Farrow and Farrow (No 2)

[2020] FamCA 794

FAMILY COURT OF AUSTRALIA

FARROW & FARROW (NO. 2) [2020] FamCA 794

FAMILY LAW – PROPERTY SETTLEMENT – Consent order – Where interim orders were made by consent in June 2020 – Where, amongst other things, those orders provided for the wife to deliver the dog, J, to the husband and to pay the husband spousal maintenance and $35,000 for litigation funding – Where the wife contends that she did not provide proper informed consent to those orders, cannot afford to pay the husband the sums ordered and now seeks that the orders be set aside – Where the husband seeks that a real property in the parties’ joint names be sold and that the net proceeds of the sale be paid to his solicitor’s trust account and disbursed to him in compliance with the June 2020 consent orders – Where the wife seeks that a different real property held in the parties’ joint names be sold – Where both real properties will be sold and a payment made to each the husband and wife by way of partial property settlement.

FAMILY LAW – COSTS – Interim litigation costs funding – Where the husband also seeks a “dollar for dollar” litigation costs funding order – Where the wife resists that application.

Family Law Act 1975 (Cth)

Anderson and Anderson (1982) FLC 91-251
Collins v State of Queensland [2020] QSC 154

APPLICANT: Mr Farrow

RESPONDENT: Ms Farrow

FILE NUMBER: BRC 5077 of 2020

DATE DELIVERED: 22 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Drysdale

SOLICITOR FOR THE APPLICANT: Lander & Rogers (Brisbane)

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITOR FOR THE RESPONDENT: Damien Greer Lawyers

Orders

1. That paragraphs 1 and 2 of the Orders made by Justice Forrest on 22 June 2020 are discharged with any amounts of money already paid to the husband by the wife pursuant to those Orders to be categorised by the Trial Judge who ultimately determines final property adjustment and any other financial orders as between the parties.

2. That paragraphs 3, 4, 5 and 6 of the Orders made by Justice Forrest on 22 June 2020 are discharged.

3. That paragraph 7 of the Orders made by Justice Forrest on 22 June 2020 is discharged.

4. That paragraph 9 of the Orders made by Justice Forrest on 22 June 2020 is discharged.

5. That paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the Orders made by Justice Forrest on 22 June 2020 are discharged.

6. That the husband’s application for interim periodic spousal maintenance is dismissed.

7. That the husband and the wife shall do all acts and things and sign all documents necessary to cause the sale of:

   (i)The real property situated at E Street, Town H, in the State of Queensland, more particularly described as Lot … on SP …, Local Government of Shire J, Certificate of Title No. … (“the Town H property”); and

   (ii)The real property situated at K Street, Suburb L in the State of Queensland, more particularly described as that land contained in Title Reference … (“the Suburb L property”).

8. That for the purposes of selling the properties the following shall apply:

   (i)Each property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders the real estate agent will be as nominated by the then Chief Executive Officer of the Real Estate Institute of Queensland at the request of the parties or either of them;

   (ii)The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these Orders the list price will be as nominated by the real estate agent;

   (iii)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 80% of the list price shall be accepted by the parties as the sale price;

   (iv)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;

   (v)Upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;

   (vi)The contract of sale shall provide for completion within 30 days after the date of the contract unless otherwise agreed in writing between the parties.

9. That in the event that either or both properties is or are not sold by private treaty pursuant to paragraph 8 hereof on or before Christmas Day 2020, then the husband and the wife shall do all acts and sign all documents as are necessary to sell the property or the properties by auction and the following shall apply:

   (i)The property shall be listed with the agent appointed under Order 8(a) (hereinafter called “the Auctioneer”) for sale by auction within a further 2 months;

   (ii)The parties shall execute all documents requested by the auctioneer for sale of the property by auction;

   (iii)The reserve price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;

   (iv)The parties shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties;

   (v)The parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer;

   (vi)The parties agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction;

   (vii)The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to by the property at a price that is at least 80% of the reserve price shall be accepted by the parties;

   (viii)The parties shall attend at the auction (either in person or by telephone) and negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached, for the purpose of reaching agreement under Order 9(vii);

   (ix)In the event that the property is not sold at the auction pursuant this Order or within 14 days after the date of the auction by further negotiation, then the husband and the wife shall cause a further auction of the property to be held within a further 2 months of the date of the first auction and for that purpose the provisions of this Order shall apply.

10. That either party shall be entitled to buy either or both the Town H and Suburb L properties provided he or she pays equal to the price otherwise determined according to the provisions of these Orders.

11. That pending settlement of the sale of the Suburb L property, the wife shall be entitled to continue to occupy the property to the exclusion of the husband.

12. That pending settlement of the sale of the Town H property, the husband shall be entitled to occupy the property to the exclusion of the wife should the property no longer be tenanted in that period or, whilst it continues to be tenanted in that period and rent is being paid by the tenants, the husband shall be entitled to continue to receive that rent to the exclusion of the wife.

13. That upon the settlement of the sale of each of the properties, after discharge of the mortgage that secures the property, payment of the agent’s commission and any costs of sale payable, payment of any legal fees and other outlays associated with the sale and payment of any arrears of local authority rates and any other such expenses, any balance of sale proceeds shall be deposited to an interest bearing account set up by the solicitors for the husband and the wife and held on trust for them by the solicitors for the husband and the wife with the first $110,000 of any such money to be retained in that account pending agreement between the parties or further order of this Court and with thirty thousand dollars ($30,000) of the balance, or such amount as is left if it is less than that sum of $30,000, to be divided equally between the husband and the wife and paid to each of them by way of partial property settlement in these proceedings.

14. That for each dollar the wife borrows from the business (or any of the entities through which the business is operated, including the entity through which the real property situated at M Street, Suburb D is owned) or from any line of credit secured by mortgage over any of the Town H, Suburb L or Suburb D properties, from the date of this Order, she shall cause an equal amount to be paid forthwith upon such borrowing or drawing (however the borrowing is described) to the husband by payment to the trust account of his solicitors with the categorisation of any such payments to be determined by the trial judge who ultimately determines final property adjustment and any other financial orders as between the parties.

15. That the husband shall have the sole use of the Motor Vehicle 1 registration number … but he shall be responsible for the costs of registration, insurance, maintenance and fuel for that motor car.

16. That the wife is restrained and an injunction hereby issues restraining her from taking any steps as the appointor of any discretionary trust that is the appointor of to remove or replace the trustee of any such trust or to appoint an additional trustee of any such trust or to resign as the appointor or to appoint any additional appointor to any such trust.

17. That the wife is restrained and an injunction hereby issues restraining her from resigning as a director of any company that she is currently a director of or appointing any third person, other than the husband, as a director of any such company.

