Cull & Lenz (No. 5)
[2021] FamCA 163
•26 March 2021
FAMILY COURT OF AUSTRALIA
Cull & Lenz (No. 5) [2021] FamCA 163
File number(s): SYC 6598 of 2017 Judgment of: REES J Date of judgment: 26 March 2021 Catchwords: FAMILY LAW – INTERIM FINANCIAL RELIEF – Application by the wife for spousal maintenance – Competing applications for partial property distribution – Applications dismissed. Number of paragraphs: 49 Date of hearing: 26 March 2021 Place: Sydney Applicant: Self-Represented Counsel for the First Respondent: Mr Lethbridge SC Solicitor for the First Respondent: Nolan Lawyers Second Respondent: Self-Represented Third Respondent: Self-Represented Solicitor for the Fourth Respondent: HH Lawyers Solicitor for the Fifth Respondent: ZZ Lawyers Solicitor for the Sixth Respondent: Mr Zhu, Auyeung Hencent & Day Lawyers ORDERS
SYC 6598 of 2017 BETWEEN: MS CULL
Applicant
AND: MR LENZ
First Respondent
MR B CULL
Second Respondent (and others named in the Schedule)
ORDER MADE BY:
REES J
DATE OF ORDER:
26 MARCH 2021
THE COURT ORDERS:
1.That the applications of the wife for orders by way of partial property settlement or, in the alternate, spousal maintenance, filed on 5 December 2020; 13 January 2021 and 25 February 2021 are dismissed.
2.That the husband’s application for partial property settlement filed 24 March 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cull & Lenz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
Proceedings relating to parenting and property between Ms Cull ("the wife") and Mr Lenz ("the husband") were filed in 2017 and directions have been made for the preparation of the matter for final hearing.
The parties to those proceedings are the wife, the husband, the wife's parents and the wife’s former lawyers who claim to be owed funds.
One of the properties which is the subject of the property proceedings is the property at EE Street, Suburb FF ("Suburb FF") which is registered in the sole name of the wife.
On 12 February 2018, orders were made which, inter alia, restrained the wife from dealing with Suburb FF.
In breach of those orders, the wife on 4 June 2020, entered into a contract to sell Suburb FF to Mr Dea.
On 19 March 2021, orders were made for the appointment of a trustee for sale to complete the sale of Suburb FF to Mr Dea and preserve the proceeds of sale, after certain specified payments, until the substantive proceedings have been heard. Directions have been made for the preparation of the substantive proceedings which are listed for call-over on 16 April 2021.
The wife, who acts for herself, has filed a number of interim applications, seeking to vary the orders that were made to preserve the proceeds of sale of Suburb FF. Significantly, she has made no application for periodic maintenance.
The wife now seeks an order for the payment of funds to her. It is her case that she cannot move out of Suburb FF unless she has money to rent alternate premises for herself and the parties’ child.
By an Application in a Case filed 5 December 2020, the wife seeks the following order:
...
That on the same date as the settlement of the Suburb FF property, the Husband pays a lump sum equivalent to two years rent for accommodation of Wife Applicant and Son for a 3 Bedroom house or apartment within walking distance of the son’s school this amount estimated to be $145,600 ($1,400 per week for 104 weeks) which amount is refundable to the matrimonial asset pool, if unused, subject to the determination of the substantive proceedings.
…
(As per the original)
That application was supported by an affidavit of the wife sworn on 5 December 2020.
