Garrey and Crosby

[2008] FamCA 40

FAMILY COURT OF AUSTRALIA

GARREY & CROSBY [2008] FamCA 40

FAMILY LAW – SPOUSAL MAINTENANCE - Interim

Family Law Act 1975 (Cth)

Mitchell and Mitchell (1995) FLC 92-601
Chapman and Chapman (1979) FLC 90-671
Ashton and Ashton (1982) FLC 91-285
Williamson and Williamson (1978) FLC 90-505 (Full Court)
Pritchard and Pritchard (1982) FLC 91-286
Redman and Redman (1987) FLC 91-805

APPLICANT: Ms Garrey

RESPONDENT: Mr Crosby

FILE NUMBER: SYC 2844 of 2007

DATE DELIVERED: 31 January 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice O'Ryan

HEARING DATE: 21 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Twigg (Adrian Twigg & Co.)

COUNSEL FOR THE RESPONDENT: Mr Campton of Counsel

SOLICITOR FOR THE RESPONDENT: Instructed by Pearson Family Lawyers

Orders

1. Pending further order by way of spouse maintenance the Husband pay direct to the Wife the sum of $750 per week the first payment to be made within 7 days of the date of this order and thereafter weekly in advance.

2. The Husband in his capacity as director and company officer of C Pty Ltd be restrained from doing or committing:

   2.1any act or thing which has the effect of diminishing the equity held by either the Husband or the Crosby Family Trust in C Pty Ltd;

   2.2causing or committing C Pty Ltd to sell, transfer, dispose of or otherwise deal with the assets of the Company which has the effect of reducing the equity in the Company;

   2.3doing any act or thing which has the effect of C Pty Ltd acquiring or disposing of any asset at a price in excess of $5,000, without first informing the Wife and giving the Wife 21 days written notice of his or the Company’s intention so to do, including the provision of full details of the proposed dealing;

   2.4doing any act or thing, or permitting C Pty Ltd to do any act or thing, other than in the ordinary course of business, without giving the Wife 21 days written notice of his or its intention so to do, including the provision of all relevant details in relation to the proposed transaction.

3. The Husband be restrained from reducing below $484,000 his account conducted with the National Australia Bank, without giving the Wife 21 days written notice of his intention so to do, such written notice to include full details of any proposed transaction including the purpose of such withdrawal.

4. The Husband be restrained from selling, disposing of, encumbering by mortgage or charge or, or otherwise or in any way dealing with shares or assets held by the Crosby Family Trust or by the N Trust without giving the Wife 21 days written notice of his or its intention so to do including the provision of all relevant details of the proposed transaction, the proposed sale price or borrowing and the proposed disposition of such funds.

5. The Husband be restrained from selling, disposing of, encumbering by mortgage or charge or, or otherwise or in any way dealing with shares or assets held by him except for the purpose of complying with order 1 hereof and paying the Husband’s living expenses without giving the Wife 21 days written notice of his intention so to do including the provision of all relevant details of the proposed transaction, the proposed sale price or borrowing and the proposed disposition of such funds.

6. The Husband provide to the Wife within 28 days of this order any and all contracts, memorandums of understanding, memorandums of agreement, any correspondence and any other documents evidencing any discussions and or agreements conducted between C Pty Ltd and/or anyone on behalf of C Pty Ltd in relation to any intellectual property owned by C Pty Ltd, in the period 1 January 2006 to date.

7. The costs of both parties be reserved.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Ryan delivered this day will for all publication and reporting purposes be referred to as Garrey & Crosby

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2844    of 2007

Ms Garrey

Applicant

And

Mr Crosby

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Before me for hearing are a number of interim applications which I will shortly identify.  The Applicant I shall refer to as the Wife.  The Respondent I shall refer to as the Husband.  It is a case about interim spouse maintenance and injunctions in circumstances where there are pending proceedings for settlement of property.

2. According to a case outline document filed on behalf of the Wife on 21 January 2008 she sought the following:

   1That pending further order the Husband pay to the Wife by way of spouse maintenance the sum of $5,000 per week, otherwise usual order.

   2That the Husband be restrained pending further order from:

   (a)   transferring or otherwise disposing of his interests in [C] Pty Limited;

   (b)  doing any act or thing which causes the [Crosby] Family Trust to dispose of any interest it may have whether by way of shares, loan accounts or otherwise in [C] Pty Limited;

   (c)  That the Husband in his capacity as director and company officer of [C] Pty Limited be restrained from doing or committing:

   (i)any act or thing which has the effect of diminishing the equity held by either the Husband or the [Crosby] Family Trust in [C] Pty Limited;

   (ii)causing or committing the company [C] Pty Limited to sell, transfer, dispose of or otherwise deal with the assets of the company which has the effect of reducing the equity in the company;

   (iii)doing any act or thing which has the effect of [C] acquiring or disposing of any asset at a price in excess of $5,000, without first informing the Wife and giving the Wife 21 days written notice of his or [C’s] intention so to do, including the provision of full details of the proposed dealing;

   (iv)The Husband be restrained from doing any act or thing, or permitting [C] to do any act or thing, other than the ordinary course of business, without giving the Wife 21 days written notice of his or its intention so to do, including the provision of all relevant details in relation to the proposed transaction.