18. That within seven (7) days of the end of each calendar month, the wife provide to the husband electronic copies of the following documents:

    (i)Statements of transactions for the previous calendar month of all bank accounts in which the husband and/or the wife have an interest, but also of any bank accounts of companies or trusts of which the wife is a director or appointor;

    (ii)Particulars of Payanyone transactions on any of those accounts included in (i) hereof;

    (iii)The latest completed Business Activity Statement for each of the business entities run by a company of which the wife is a director and/or owned by a trust of which the wife is the appointor.

19. That the parties do all things necessary to jointly engage N Accountants as the single expert pursuant to Part 15.5 of the Family Law Rules 2004 (Cth) to undertake a valuation of the Husband’s and Wife’s interests in the P Group and P Group shall be defined as:

    (a)Q Pty Ltd ATF R Trust;

    (b)S Pty Ltd ATF for the T Trust;

    (c)U Pty Ltd trading as V Trust;

    (d)Y Pty Ltd;

    (e)W Pty Ltd trading as Z Company; and

    (f)Any other entity in which either party holds an interest in or held an interest in during the last three financial years;

    and they shall each pay half of the costs of such valuation as and when that cost falls due.

20. That if the husband does not have any of the following items of personal property in his possession yet, the wife shall ensure that they are all made available for  his collection as soon as that can be arranged conveniently between them:

    (a)the items in the list referred to in the Wife’s Affidavit filed on 22 June, 2020;

    (b)the coin collection shall also include the Husband’s Mother’s note collection;

    (c)“Gifts from Family and Friends” shall include and not limited to:

    (i)2 x … memorabilia including head gear;

    (ii)… premiership including Jersey;

    (iii)… Triple Peat;

    (iv)… memorabilia – timber framed box with limited edition print and merchandise; and

    (v)… memorabilia poster;

    (d)the Husband’s Father’s tools;

    (e)back of utility boxes x 2 and contents.

21. The wife’s application for the return of the dog, J, is dismissed.

22. That in the absence of any agreement between the husband and the wife as to the payment by the wife of the husband’s costs of 22 June 2020, then any application by the husband for costs relating to the hearing that took place on that date be carefully particularised and filed and served, along with a brief supporting affidavit in which the costs claimed are itemised, and along with any written submissions in support, on or before Wednesday, 30 September 2020.

23. That any documents and written submissions to be filed in response by the wife shall be filed and served on or before Friday, 9 October 2020.

24. That if either party wishes to be heard by way of oral submissions in respect of any such costs application, he or she should notify the Associate to Justice Forrest in writing (email: ...) of such request on or before 12 October 2020.

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 Farrow & Farrow 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 BRISBANE

FILE NUMBER: BRC 5077 of 2020

Mr Farrow

Applicant

And

Ms Farrow

Respondent

REASONS FOR JUDGMENT

1. In 2001, the parties to this litigation commenced a relationship in Town H, north Queensland. They started living together later that year after they moved together to live in Brisbane. They married in 2002 and then moved back to Town H to live. They moved back to Brisbane to live in 2012 and have lived here since. It has been a nineteen year relationship.

2. At the time they moved back to Brisbane to live in 2012, the wife’s parents owned and ran a manufacturing business through a number of corporate and discretionary trust structures. The wife’s parents also owned the real property/factory premises from which they ran their business. They owned that through their self-managed superannuation fund.

3. There is no dispute that the wife and the husband both began working in management positions in the business after they moved to Brisbane in 2012. They started being paid salaries in those roles. There is also no dispute that in the years since then, control of the corporate and discretionary trust structures through which the business is owned and operated has shifted from the wife’s parents to the wife and the husband. Copies of the relevant trust deeds are not in evidence, but it is asserted in evidence that the trusts through which the business is operated include the husband and wife as “specified beneficiaries” but do not include the wife’s parents as members of the class of “additional members of general beneficiaries”. Importantly, it is not in dispute that the wife is the sole “appointor” of those relevant trusts. She also, apparently, has the power, in that role in each of the relevant trusts, to remove and replace the trustee. Indeed, in respect of one of the relevant trusts, she did remove and replace the trustee after she and the husband separated earlier this year. Additionally, the deeds are asserted to include provision that on her death, the husband, if he survives her, is to take over the position of “appointor” of those trusts.

4. There is no dispute that the freehold title to the factory premises from which the business operates was also sold by the wife’s parents’ self-managed superannuation fund to a company of which the wife’s parents, the wife and the husband are all equal shareholders in and all directors of, but which holds that real estate as trustee for another discretionary trust of which the husband and wife are said to be “specified beneficiaries” and the wife’s parents are said to be members of the class of “additional members of general beneficiaries”.

5. According to the husband, control of the relevant trust structures and corporate trustees shifted to the wife and him consequent to them purchasing the business from the wife’s parents for the sum of $800,000 on vendor financing terms, all of which he says has been paid by him and the wife over the ensuing years. The husband adduced some documentary evidence that, prima facie, lends some support to his assertion. It is in the form of an Excel spreadsheet bearing the heading “Payments towards Business Purchase” which has a lot of figures reflecting payments he asserts were payments treated as payments towards the purchase of the business by him and his wife, dating back to 2013. 

6. In addition, despite the evidence that the trustee company that bought the freehold title is owned equally by the husband and wife and the wife’s parents and that the wife’s parents remain “additional beneficiaries” of the underlying trust, the husband asserted in his evidence that he and the wife bought the totality of that freehold over the years as well.

7. According to the wife, (and it is evidence that, prima facie, is supported by evidence deposed to by her mother and by the family accountant), she and the husband have never purchased the business from her parents and the ownership and control of the corporate and trust structures that was indisputably transferred to her and the husband was simply done to let them run the business, ownership of which was still to be retained by her parents though, through the trust structures. Their evidence is that there were some “mistakes” or “errors” in the drafting of the deeds that effected the changes to the trust structures at the time, that do not reflect the parties’ actual intentions at the time. They say, as I understand their evidence, that the reality is, despite what the trust deeds ostensibly reflect, the wife’s parents still “own” the business.

8. In any event, the Court was told that the determination of that dispute is not part of what the Court is immediately being called on to decide. So, I will turn from that to go on setting the scene by referring to some more relevant historical facts.

9. The marriage relationship of the husband and the wife broke down earlier this year. They separated in February with the husband moving out of their jointly owned property in the northern suburbs of Brisbane and finding rental accommodation elsewhere. There is evidence that the separation came as a shock to the wife. There is evidence that suggests she did not want the separation or the marriage to end when it did. There is evidence that the wife has struggled over the years with her own ill health and that she also struggled in the last year or so of the marriage with the realisation that the husband was, in her mind at least, a problem gambler with an illicit drug habit. 