By an Application in a Case filed 13 January 2021, the wife seeks orders in the following terms:
Order 6 (d) to be varied as follows: “To pay the balance of the amount into a controlled monies account that is to be operated by Nolan Lawyers AFTER deducting an amount equivalent to $590,905 (as detailed in Application in a Case dated 17 November 2020 and its Affidavit of the same date Annexure A, as submitted by Wife Applicant Ms Cull,) which amount is to be held in a Trust Account of TT Lawyers and this amount is to be used for urgent disbursement of long overdue debts of Wife Applicant”
Order 9 (to be added) - That on the same date as settlement of the Suburb FF property, the Husband pay a lump sum equivalent of two years rent for accommodation of Wife Applicant and Son for a three-bedroom house or apartment within walking distance of the Son’s school this amount estimated to be $145,600 ($1,400 per week for 104 weeks) which amount is refundable to the matrimonial asset pool, if unused, subject to determination of the substantive proceedings.
(As per the original)
On 25 February 2021 the wife filed an Application in a Case. Under the heading “Orders now Seeking” the wife stated:
1.that as a consequence of paragraph 19 of the Court Judgement dated 8 December 2020, the sale of the property [at Suburb FF] currently used as Family Home for Wife applicant and her son [named] would be allowed to be postponed or invalidated due to the fact that alternative accommodation for them has yet to be made available or pending.
2.that Wife Applicant [named] and her son [named] be permitted to continue to stay at the Family Home known as [Suburb FF] with monthly mortgage payment therefor continued to be met by the Respondent Husband.
(As per the original)
That application was dealt with, reasons delivered and orders made on 19 March 2021 where the trustee for sale was appointed to facilitate the settlement of the sale to Mr Dea.
The wife, who acts for herself, has not specified the basis upon which she makes her applications and I propose to treat the present applications as applications for the payment of a lump sum either by way of interim property settlement or by way of lump sum spousal maintenance.
INTERIM PROPERTY SETTLEMENT
The husband estimates the net proceeds of the sale of Suburb FF to be $1,700,000. The evidence does not establish, at this time, that there is any other significant matrimonial property although the husband asserts that the wife has property in overseas jurisdictions.
The husband asserts that, at the time the parties separated in September 2017, they owned the Suburb FF property; a property in Japan; a property in the United Kingdom and two properties in China.
On 12 February 2018, orders were made restraining the wife from dealing with the properties in Japan; in the United Kingdom and Suburb FF.
The husband asserts that, in December 2017, without his knowledge, the wife borrowed $360,260 secured against the property at GH Street in China. She subsequently, in January 2018, sold that property receiving $198,635 which was paid to the wife’s father.
In July 2019, the property in Japan was sold and the husband and the wife each received half the net proceeds of sale, about $82,500 each.
Contrary to the orders of 12 February 2018, and without the knowledge of the husband, the wife sold the UK property and retained the whole of the proceeds of sale which the husband estimates to be $232,728.
Thus, on the husband’s case, the wife has already had the benefit of a total of $513,863.
A number of the wife’s creditors have been joined as parties to these proceedings.
The wife’s father and mother claim to be owed a total of $970,000.
ZZ Lawyers claim to be owed $100,000.
In addition to those creditors, a number of costs orders have been made against the wife in the proceedings to date. Those orders have not all been quantified but they are:
·Order made 24 November 2020 that the wife pay the costs of Mr Dea in the sum of $30,000.
·Order made 24 November 2020 that the wife pay the husband’s costs of the application heard on 11 November 2020 on an indemnity basis.
·In addition, there is an outstanding application for an order that the wife pay the costs of Mr Dea in relation to the application for the appointment of a trustee for sale of the Suburb FF property heard 18 March 2021.
Thus the claims against the wife by her creditors who are parties to the proceedings exceed $1,100,000.
If, as the husband asserts, the net proceeds of sale of Suburb FF of some $1,700,000 is the pool of assets available for distribution and it is ultimately found that the wife has already had the benefit of some $513,863 and her creditors claim in excess of $1,100,000, then it is possible that the wife will not receive any funds from the sale of Suburb FF.
In those circumstances, her application for partial property settlement must be dismissed.
SPOUSAL MAINTENANCE
The wife, in so far as I understand her application, seeks the payment of two years’ rent at the rate of $1,400 per week to enable her to move out of the Suburb FF property and to rent alternate accommodation in the same area.
