Facchinello and Facchinello

[2012] FamCA 143

FAMILY COURT OF AUSTRALIA

FACCHINELLO & FACCHINELLO [2012] FamCA 143

FAMILY LAW - PROPERTY - Practice and procedure - Where the parties agree to pay for the obtaining of a CD recording of a prior hearing before the Federal Magistrates Court - Where the Husband agrees to provide an undertaking not to deal with the assets held in the subject self-managed super fund and its associated unit trust

Federal Proceedings Costs Act 1981 (Cth)

APPLICANT: Ms Facchinello

RESPONDENT: Mr Facchinello

FILE NUMBER: BRC 9918 of 2010

DATE DELIVERED: 20 March 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 20 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Best Wilson Family Law

COUNSEL FOR THE RESPONDENT: Mr Shoebridge

SOLICITOR FOR THE RESPONDENT: Jones Mitchell Lawyers

Orders

1. Upon payment of the prescribed fee by the parties, a compact disc recording of the trial proceedings before Federal Magistrate Cassidy on 4, 5 and 6 April 2011 be made available to the parties.

1. Upon the undertaking of the Husband in the terms noted below being provided by the Husband, the Application in a Case of the Wife filed on 23 February 2012 be dismissed.

1. The costs of the present applications be adjourned to the trial.

Notation

1. The Husband proposes to provide an undertaking, and these Orders are made upon the basis that he does provide such an undertaking, that he will not do any act or instruct any third party to do any act or thing with the intention of:

(a)       Accessing any funds held within the Facchinelllo Superannuation Fund including that held by the Facchinello Unit Trust; or

(b)       Selling, encumbering or in any way dealing with any asset of the Facchinello Superannuation Fund or the Facchinello Unit Trust;

other than with the written consent of the Wife.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9918 of 2010

Ms Facchinello

Applicant

And

Mr Facchinello

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On the applications before me, the Wife sought a number of interim Orders and I should record that the Husband sought by way of a Reply an Order with respect to the sale of a property held by either the Facchinello Superannuation Trust or the Facchinello Unit Trust, but the Husband did not, in the end result, pursue that Order so it is unnecessary for me to determine that part of the application.

2. The Wife seeks an Order that certain costs which are payable to the Respondent Husband from the proceedings that took place in April 2011 before Federal Magistrate Cassidy be held in a trust account, namely the trust account of the solicitors of the Husband, pending the trial of these proceedings. The Wife has received a payment of some $38,000.00 or thereabouts in relation to a similar Order made in her favour, and it is currently unknown what the amount paid to the Husband will be. The Wife’s funds are currently held in a trust account.

3. The basis of the Order sought by the Wife is essentially her case that substantial sums the Wife would say have been removed from the joint property of the parties post-separation; and that a significant trial issue will be the notional adding back of funds. That is combined with a submission to the effect that on one view of things, the non-superannuation pool of assets now between the parties may be as modest as $250,000.00 in value, with about $450,000.00 in value of superannuation assets. Of course, those figures were provided to me by the solicitor for the Wife when she was pressed to give me some idea of the range in terms of the pool, but in no way is it to be taken as in any way binding in terms of what the Wife may contend for at the final trial of these proceedings as to the final value of the pool.

4. In relation to that Order though, it seems to me that what the focus of the Court’s power and discretion to make Orders pending a final trial is really about is preserving a property pool that might be eroded before a trial of the proceedings can be held. It seems to me that the subject matter of the particular Order sought is in something of a different category. It is clear enough that the Husband would have had legal expenses to meet in preparing and conducting a trial on 4, 5 and 6 April 2011. No doubt that would have been in the Federal Magistrate’s mind in making an Order pursuant to the Federal Proceedings Costs Act 1981 (Cth) for there to be a payment from the Attorney-General because those proceedings had to be essentially abandoned.

5. In circumstances where it seems there are a large number of Orders that have been made during the currency of these financial proceedings, and there are significant issues to be raised at trial, it seems to me that where the Husband has already an existing onus under a variety of Orders to meet certain expenses, and Orders aside, is personally obliged under financial arrangements to meet debt payments and the like, I would need to be persuaded by conclusive evidence that it was necessary in the relevant sense to preserve the costs ordered under discussion. I have already mentioned that its quantification is yet to be determined, but it is probably reasonable to infer that the sum would be something akin to the sum that the Wife received pursuant to her Order (about $38,000.00).