1. Following the separation, consequent on discoveries she said she made of the husband withdrawing funds from a company account without her knowledge or consent, and other associated matters, the wife very quickly took immediate steps to:

   (i)lock the husband out of any ongoing involvement in the business as a paid manager or employee; and

   (ii)use her powers as appointor of one of the discretionary trusts that owns the business (or part of it), to remove the corporate trustee of which the husband was the sole shareholder and director, replacing it as trustee with a company of which she is the sole shareholder and director; and

   (iii)withdraw from all business bank accounts, personal joint bank accounts and mortgage redraw facilities all available funds, depositing them into a bank account or accounts that she was confident only she could access.

2. Indeed, her own evidence was that she moved approximately $250,000 from various company accounts into another account, as well as a total of $30,000 from home loan redraw facilities that were secured by mortgages over two real properties that are owned jointly by her and the husband, one in Brisbane and one in Town H. By moving that money, she effectively denied the husband access to any of it. 

3. Without employment and access to funds, having to rent alternative accommodation, and unable to negotiate any suitable arrangements with the wife, the husband quickly commenced proceedings in this Court seeking interim orders for spousal maintenance, interim litigation costs funding, return of items of property to him, including a dog, disclosure orders, orders for valuations to be obtained and orders for a mediation to take place. His application was listed for a hearing in the judicial duty list before me on 22 June 2020. Of course, he filed an Application Initiating Proceedings at the same time.

4. The husband sought an order that the wife pay him $2,414 per week by way of periodic spousal maintenance. He also sought an order, by way of lump sum spousal maintenance, that the wife pay him $2,200 for rental bond, $37,500 to discharge credit card debt and $10,000 so that he could buy some furniture to re-house himself. He sought an interim litigation costs funding order that the wife pay him $60,000. He sought multiple disclosure orders in respect of documents that would be considered, prima facie, subject to disclosure obligations by the wife. He sought orders that provided for valuations to be jointly obtained, with the wife to pay for them in the first instance. He also sought for the return of certain items of personal possession, a motor car and the dog named J.

5. The wife was served with adequate notice and retained solicitors to act for her. An affidavit only (no Financial Statement and no Response) was filed by her on the morning of the interim hearing, just before 10:00 am. The matter was called over during a telephone call-over at the start of the day, necessitated by the COVID-19 pandemic special hearing arrangements put in place by the Court. The husband was represented by his solicitors and by experienced counsel. The wife was represented by her then solicitors and by experienced counsel. The matter was stood down in the list so that other cases could be heard in the morning and for negotiations to take place between counsel for the husband and the wife. In the early afternoon, the Court was told that the husband and wife had reached an agreed set of orders that they would each ask the Court to make with their consent. Counsel confirmed that and the orders were made in the terms asked for by the parties.

6. It can be seen that they dealt comprehensively with the subject matter of the husband’s application, though evidencing significant compromise on the husband’s part having regard to the scope of the Orders that he actually sought. In short, they provided for the wife to pay him $1,000 per week and a payment of $5,000 by way of spousal maintenance, $35,000 in interim litigation costs funding in two periodic tranches, disclosure of many listed documents and categories of documents, valuation of their interests in the corporate and trust structures, valuation of their real properties, delivery to the husband of certain items of property and, significantly, delivery to the husband of the dog named J.

7. A few days later, the wife withdrew her instructions from the solicitors who had been acting for her and her current solicitors filed a Notice of Address for Service, taking up her representation. A couple of weeks after that, the husband filed an Application in a Case seeking enforcement of the Order that the wife deliver the dog named J to him and for an order increasing the amount of periodic spousal maintenance she was paying him from $1,000 to $1,700 per week. The wife filed a Response to that Application in a Case seeking a raft of orders, including the setting aside of most of the orders that had been made on 22 June and an order that the parties’ jointly owned property in Town H be sold with the proceeds being used to pay out the mortgage liability and then to discharge the parties’ directors’ loans with the various corporate entities associated with the business. She also sought an order that funds already paid to the husband be treated as partial property settlement received by him and an order that valuations not be undertaken until “the declaratory relief sought” by her has “been determined by the Court as a preliminary question”. It is worth observing here, as I told counsel for the wife at the hearing on 15 September, that no Response to the Initiating Application in which any declaratory relief is sought by the wife is recorded on the Court’s digital file as ever having been filed by the wife.

8. Those competing applications came before Justice Baumann of this Court on 7 August. On that day, his Honour listed them for hearing before me in my judicial duty list scheduled for 15 September. His Honour also ordered that the wife comply with the order to deliver the dog named J to the husband. It is not in dispute that she did that subsequent to that order being made by his Honour.

9. Before the matter came on for hearing before me, the husband filed an Amended Application in a Case. By way of enforcement of the periodic spousal maintenance order made on 22 June and the interim litigation costs funding order made that same day, the husband seeks orders for the sale of the parties’ jointly owned Suburb L property in which the wife is still living and for the net proceeds of sale after payment of the mortgage debt to be paid to his solicitors trust account and then paid in compliance with the orders I have referred to. Pending sale, he seeks orders that the wife continue to be responsible for the payment of the mortgage repayments and outgoings associated with the property. Then, he seeks a further interim litigation costs funding order in the form of what is generally called “a dollar for dollar” order. That is that for every dollar the wife pays to her solicitors for her costs and outlays in these proceedings, she pay the same amount to the husband’s solicitors to pay for the husband’s costs and outlays in these proceedings. He also seeks orders for the valuations to still proceed and for the wife’s solicitors to act to ensure they do, as well as orders that deal with the disclosure that was ordered in the orders of 22 June.  In addition, the husband sought a further order that the wife pay him an additional $700 per week for his spousal maintenance.

10. The wife responded by filing an Amended Response to that Amended Application in a Case. She sought an order dismissing the husband’s Amended Application in a Case and all the same orders she had sought in her earlier Response. Additionally though, she also asked for an order that the dog, J, be returned to her. Once again, in her Amended Response, the wife referred to the declaratory relief she sought in her “Response to Initiating Application”. As I have already observed, no such document has reached the Court’s digital file to this date.

The Hearing before me on 15 September

1. The hearing took place by way of the Microsoft Teams online video meeting platform with each of the parties attending remotely and being represented by counsel. I had read the documents, including all of the affidavits relied upon, before commencing the hearing and told counsel that. I immediately started to hear their oral submissions.

2. Mr Alexander of counsel appeared for the wife. He submitted that I should set aside the Orders 1 and 3 to 7 and Orders 9, 20, 21 and 22 of the Orders of 22 June on the basis that the wife’s consent to those Orders being made was not a true consent. Principally, in support of that submission, he referred to the affidavit evidence of the wife and her mother filed on 6 August 2020.

3. In her affidavit filed that day, the wife deposed to the events leading up to and taking place on 22 June 2020. In short, she said that despite her inquiries of her solicitors between 14 May and 18 June about what was happening in respect of the matter that she had become aware of on 12 May, her solicitor “kept putting [her] off”.