   3That the Husband be restrained from reducing below $550,000 his account conducted with the National Australia Bank, without giving the Wife 21 days written notice of his intention so to do, such written notice to include full details of any proposed transaction including the purpose of such withdrawal.

   4That the Husband be restrained from reducing below $250,000 (or such other bank or other financial institution in respect of which the Husband or the [Crosby] Family Trust may have invested amounts that the Husband received as a consequence of his settlement with [H Bank]) his account conducted with the Macquarie Bank, without giving the Wife 21 days written notice of his intention so to do, such written notice to include full details of any proposed transaction including the purpose of such withdrawal.

   5That the Husband be restrained from selling, encumbering, disposing of or otherwise dealing with shares or assets held by him or by the [Crosby] Family Trust in public companies, without giving the Wife 21 days written notice of his or its intention so do including the provision of all relevant details including the proposed transaction, the proposed sale price and the proposed disposition of such funds.

   6That the Husband provide to the wife a withdrawal of caveat over the property at [M], and thereafter be restrained from lodging any further caveats against the property.

   7That the Husband forthwith provide to the Wife any and all contracts, memorandums of understanding, memorandums of agreement, any correspondence and any other documents evidencing any:

   a.discussions;

   b.agreements;

   conducted between [C] Pty Limited and/or anyone on behalf of [C] Pty Limited in relation to any intellectual property owned by [C], in the period 1 January 2006 to date.

   8That the Husband pay the Wife's costs of any incidental to this application in the event that he opposes these orders.

3. On 23 January 2008 I received a further minute of orders sought by the Wife which provides as follows:

   1That pending further order the Husband pay to the Wife by way of spouse maintenance the sum of $5,000 per week, otherwise usual order.

2.That the Husband be restrained pending further order from:

(d)transferring or otherwise disposing of his interests in [C] Pty Limited;

(e)doing any act or thing which causes the [Crosby] Family Trust to dispose of any interest it may have whether by way of shares, loan accounts or otherwise in [C] Pty Limited;

(f)That the Husband in his capacity as director and company officer of [C] Pty Limited be restrained from doing or committing:

(v)any act or thing which has the effect of diminishing the equity held by either the Husband or the [Crosby] Family Trust in [C] Pty Limited;

(vi)causing or committing the company [C] Pty Limited to sell, transfer, dispose of or otherwise deal with the assets of the company which has the effect of reducing the equity in the company;

(vii)doing any act or thing which has the effect of [C] acquiring or disposing of any asset at a price in excess of $5,000, without first informing the Wife and giving the Wife 21 days written notice of his or [C’s] intention so to do, including the provision of full details of the proposed dealing;

(viii)The Husband be restrained from doing any act or thing, or permitting [C] to do any act or thing, other than the ordinary course of business, without giving the Wife 21 days written notice of his or its intention so to do, including the provision of all relevant details in relation to the proposed transaction.

3.That the Husband be restrained from reducing below $484,000 his account conducted with the National Australia Bank, without giving the Wife 21 days written notice of his intention so to do, such written notice to include full details of any proposed transaction including the purpose of such withdrawal.

4.That the Husband be restrained from selling, encumbering, disposing of or otherwise dealing with shares or assets held by him or by the [Crosby] Family Trust or by the [N] Trust, without giving the Wife 21 days written notice of his or its intention so do including the provision of all relevant details including the proposed transaction, the proposed sale price and the proposed disposition of such funds.

5.That the Husband forthwith provide to the Wife any and all contracts, memorandums of understanding, memorandums of agreement, any correspondence and any other documents evidencing any:

(a)    discussions;

(b)    agreements;

conducted between [C] Pty Limited and/or anyone on behalf of [C] Pty Limited in relation to any intellectual property owned by [C], in the period 1 January 2006 to date.

6.That the Husband pay the Wife's costs of any incidental to this application in the event that he opposes  these orders.

1. So far as the Husband is concerned he opposes the relief sought by the Wife.  The Husband also seeks the following:

   1.That Orders 1.7 of the Orders made by Judicial Registrar Johnston on 21 August 2007 be set aside; and in lieu thereof, that a single expert be appointed as agreed between the parties, taking into consideration the costs associated with the preparation of such report and the qualifications of such expert.