The husband disputes the wife’s assertion that she is resident at Suburb FF and he disputes the wife’s assertion that she has no income with which to rehouse herself.
The husband contends that the wife has, in the past, rented out Suburb FF and lived with her parents in their apartment in Suburb EF where both she and their son have rooms.
The Suburb FF property was advertised on Airbnb in 2019 and the husband went to the property and spoke to one of the tenants.
The husband deposed that, in the last two years when he has attended to collect their son to spend time with him, he has collected the child from Suburb FF on only one or two occasions. On all other times he has collected the child from Suburb EF.
The husband deposed that an occupational therapist attends to the child weekly from November 2019 to date. The husband pays the costs and the invoices are directed to him. The husband relied on invoices relating to 52 sessions of therapy. Of those sessions, all but five have been at Suburb EF.
The husband asserts that the wife is both capable of employment and currently employed.
In September 2020, the wife was listed on a website with the title “[Business] Partner NSW” and the mobile phone number currently used by her.
The husband relied on an entry on the wife’s Facebook profile on 24 March 2021 which commenced:
Good day to you all, this is Ms Cull I will be CO hosting property educational seminars in the next 12 weeks in key sydney suburbs about property market in Australia abd how not to miss out in the growing Sydney and Off sydney markets
We specialise in New build, off plan, house and land, buyers agency, management real estate. Hi everyone. I’m a member of online real estate agency and DE Partners that specialises in new build, off plan and house and land properties and hot offmarket opportunities in Sydney, QLD, ACT, VIC.
We act as buyers agent for those selling existing property to buy.
We manage properties for investors, and provide funding (incl private and overseas funding) for developer.
…
(As per the original)
The wife provided no evidence in relation to this alleged employment. She swore a Financial Statement in which she deposed that she has no income.
The wife was employed as a finance professional at the commencement of parties’ relationship. Between 2002 and 2008 the wife was engaged in selling investment products and in 2012 the wife sold real estate on commission.
In December 2017 the wife borrowed $360,260 from QQ Limited for an investment which she told the husband subsequently failed.
Also in December 2017, the wife borrowed $894,222 from a private lender in City FG, China. She asserts that those funds were also lost.
The husband deposed that, according to documents available, he has ascertained that the wife owns investments in twelve overseas companies.
These are interim proceedings, conducted on the papers and without cross-examination. I accept that there are controversies of fact between the wife and the husband but those controversies cannot be resolved in this determination.
I am not satisfied that the wife is unable to support herself so as to meet the threshold test for spousal maintenance and I am not satisfied that the wife is unable to house herself on the settlement of the sale of Suburb FF.
The husband relied on a Financial Statement sworn by him on 24 March 2021. That document did not evidence any fund available to the husband from which either spousal maintenance or a partial property settlement could be paid.
The wife’s applications will be dismissed.
THE HUSBAND’S RESPONSE
The husband in his response filed 24 March 2021 sought a payment to him by way of interim property settlement of $219,188.12 from the proceeds of sale of the Suburb FF property. The husband wishes to pay his outstanding legal fees and to put his lawyers in funds for the preparation of the trial.
Having regard to the numerous and complex competing allegations in this matter relating to monies already had and received and the financial resources which may be available to both parties, I am not satisfied that any partial distribution of the proceeds of sale of Suburb FF could be appropriately accounted for in the final determination and I do not propose to make the order sought by the husband.
The parties are to file their trial affidavits by 4pm on 9 April 2021 and the matter is listed for the allocation of hearing dates on 16 April 2021. All outstanding applications will be dealt with in the substantive hearing.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 26 March 2021
SCHEDULE OF PARTIES
SYC 6598 of 2017 Third Respondent:
MS C CULL
Fourth Respondent:
HH PTY LTD
Fifth Respondent:
ZZ LAWYERS
Sixth Respondent:
MR DEA
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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