4. She said that on 18 June her solicitor finally told her that he would come to her home on the weekend of 20 and 21 June to “do [her] affidavit”. She said the barrister who appeared for her at the hearing on 22 June was not briefed until 18 June. She said that on the weekend of 20 and 21 June, her solicitor attended at her home “for the purpose of preparing [her] affidavit”. She said the following:

   At approximately 8.00pm on Sunday 21 June 2020, [my solicitor] printed my affidavit and asked me to sign it. He appeared to be in a rush and kept telling me to just sign it. I told him repeatedly that I did not want to sign the affidavit as I had not read it. At 8.30pm, I again told [my solicitor] I did not want to sign the Affidavit however by this stage he was hurrying me to sign the Affidavit. I relented and signed it and it was witnessed by him even though I had not read it. The next morning, I read the affidavit and I saw that there were errors in it and I told [my solicitor] of this. He told me not to worry about these errors.

5. She went on in the affidavit filed 6 August to say that her solicitor had told her “before 22 June” that “for the hearing on 22 June he would settle the matter outside the court room”.  She said, further, “I did not know that the hearing on 22 June was an interim hearing of [my husband’s] application for me to pay him spousal maintenance and interim legal costs.”  She went on to say:

   [My solicitor] had raised the issue of [my husband] wanting me to pay him money in the week before the hearing but he did not mention anything about spousal maintenance or litigation funding but even if he had, I would not have known what they were. He kept saying to me that [my husband] wants money and that I would have to pay him something. I kept asking him why I had to pay him money and that I had no money to pay him anyway.

   From 18 June, 2020 up to and including 22 June, 2020, my discussions with [my solicitor] were mostly with him insisting I would have to pay [my husband] money and me repeatedly saying to him that I did not understand why I had to pay him anything and I don’t have any money to pay him anyway.

6. The wife also said that she did not know that she could attend the hearing by phone or that she could attend by being in her solicitor’s office on the day of the hearing. She said that she received “numerous phone calls from [my solicitor] during the morning of the hearing. During those phone calls he sought my instructions in relation to the orders. I do not know if [my barrister] was present for those discussions and I never met or spoke with [my barrister] directly.”

7. The wife said that she did not receive a copy of the orders from her solicitor until she received them by email from him at 4:30 pm on 22 June, after they had been made. She said she was told they had been made by the Court. She said:

   I was shocked when I read the orders. [My solicitor] had discussed a number of the orders with me but he did not go through a written draft of the Orders with me over the phone that morning. I spoke to him numerous times up to about 10.00am asking him what he wanted.

   Other than telling me he wanted financial documents and for me to complete the financial statement, he kept repeating to me that I had no choice but to agree to the orders he wanted me to agree to if I did not want to go to court. He kept telling me that if I won’t agree then I would have to go to court and I would end up paying [my husband] a whole lot more than what was being negotiated with these orders.

8. In her affidavit filed 6 August, the wife then goes through most of the paragraphs of the Orders of 22 June deposing to her position in respect of each one. In respect of paragraph 1 going to periodic spousal maintenance, she said, ultimately, “I was pressured into agreeing to this Order”.

9. As to paragraph 2 of the Orders that required the wife to pay the husband $5,000 within seven days, she said, “I felt pressured into agreeing to pay these funds to [my husband] even though I said to [my solicitor] on a number of occasions that morning I did not have money to pay [my husband] anything”.

10. As to paragraph 3 of the Orders that required the wife to pay all mortgage repayments and outgoings on their two properties as and when they fall due, the wife said that she did not agree to this Order.

11. As to paragraph 4 of the Orders that allowed the husband to be solely entitled to receive the rent received on the Town H property, the wife said that she had not been aware of this Order and did not agree to it. She said that she thought that if her husband was getting the rent from the Town H property (which she said he was, after unilaterally causing that to be redirected to him rather than deposited into their joint account) she thought he should be paying the mortgage and outlays on it.

12. As to paragraph 5 of the Orders that allowed for the husband to have the sole use of the Motor Vehicle 1 and paragraph 6 of the Orders that required the wife nevertheless to pay all registration, insurance and repairs for that Motor Vehicle 1 as and when they fall due, the wife said that although she had agreed for the car to be delivered to the husband, she was not aware that the husband was to have the sole use of the car and she said she did not know that the Orders were going to oblige her to pay the registration, insurance and repairs of the car until she read them after they had been sent to her.

13. As to paragraph 7 of the Orders that provided for the wife to pay the husband $35,000 by way of interim litigation costs funding, she said she kept telling her solicitor that she had no money to pay the husband and that she felt very pressured into agreeing to this order.

14. The wife did not say anything about the disclosure orders made in paragraph 8 of the Orders of 22 June. She went straight to paragraph 9 of those Orders which also requires her to provide ongoing monthly disclosure to the husband of certain financial documents relating to their accounts and any accounts of any entity in which they hold an interest, as well as some other documents, including BAS statements for those entities. The wife said that she was not aware of that Order until she saw it after it was made and she would not have agreed to it had she known of it.

15. The wife then went to paragraphs 12, 13 and 14 of the Orders that provide for valuations of the business entities and the real properties to be obtained. She said that she was not aware that these Orders were being proposed and that she would not have agreed to her “parents’ business being valued” or to pay all the costs of these valuations.

16. As to paragraphs 19 and 20 that the wife next went to, Orders that provide for the parties to engage in a mediation by 31 October 2020, the wife said that there was no mention to her of mediation. She said “I do not know what mediation is or what it is supposed to be used for. I would not have agreed to pay the cost of the mediator and the mediation room”.

17. As to paragraph 21 that provided for her to deliver certain listed possessions to the husband, the wife said that she was not aware of this until she read it in the Orders in the afternoon after they had been made. She said she would not have agreed to that Order as he can collect the items himself from the place in which they are stored.

18. As to paragraph 22 that provided for her to deliver the dog, J, to the husband she goes into almost a page of evidence saying that she could not speak with the solicitor about this as it upset her so much and she did not give him instructions to agree to that Order. She said that she collapsed outside the house when she went outside upset about this issue and that her mother told her later that she had taken over the discussions with the solicitor telling him to “do what he had to do”.

19. The wife’s mother’s affidavit filed 6 August also goes to the events of 22 June. She said that she was present with the wife during the telephone calls she had with her solicitor on that day. She said that the wife “placed her mobile phone on the speaker phone setting so that we could hear their conversations”.

