at their joined hands.

3. The husband makes a general assertion that the wife used abusive language on this occasion.  Ms Q’s evidence is more specific saying the wife used words including “you’ve been sleeping with that slag, that slut, and you want my money and so does she”.  Both the husband and Ms Q say that shortly after the incident they heard the wife tell the husband not to dare come home to the matrimonial home that night.

4. The wife in her affidavit sworn 11 December 2006 refers to the fact that on … 2006 she attended the theatre and observed the husband and Ms Q hand in hand exiting the theatre (her affidavit originally had … 2006 and it has been corrected in handwriting). 

5. In her affidavit sworn 12 February 2007 the wife denies that she has in any way assaulted, harassed or stalked the husband (paragraph 58).  The wife at paragraph 66 emphatically denies that she hit the husband and Ms Q with her handbag.  She says “I did tap the husband on my [sic] head with my […] program which was made of paper.  My handbag was over my shoulder, crossing my chest and my back.  I wear my handbag in this fashion so as to minimise any possibility of handbag snatching”.  The wife denied using abusive language.

6. The expression in her affidavit “I did tap the husband on my head” I do take to be an admission by the wife that she actually tapped the husband on his head.

7. The wife agrees that she yelled at the husband “you are a lying dog!”.  She agrees that she said to the husband “you are a lying, cheating hound!”.  She admits that she said to Ms Q  “You, you slut, that’s my husband you’re with”. 

8. The wife says she was with a long-time friend, Ms L who assisted her later that evening to dump the husband’s clothes and shoes and other effects down Mrs Q’s stairs.  Ms L has not provided any evidence to the court in relation to the incident that took place at the theatre.

Later that night

1. Ms Q gave evidence at about 11.45pm or midnight she heard things being thrown down her stairs.  She observed that the wife’s motor vehicle was in the front of her driveway and the wife was walking back towards her car.  Mrs Q observed that some of the husband’s clothing, shoes and paper files had been left on her premises. 

2. At paragraph 84 of the wife’s affidavit sworn 12 February 2007 the wife admits that she packed up some of the husband’s clothing into six garbage bags and loaded them into her car, stopped outside Mrs Q’s place and proceeded to throw the bags containing the husband’s clothes down Mrs Q’s steps.

3. The wife at paragraphs 67 and 84 of her affidavit sworn 12 February 2007 gives her version of the physical contact that took place between the husband and the wife in the matrimonial home prior to the police being called.  They give different versions of that contact and I am unable to resolve which version is accurate in the confines of this interim hearing.

4. The wife has not sought any order for personal protection for herself.

The next morning

1. The husband says the following morning he received a voice message from the wife in the following terms:-

   […], this is [the wife] here.  I am just ringing to let you know for your own sake that last night I signed an incident report which was taken by the police.  If you come anywhere near this place this weekend I will formalise that complaint.  You will be arrested and taken into custody and you will be taken before a court.  So don’t even think of coming into this house this weekend.

27 November 2006

1. The wife admits (paragraph 19 of her affidavit sworn 11 December 2006) that she came to the front door of Mrs Q’s residence on Monday 27 November 2006.

1 December 2006

1. In her affidavit of 11 December 2006 the wife gives an incomplete version of what she says happened when she came upon Mrs Q’s residence for the purposes of speaking to the husband.

2. At paragraph 95 of her affidavit sworn 12 February 2007 the wife admits that she entered upon Mrs Q’s property on this day.  She admits she was very angry when she did so.  She concedes Mrs Q asked her to “get off my property, get off my property”.  The wife admits that she did not leave.  The versions of the husband, the wife and Ms Q as to what happened at Ms Q’s property on 1 December 2006 vary and I am unable in the confines of this hearing to say which versions are accurate.  The wife however does agree at paragraph 94 of her affidavit that she did call Mrs Q a mad cow and that she did threaten that she would smash her nose all over her face.  She admits she said to Mrs Q “talk about your sister being mad, it must run in the family”. 

Observations of the husband at Ms Q’s home by wife

1. In an affidavit sworn 7 March 2007 the wife details observations made by her of the husband at Ms Q’s residence on about 20 occasions between 5 February 2007 and 7 March 2007.  The wife says that she has been able to make those observations when “undertaking my day to day activities including taking the garbage bins out to the street frontage at B1, travelling to work, riding my bike and walking”. 

2. At paragraph 91 of her affidavit sworn 12 February 2007 the wife concedes that she has attended the home of Mrs Q’s neighbour and from that property looked into the rear of Mrs Q’s property.

3. The husband’s evidence as to the lack of need for the wife to be down Mrs Q’s end of the street has not been contested.  I infer that some of the 20 observations made by the wife in the period referred to were made by the wife coming into close proximity to Mrs Q’s property.  Given all the material that I have before me (including the disputed material) it is appropriate that I make an order that the wife not go within 100 metres of Mrs Q’s property pending further order.  It is also appropriate for me to make an order that the wife not approach the husband and that communication between her and the husband take place only through their lawyers.

4. The husband says that B1 and B2 properties are a little less than 200 metres apart. 

5. The husband says that it is not necessary for the wife in the normal course of her daily routine to pass the residence of Ms Q.  He gives evidence that when he lived in the matrimonial home it was the wife’s normal routine to use a nearby street if she was driving or walking on her way to work or shopping or in order generally to leave the area.  He would do likewise.  He says that is the shorter way to those destinations and that going along B1/B2 past Ms Q’s house is a longer way of approaching those destinations.

6. At paragraph 28 of his affidavit sworn 5 January 2007 the husband says that the wife’s behaviour in driving past, walking, cycling and coming to the residence of Ms Q causes great distress to him and to Ms Q. 

7. It is clear that the wife is not welcome on Ms Q’s premises, either by Ms Q or the husband when he is there.

8. The husband has not directly asserted that it was the wife who “keyed” his motor vehicle on two occasions. 

Conclusion about personal protection orders

1. The wife has made no application for an order in her favour and absent a application I will not make an order against the husband.

2. Based on the matters referred to above, there is a basis for making a personal protection order in favour of the husband to the effect that the wife not communicate with the husband by any means other than through their respective legal advisers. 

3. There is also the basis for making an order that the wife not enter or remain in or around the premises at B2.  There is no evidence that I am aware of that the wife has behaved in any inappropriate way at M property.  Given that the former matrimonial home is 200 metres from B2 property, the appropriate order would be for the wife not to come within 100 metres of B2 property. 

I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.  

Associate: 

Date:  31.5.07

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CREST & OATES