6. On the material before me, it seems that there are a great many issues concerning notional add-backs and what has occurred with the property pool. Plainly enough, there is evidence that property that has already been sold has not yielded what it might have in an ideal world in terms of the parties being left with a deficit in terms of money owing on the particular property versus what it was sold for.

7. In those circumstances, it seems to me that what the Respondent Husband does or does not do with any funds he receives by way of a costs Order will be part of the overall case agitated by the Wife at the final property proceedings to determine whether there should be notional add-backs. I am not persuaded that I ought exercise the discretion to effectively quarantine that fund in circumstances where it is referable to monies that have been spent in conducting the relevant trial proceedings, which apparently through no fault of either party, had to be aborted.

8. There is also an order sought in paragraph 4 of the Order sought by the Wife that was modified in the course of the submissions before me. Initially, what was sought was an Order that the Respondent Husband do all acts and things to repair the gate and driveway and slash the property situated at B Street, Town A. The provision in respect of repair was deleted, as it were, from the Order sought so that in the end, what was sought was an Order that the Respondent Husband slash the subject property. However, in relation to this part of the application, it seems to me that this is a matter that has already been dealt with by previous Orders that have been made by the Court in relation to the maintenance of relevant properties and expenditure upon them. Indeed, there is a factual issue between the parties as to whether a marketing agent has suggested or not suggested that the whole of the property be slashed to facilitate its sale.

9. It seems to me that both parties can rely, where relevant, on the Orders that have previously been made by the Court so far as the preservation of the property pool, and I am not persuaded that it is necessary that a further Order be made, or persuaded that the Order already in existence has not been complied with.

10. Paragraph 6 of the Wife’s Minutes of Orders sought an Order with respect to a certain motor vehicle, but it has been acknowledged in the course of argument that there is a factual dispute between the parties as to the state of repair of the vehicle that cannot be determined by the Court on an interim hearing such as this. It will be an issue for the trial as to whether or not the motor vehicle was returned in working condition as was required by a previous Order made.

11. There is a further Order sought that a Third Party Debt Notice be issued with respect to certain payments to be made by the Husband, it is said, pursuant to an Order made on 14 December 2010. I have raised this in the course of the oral submissions with both parties’ representatives, and I include the transcript of those exchanges for the purpose of understanding these reasons. As to the precise status of the Order made on 14 December 2010 in the material respect, leaving aside the fact that that Order was made now more than a year ago, there have been further proceedings both in the Federal Magistrates Court and in this Court since that time.

12. It is submitted by the Husband that there is a real question about the status of the Order because of the nature of its terms, that is, what appears to be in the Order an interim arrangement for financial matters was agreed to, by way of consent, in circumstances where there was then no live issue so far as any child support departure Order being sought. The relevant Order relates to the payment of school fees for the children in paragraph 18(a)(v). At paragraph 12, as was pointed out by Mr Shoebridge, who appears for the Husband, there is an Order that, “…that pending further order of the court the parties do all acts and things and sign all documents to ensure the continued attendance of the children, [S] and [L], at [M School], and [D], at [M Child Care Centre].” The Orders which appear in paragraph 18 appear to have been made in that context, and were Orders made by way of Minutes of Consent in that respect.

13. In the event, it appears that the Husband is continuing to make payments referable to the level of school fees payable at the M School, albeit that there has been a subsequent Order made by the Court apparently permitting the children’s school to be changed. I am not satisfied that, properly construed, the Order of 14 December 2010 was a final Order in the relevant respect. I therefore cannot be satisfied that it is legitimate to issue a Third Party Debt Notice in respect of enforcement of that Order.

14. In any event, the Order as sought has some potential difficulties, being directed to third parties, and whilst it obliges those third parties to make payments and for such payments to be credited against monies otherwise payable to the Husband or his company, I would need to be convinced that the Order of 14 December 2010 has the effect which it is contended for on behalf of the Wife before confidently making any Order affecting the rights of third parties. As I have observed, I am not satisfied that the Order of 14 December 2010 can legitimately be treated as a final Order by way of departure or by way of child support in circumstances where there was no live application for child support departure at the time of the Order, and by its own terms the Order does not express itself to be made as and by way of an Order under the child support legislation.

15. I have already referred to the undertaking proposed to be given by the Husband which addresses what was sought in paragraph 8 of the Minutes of Orders contended for by the Wife.

16. For those reasons, and other than the Orders I have specifically made, I dismiss the Wife’s Application in a Case for interim Orders and likewise dismiss the Husband’s application for interim Orders by way of his Response, and I propose to reserve each party’s costs of and incidental to the interim applications.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 March 2012.

Associate: 

Date:  20 March 2012