20. She said that the wife had approximately eight to ten phone calls with the solicitor when he “obtained her instructions”. She said that the solicitor was “very rude and aggressive to [the wife] during these phone calls”. She referred to a call around lunch time where the solicitor “berated” the wife about her refusal to give the dog, J, to the husband. The wife’s mother said that she recalls the wife saying words “to the effect that she could never agree to an order in those terms”. The wife’s mother confirmed that the wife collapsed during this call. She said that she had heard the solicitor tell the wife that it would cost $100,000 to go on with a case about the dog. The wife’s mother said that she picked up the phone and told the solicitor that she did not know what to do and told him to “do what you have to do”. The wife’s mother made the point in her affidavit that “neither the wife, nor she or her husband have $100,000 to spend on litigation in relation to the dog.” She said that she could see the effect that the events were having on her daughter and she just wanted it to end.

21. All of that evidence is terribly concerning. If it is all true and the solicitor has acted on the day without informed instructions as is asserted, then he acted quite unprofessionally. Indeed, I asked the wife’s counsel if the wife had already made a complaint to the Legal Services Commission about the solicitor’s conduct and was informed that she has not. I made a direction that the Court be kept informed as to whether or not a complaint is made by the wife about her former solicitor.

22. No doubt conscious of the seriousness of the allegations made by the wife and her mother against the wife’s former solicitor, his Honour Justice Baumann had ordered, when the matter was before him, that the wife’s affidavits be served on both the former solicitor and the barrister who acted for her on 22 June. His Honour made no order that required either the solicitor or the barrister to respond or to do anything in response, but he did say in his reasons:

    They ought to have the opportunity, to the extent that they seek to do so, to put evidence before the Court, available for Forrest J on the next occasion.

23. Neither the solicitor nor the barrister put any evidence before the Court. Neither of them sought to appear before me. For the wife, it was submitted that the husband could have subpoenaed either of them to appear and to give evidence if he considered their evidence would have assisted him. For the husband, it was submitted that the wife could have put file notes or any other documents from the file that solicitor held into evidence if she thought they would help her and, further, that the wife could have waived privilege and had the solicitor give evidence for her. For my part, I am not greatly assisted by either of those submissions, save to say that the absence of any evidence contradicting the evidence adduced by the wife does make it impossible for me to say that I do not accept the evidence of the wife, particularly where there has been no cross-examination of the wife or her mother.

1. For the husband, it was also submitted that the husband’s legal representatives negotiated in good faith with the legal representatives of the wife on 22 June and that they had to accept, at face value, the validity of the consent that the wife’s legal representatives presented them with that day. It was submitted that there was significant compromise by the husband on that day having regard to his application and that there was evidence in the affidavit that was filed by the wife on the morning of 22 June that supported findings that the wife had access to funds from which she could pay the amounts agreed to. I accept all of those submissions as correct. However, I do not consider that those facts are determinative of the matter. 

2. Counsel for the husband also referred me to a recent decision of the Chief Justice of the Supreme Court of Queensland in his submissions. In Collins v State of Queensland [2020] QSC 154 her Honour Chief Justice Holmes dismissed an application by the Applicant in that case to set aside a Deed of Settlement entered into between the parties at a mediation conducted by an independent barrister. Both parties had been represented by solicitors and barristers at that mediation and the evidence was that the Applicant had actually given his consent to the settlement that was then confirmed in the Deed of Settlement. The Applicant, who was unrepresented on the application before the Chief Justice, mounted a number of arguments in support of his case to set aside the Deed. The one that is relevant to the case before me included argument that his own legal representatives’ conduct at the mediation amounted to improper conduct, duress, undue influence and unconscionable conduct.

3. Her Honour determined that there was no basis for a finding of improper conduct by the Applicant’s legal representatives. That was done after the Applicant’s former solicitor had given evidence at the hearing before her Honour. Her Honour found that the Applicant’s legal representatives had explained the effect of the Deed of Settlement to the Applicant and that he knew what it meant. He had been provided with a copy of it before he signed it and was intelligent enough to understand it. They suggested to him, her Honour found, that he should take time to consider it and that he chose not to take that course. Her Honour found that there was no evidence that the Applicant’s barrister and solicitor were motivated by anything but the desire to achieve the best outcome for the Applicant.

4. Before me, neither counsel referred to the decision of Lindenmayer J, a former distinguished Judge of this Court, in Anderson and Anderson (1982) FLC 91-251, which I consider worthy of mention. His Honour was determining an application for an extension of time to appeal against a final order of a Trial Judge of this Court pursuant to s 79A of the Act that had been made by consent. The Applicant asserted that he had been “overborne by pressure exerted upon him by his counsel and solicitor outside the Court, and that his consent to the compromise recorded in and given effect to by the Court’s orders was induced by that pressure, and by other stresses which he was under at that time.”

5. Lindenmayer rejected the arguments and dismissed the application. His Honour said:

   Counsel and solicitors representing clients involved in litigation in the Courts frequently subject their clients to considerable pressure to compromise that litigation. That is a necessary and proper part of the function of such legal representatives in the proper discharge of their duties to their clients and the Court. If every such compromise were to be open to attack by way of appeal by the client who subsequently thought better of it, there would be no end to litigation in this or any other Court. If in any particular case a client under no legal disability has been so overborne by his legal representative that such representative has breached the duty which he owes to the client in relation to the litigation then in train, … then the client’s proper remedy, in my opinion, lies elsewhere than in an appeal against the orders made with his consent in that litigation.

   The legal representative is the agent of the party, and the party is bound by the acts of his agent so long as they are within the agent’s actual or ostensible authority.

6. Though, I respectfully agree with his Honour Lindenmayer’s statement of principle in that case, I consider the facts of the case before me, at least at this point in the proceedings, to be distinguishable from the facts in both of those cases that I have just discussed. As I have said, the only evidence about what happened as between the wife and her former solicitor leading up to and on 22 June, is the evidence of the wife herself and her mother and I am not in a position to reject that. I do not consider it to be inherently incredible. It supports an uncontradicted finding that the wife never gave a truly informed consent to all of the Orders that were made by consent on that date. The wife was not in Court (even in the technical sense of being with her solicitor and counsel) when the minute of consent was put to the Court and the Court was asked to make orders in those terms. The wife, on her uncontradicted evidence, did not see the orders that were asked to be made until after they were made. The pressure she was subject to, on her evidence, and the evidence of her mother, was not the same sought of pressure that I consider his Honour Lindenmayer was referring to when he referred to “considerable pressure” that he considered to be a proper discharge of a lawyer’s duty. I consider it to have been far more serious pressure, such that it resulted, ultimately, in the wife collapsing from an adrenal crash associated with her existing illness.

7. Furthermore, though counsel for the wife did not make any submissions about s 83 of the Family Law Act 1975 (Cth) (“the Act”), I consider it to be applicable in part to the determination of the first aspect of this immediate dispute.  None of the Orders that were made on 22 June were final property, spousal maintenance or costs orders. They were all orders made pending the disposal of the proceedings. Principles that apply to final orders do not necessarily apply to them.

8. As for the spousal maintenance orders that were made, pursuant to s 83(1)(c) of the Act, the Court is empowered to discharge an existing spousal maintenance order of the Court if there is “any just cause for doing so”.

9. I am satisfied, on the evidence before me, that the spousal maintenance Orders made on 22 June, namely paragraphs 1 and 2 should be discharged as there is “just cause for doing so”. Firstly, as I have said, I am satisfied that the wife’s consent conveyed to the Court by counsel who appeared for her on that day, was not a truly, fully informed consent. Secondly, evidence that I have not mentioned yet is also relevant to this finding. The husband gives evidence that he obtained alternative, full-time employment from 1 July in a position with a business that paid him $60,000 gross per year. There is no evidence as to when he actually secured that position. There is very recent evidence that he has just resigned from that employment because of the “stress associated with these Court proceedings including the financial stress associated with same.” It is his evidence and it is totally unsupported by any expert medical opinion that he is not physically or mentally well enough to continue in that $60,000 per annum position. The husband’s evidence is also that he proposes to move back to Town H to live “closer to [his] family”, but he says he does not have any employment up there. That, of course, is not to say that he will not be able to secure any. For these reasons, I consider it just to discharge the periodic and lump sum spousal maintenance orders of 22 June and will exercise my discretion to dismiss the husband’s application to enforce them to the extent that any amounts unpaid pursuant to them are paid by the wife from the proceeds of sale of the Suburb L property.

10. As for the wife’s application for an order that any amounts already paid to the husband pursuant to those orders (and I am not entirely clear on exactly how much has been paid by her to date) to be “categorised as partial property settlement”, I will not make that order now as I consider that to be a matter better left to the final resolution of the property adjustment proceedings, either by agreement between the parties or by judicial determination by a trial judge.

11. The Orders that were contained in paragraphs 3, 4, 5 and 6 of the Orders of 22 June, are, in my opinion on one view of them, all just interim mandatory injunctions made pursuant to the power given the Court in s 114(3) of the Act. That sub-section gives the Court the power to grant an injunction “by interlocutory order or otherwise …in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.” The grant of that power implicitly contains the power to discharge an order made by its exercise where “it appears to the court to be just or convenient”. I am quite satisfied that these four paragraphs of the Orders should be discharged also because of my satisfaction, on the evidence that is before me, that the wife’s consent was not a fully, informed one and, indeed, not actually a proper consent at all.

12. As for the interim litigation costs funding order contained in paragraph 7, though the order did not express it, I consider that it was made pursuant to the costs power conferred upon the Court by s 117(2) of the Act. That sub-section gives the Court the power to make such order as to costs, whether by way of interlocutory order or otherwise, as the Court considers just, if the Court considers there are circumstances that justify it in doing so. Again, I consider this power also contains within it the implied discretionary power to discharge an interlocutory costs order if the Court considers there are circumstances that justify it in doing so. For the same reason as I have already determined in respect of the other discharge applications, I consider the circumstances justify the discharge of those particular interim litigation costs funding orders.

13. The wife also seeks to have paragraph 9 of the Orders of 22 June set aside. That order is as follows:

    That within 7 days of the end of each month, the Wife shall provide to the Husband by email for the previous month:

    9.1 A statement of all accounts in which the Wife, Husband or any entity in which the Husband and Wife hold an interest in showing all transactions;

    9.2 Particulars of Payanyone transactions; and

    9.3 BAS for all entities.

14. Again, I repeat, the wife’s evidence is that she did not consent to this order as she was not even aware that it was being proposed until after she was provided with a copy of the orders after they were made. It is an interim disclosure order and it is within my discretion, I consider, to set it aside if I consider there is just reason for doing so. The wife’s lack of consent is sufficient, in my judgment.

15. The wife also seeks to have paragraphs 20, 21 and 22 of the Orders of 22 June set aside. Paragraph 20 is an Order that requires the wife to pay for the costs of the mediator and the mediation room “in the first instance as and when payment falls due” in respect of a mediation that paragraph 19 provided the parties participate in before 31 October 2020. It appears the wife is not asking to have the mediation order set aside, just the order requiring her to pay the costs of it in the first instance. That is curious as in her affidavit evidence, the wife deposed to not even knowing what a mediation is, and, at the hearing before me on 15 September, counsel for the wife submitted that a mediation should not take place before the issue as to the ownership of the business is actually determined.

16. I will set aside both paragraphs 19 and 20 of the Orders of 22 June given that the wife’s evidence was that she does not even know what a mediation is, let alone that she did not give instructions to consent to such an order.

17. Paragraphs 21 and 22 are orders that required the wife to deliver to the husband, at her expense, certain items of personal property including J the dog. The wife’s evidence was that she was not aware of the requirement of paragraph 21 until she read the Orders in the afternoon after they were made. She said that she had caused the husband’s possessions to be put into storage after he left their home and that he could collect those things from the storage whenever he wishes. I will set aside paragraph 21 which is a s 114(3) interim injunction for the same reason as I have expressed earlier in respect of the other interim injunctions.

18. As for the order requiring the dog, J, to go to the husband, I am aware that Baumann J ordered that it be delivered to the husband in August and that it was. It has now been in his possession for some weeks. The wife asks me for an Order that J be delivered back into her care. Given that I am asked to consider that issue in that way, I do not consider it appropriate or necessary to discharge paragraph 22 of the Orders of 22 June. I will not.

19. The wife also asks for paragraphs 12, 13.3, 14 through to 18 inclusive to be stayed until the declaratory relief she says she seeks in her Response to Initiating Application is determined by the Court. I will not stay these Orders pending the determination of an application for declaratory relief that is said to be in a documents that has not yet been filed and which I have not seen. I will, though, set those Orders aside on the basis of the wife’s evidence that she did not consent to these Orders, not even knowing that they were being proposed.

What is to be determined next then?

1. For the wife, it was submitted by her counsel that if I set aside the Orders of 22 June that I would not make any orders in substitution for them because of the fact that the disputed ownership of the business remains a live issue and yet to be determined. Respectfully, I do not accept that submission. The existence of that dispute does not prevent me from determining the issues of interim spousal maintenance, interim litigation costs funding, the various interim injunctions relating to property, including possession of the dog, J, and the competing applications of the parties for interim orders for the sale of their two real properties. Indeed, the wife does actually seem to want the issue of the possession of the dog, J, determined.

2. In his Financial Statement filed 7 May, 2020, the husband listed in Part N under the heading Average Weekly Expenses expenditure requirements totalling $2,379. That figure did not include any amount for the mortgage repayments owing in respect of the two properties the parties own. I will not set out the entire list of expenditure that it did include, but for the purposes of this interim determination will simply say, particularly as the husband deposes to a current intention to return to Town H to live, that I do not consider that the following expenses asserted are reasonable to include in the circumstances:

   ·Entertainment and hobbies (reduce from $200 down to $50 per week)

   ·Holidays (reduce from $50 to Nil per week)

   ·Gardening and lawn mowing (reduce from $25 to Nil per week)

   ·Repairs – furnishings and appliances (reduce from $384 to $25 per week)

   ·Dry Cleaning and Laundry (reduce from $100 to Nil per week)

   ·Hairdressing and toiletries (reduce from $45 to $20 per week)

   ·Cigarettes (reduce from $260 to Nil per week – cigarettes are a completely optional consumption)

   ·Costs associated with upkeep of horse in syndicate (reduce from $150 to Nil per week)

   ·Rent (reduce from $550 to $300 per week)

3. This reduces the total of the husband’s estimated weekly expenditure that I consider reasonable for the purposes of determining his interim spousal maintenance claim to $1,010. As the husband was able to secure employment here in Brisbane for which he was being paid $60,000 gross per year and has voluntarily decided to resign from that and leave Brisbane and return to Town H, I consider that he has an earning capacity for that amount of money. There is no evidence as to how much tax is paid on that income, but as a gross amount it exceeds the amount of $1,010 by nearly $150 per week. In all the circumstances that currently present, I do not consider that he has a need for periodic spousal maintenance on an interim basis that the wife must be required to meet and I will not order it.

4. The next issue that I will consider is the question of interim litigation costs funding. This is a very difficult and troubling issue in this case. According to the husband, the property of the parties or either of them consists of the Suburb L real property valued at approximately $700,000, the Town H real property valued at approximately $280,000, a total of $980,000, but which secure total mortgage debt of $621,540, leaving equity of only $350,460. He says they otherwise have household contents, tools and a motor car worth around $40,000, his superannuation worth $161,000 and credit card debts. His credit card debt alone is about $37,500. He says he has a tax liability to the ATO of around $27,000. Of course, he also says that they own the business that I have already referred to but he does not know what that is worth.

5. According to the wife, the Brisbane house is worth $700,000 (she agrees with the husband on this) but the Town H property is only worth $240,000. She says the mortgage debt on the properties is $641,000 but also says they owe her parents another $110,000 that they borrowed from them to buy the Brisbane property. That would reduce their equity in the two properties to only $189,000. The wife’s estimate of the value of their personal property is less than the husband’s. She says she has $121,000 worth of superannuation. She says she, too, has personal credit card debts of around $41,000 and a liability of $18,000 to the ATO. As I have said, the wife says they do not own the business, despite the fact that she is the sole “appointor” of all the relevant trusts and can unilaterally replace the trustee and, therefore, control all trust distributions. She asserts that she and the husband owe the business entities a lot of money, yet to be properly determined.

6. At the hearing before me on 15 September, I had to call for costs notices that are required to be provided by the solicitors to the parties pursuant to Rule 19.04 of the Family Law Rules 2004 (Cth). They became exhibits in the proceedings.

7. I was totally flabbergasted, if I may respectfully use that word, when I read them both. It is to be remembered that the husband’s solicitors have represented him since he commenced his proceedings in early May this year and have appeared for him on three interim hearings. The wife’s solicitors have represented her since late June and have appeared for her on only two interim hearings. The husband’s solicitors informed him in the costs notice that he had incurred total professional costs and disbursements (inclusive of GST) of $81,235 and that, of that amount, he still owes them $35,505. They told him that there is another $5,456 to be billed for work already done for him and that they do not hold any money in trust for him. They told him that he could expect another $7,300 to $9,300 to be added to that amount he owes them after the interim hearing of 15 September. They also confirmed his instructions that the money he had paid them so far (about $45,730) came from borrowings from his mother and from credit card payments he had made.

8. The wife’s solicitors’ costs notice was even more dramatic than this, particularly in the light of the evidence of the wife and her mother that they did not have $100,000 to spend on legal fees, thus explaining why the mother felt under such pressure on 22 June. The wife’s solicitors told her that she had incurred costs and outlays with them alone (not including her former solicitors) of $85,120 inclusive of GST. They told her that there was another $9,469 worth of work done that was yet to be billed to her, taking that to almost $95,000 and they told her that she could expect that to go up to $100,000 after the interim hearing of 15 September but that did not include the amount she would have to pay her barrister for his appearance on that day – several thousand dollars more, I expect. That is over $100,000 in costs and outlays in less than three months and where there has been only two interim hearings in Court. The wife’s solicitors told her that she had instructed them that she had sourced the funds to pay them by borrowing from the business and from a line of credit facility. They said that she was now applying for a personal loan and that of all of the amount billed to her she currently actually still owes them $36,116.

1. If it is ultimately true that the husband and the wife do not have any interest in the business, then the costs of these proceedings will devastate them and destroy them financially, wiping out all of the value of the equity they have built up in their properties over the years. If it is true that they do actually own interests in the business that they have been running, then the costs of these proceedings will still devastate them and the financial viability of their business. That the Court was told that a mediation at which they might try to resolve their differences and settle their property and superannuation interests between them cannot yet take place is rather astounding, to say the least. However, as this Court cannot force litigants to go to mediation without their agreement, if it is that the parties wish to continue down this path of litigation in this Court paying the amount of money to their respective sets of lawyers that they have been paying to date, over this very short space of time, then, so be it. That is entirely a matter for them. As things stand, I say respectfully, the only ones to benefit if the litigation path is continued down as it is will be the lawyers.

2. As I have said, the wife’s costs and outlays have so far been paid by borrowings from the business and by accessing “a line of credit facility”. That facility was not identified in evidence, but it is to be remembered that the wife drew $30,000 from the mortgage redraw facilities secured over their two properties and put it beyond the reach of the husband. Perhaps she used that money to pay her own lawyers. That might explain the reference to “a line of credit facility”. Perhaps she did not. It appears, prima facie, that she has had access to funds out of the business and from a line of credit that the husband simply has not had access to. In addition, although the wife says in her Financial Statement that she is paid $1,713 per week from the business and that she pays $405 of that each week in income tax, thus leaving only $1,308 per week, the evidence establishes that she has been making payments to her own ANZ credit card for the period February 2020 to June 2020 that average $4,076 per week. That simply could not be possible unless the extra funds are being sourced from elsewhere, such as the business. Of course, some of the expenditure on that credit card might be business expenses, making it legitimate for the business to pay those amounts on the credit card. However, the credit card statements were adduced into evidence and a consideration of those does not persuade me that around 66% of the expenditure on the card is business related.

3. I am satisfied that the wife is, since separation, exclusively accessing benefits from the business and from the parties’ capital that the husband is not, save for the rent in the amount of $300 per week from the Town H property that he has caused himself to be paid since he redirected that his way. I am quite satisfied that the wife had an unfair advantage when it comes to the payment of litigation costs and outlays as against the husband. I am satisfied that the circumstances justify an interim litigation costs funding order and I will make such orders that I consider just. I am also satisfied that the parties are struggling to pay the mortgage repayments and outlays in respect of the two real properties. Indeed, despite the Order of 22 June that the wife pay these, she has a COVID-19 relief mortgage repayment suspension in place with the ANZ Bank in respect of at least the mortgage secured over the Brisbane property. I am convinced that in order to preserve their property interests as best as can be done whilst they continue to litigate at such high expense, and to ensure that both parties are able to access funds and pay for their chosen legal representation, that their two real properties should be sold quickly. Each wants one of them sold. I will order both of them to be sold.

4. I will order that both the real properties in Suburb L and Town H be sold by private treaty before Christmas and, if not, then by auction within a short time thereafter. As the wife continues to live in the Suburb L property rent free, I will order that the husband can continue to receive the rental income received for the Town H property if he does not move into it after moving up there, and live in it until it is sold.

5. I will not make any orders that the parties make payments towards the mortgage repayments, the rates and other outlays relating to the two properties. Whether they do or they do not will be a matter for each of them. If failure by one or both of them to make any of those payments results in further loss of equity upon the actual sale of those properties, that will be a matter for each of them to consider and deal with and, presumably, for the Trial Judge to ultimately consider under the ‘contributions” head of consideration when determining just and equitable property adjustment orders.

6. I will make an order that for each dollar the wife borrows from the business or from any mortgage facility or line of credit secured by mortgage over either or both the Suburb L and Town H properties or over the Suburb D factory property from the date hereof, she must also immediately pay the husband an equal amount with the categorisation of that to be a matter to be determined by agreement or the Trial Judge, but I would expect the husband to be able to use that money, if he receives any, to pay for his legal representation. If he does not get any, then at least the wife will have stopped borrowing against the business which she says is not theirs and she will have stopped borrowing further against their properties. I will also make an Order that the proceeds of sale of the two properties after the mortgages are paid out are invested in an interest bearing account held on trust for the parties by a partner from each of their current solicitors’ firms, with $110,000 to be retained pending determination of the dispute as to whether the husband and wife owe the wife’s parents that sum and with $30,000 of the balance, if there is that much left, or such amount as is left if it is less than that sum, to be divided equally between the husband and the wife by way of partial property settlement. They will be able to use that money to pay some of their costs if they wish.

7. I will order that the husband retain the sole use and exclusive possession of the Motor Vehicle 1 registration number …, but that he be responsible for the ongoing costs of registration, insurance, maintenance and fuel for that car from now on.

8. I will order that the wife is restrained until further order from taking any steps as appointor of any discretionary trust that she is the appointor of to remove or replace the trustee of any such trust or to appoint an additional trustee of any such trust or to resign as the appointor or to appoint any additional appointor to any such trust. I will also order that the wife is restrained until further order from resigning as a director of any company that she is currently a director of or appointing any third person, other than the husband, as a director of any such company. Those injunctions I consider to be just and convenient and necessary for preservation of the property of the parties or either of them in the period pending final resolution of these proceedings.

9. I will order that within 7 days of the end of each calendar month, the wife provide to the husband electronic copies of the following documents:

   (i)statements of transactions for the previous calendar month of all bank accounts in which the husband and/or the wife have an interest, but also of any bank accounts of companies or trusts of which the wife is a director or appointor;

   (ii)particulars of Payanyone transactions on any of those accounts included in (i) hereof;

   (iii)the latest completed Business Activity Statement for each of the business entities run by a company of which the wife is a director and/or owned by a trust of which the wife is the appointor.

10. I will order exactly the same as in paragraph 12 of the Orders of 22 June in respect of the preparation of valuations of the parties’ interests in those listed entities. Prima facie, the parties do have interests in those listed entities, particularly as the wife has the control of three of the discretionary trusts by way of being the sole appointor. I consider, at this point in the proceedings, the determination of the value of the parties’ interests in those entities will be a vital step in determining whether or not the assets of the entities or at least part of the assets of the entities are part of the property of the parties or either of them or form part of the financial resources of one or both of them. In any event, there is no application before the Court for a declaration such as that referred to in the wife’s Amended Response to an Application in a Case or for any preliminary determination of any issue in the proceedings. The valuation of the parties’ interests in the listed entities should proceed as quickly as possible.

11. As for the wife’s application to discharge paragraph 21 of the Orders of 22 June, I will discharge that order, but make a further order that requires the items listed in that order to be made available by the wife for collection by the husband if he does not have them already.

12. As for the wife’s application for the return of the dog, J, I observe, as was correctly submitted by counsel for the husband at the hearing before me, that animals, including pets such as J are not subject to Part VII of the Act. They are items of property and their possession is not to be determined by reference to any “best interests” concerns. Despite that, the wife has gone to some trouble to put evidence before the Court to try to establish that she has been the person who has been principally responsible for J’s care over the years and that J’s wellbeing is somehow dependent upon him being in the company of the two other dogs that the wife continues to retain in her possession. It is apparently asserted on her behalf that J’s best interests would be served by returning him to the wife’s care.

13. The husband has said all along in these proceedings to date that J is, in fact, his dog. Justice Baumann considered that J should be delivered to the husband when he heard the matter in August, notwithstanding the wife’s application to set almost all of the Orders of 22 June aside. The dog has been delivered to the husband pursuant to Baumann J’s Order. I do not intend to make another interim order that ‘ping pongs’ the dog back into the wife’s care at this stage. The husband’s evidence is that J is well in his care. That is where J will stay until the parties can determine by agreement where J stays long-term or until a Trial Judge determines otherwise on a final basis after a trial.

14. Finally, I wish to add that I will entertain any application made by the husband for his costs thrown away by the fact that the hearing on the 22 June 2020 came to naught. As counsel for the husband submitted, he and his instructing solicitor and the husband negotiated with the wife’s legal representatives in good faith on that day understanding the wife’s legal representatives to have ostensible authority to negotiate and enter into the agreement that was reached between them that day. That the wife’s solicitor did not have fully informed instructions to do so is not the husband’s responsibility and, prima facie, he should not have to bear costs wasted that day. Responsibility for that, however ultimately determined and apportioned between the wife and her then solicitors, would in the first instance likely have to be borne by the wife. I will order that in the absence of any agreement between the parties as to the payment by the wife of the husband’s costs of 22 June 2020 that any application by the husband for costs be carefully particularised and filed and served, along with a brief supporting affidavit in which the costs claimed are itemised, and along with any written submissions in support, on or before Wednesday, 30 September 2020 and for any documents and written submission in response on behalf of the wife be filed and served on or before Friday, 9 October 2020.

15. I make the Orders set out at the commencement of these written reasons.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 September 2020.

Associate: 

Date:  22 September 2020