   2.That Order 2 of the Orders made by Judicial Registrar Johnston on 21 August 2007 be set aside.

   3.That the husband be permitted to draw upon the moneys held in the controlled monies account to pay one half of the costs of any valuation obtained for the purposes of these proceedings and the wife be responsible for payment of the other one half.

   4.That Order 2 of the Orders made by Judicial Registrar Johnston on 24 August 2007 be set aside.

   5.That Order 3c of the Orders made on 9 May 2007 be set aside.

2. There are pending proceedings for settlement of property.  On 20 April 2007 an application for property settlement was filed on behalf of the Wife.  In summary, she seeks to retain the assets of which she is currently the legal and beneficial owner.  The Wife also seeks that the Husband pay her an amount of $5 million and discharge any mortgages secured on the title of a property at M.  On 8 June 2007 a response was filed on behalf of the Husband.  The Husband seeks that each party retain the assets of which they are the current legal and beneficial owner.  The Husband also seeks that the Wife pay to him the sum of $680,000 and discharge or refinance mortgages secured on the title of the M property.

3. As I indicated in discussion the amount of evidence relied upon by the parties was voluminous.  In total there were fifteen lengthy affidavits.  As well there were various exhibits.  The hearing proceeded in a summary way in that there was no cross-examination of either party or any witness.

4. The volume of material has made it difficult to readily obtain an overall assessment of the evidence relevant to the issues I have to decide and in discussion this difficulty was acknowledged by the lawyers.  However I accept that in part I am to blame because I did not, as perhaps I should have, restrict the number of affidavits the parties could rely on or the length of the hearing.  For example, a significant matter is the application for interim spouse maintenance and I did not enforce the restriction on the number of affidavits (r 5.09 Family Law Rules) or the restriction on the hearing time (r 5.10 Family Law Rules).

5. I will shortly set out my understanding of the nature of the hearing of the current applications.  What I find difficult to understand is how when a judge is confronted with a vast amount of written material and there is no cross-examination, he/she can be expected to read all the material and then determine the matter within a short period of time.  I take the view that if I am asked to read material I do so.  If material is read, and not objected to, I have to assume that it is all relevant.  In this case the lawyers struggled to identify what was relevant and only referred to a portion of the voluminous material.

BACKGROUND

1. The Wife was born in April 1959 and the Husband was born in July 1958.  The parties commenced cohabitation in December 2001 and were married in June 2003.  The parties separated on 18 September 2006 and were divorced on 29 November 2007.

2. There are no children of the marriage.  However, each of the parties have children from prior relationships.  The Wife has a daughter born in July 1980 (27 years).  The Husband has two sons, born in July 1991 (16 years) and July 1993 (14 years).

3. The Husband said that in 2001 his two children commenced to live with him for seven nights in each 14 day period.

4. The Husband has a degree in Business and he contends that he has worked in “business” for about 29 years.  When the parties first met the Husband was employed by H Bank.  He contends that in May 2001 he was advised by the Bank that his employment would not be continuing from on or about 23 August 2001.

5. The Wife completed a professional degree and qualified in 1992.  The Wife has not been in private practice since 1993 however she has worked for companies and financial institutions.  The Wife “moved into” management and from June 1996 until August 1998 was employed as a manager within a finance company.  From September 1998 until August 2001 the Wife was employed with H bank.  The Wife described her position as a senior executive role. 

6. The Wife contends that in August 2001 she suffered a major breakdown and on 20 August 2001 she ceased working.  However the Wife was paid her full salary entitlement until July 2002.

7. In August 2001 the Husband also ceased employment with H Bank.

8. The Husband contends that after he ceased working for H Bank he provided consultancy services through a company called T Pty Ltd.  The Husband contends that he has recently had to pay tax debts of this company.

9. On 29 November 2001 the Wife commenced legal proceedings against H Bank seeking damages.

10. As seen on 20 December 2001 the parties commenced cohabitation.

11. The Wife contends that at the commencement of cohabitation she had the following assets.

    ·A one half share of the M property, subject to a mortgage.

    ·A property at MS subject to a mortgage.

    ·An interest in three superannuation funds.

    ·Furniture and contents.

12. The Husband contends that he assisted the Wife with obtaining finance for the purchase of the M property by introducing the Wife to the National Australia Bank.

13. The Wife contends that as a consequence of her breakdown in 2001 she was not in a position to realise how dependent she was becoming upon the Husband and that initially he was very supportive and she gave evidence of some of the things he did.  The Wife also gave evidence as to how she contends she was affected by her illness.

14. The Wife contends that at the commencement of cohabitation she had three private sources of income being rental income from the MS property, rental income paid by the Husband until October 2003 with respect to his occupation of the M Property, and also a salary from H Bank for a period of twelve months.  The Wife contends that at the commencement of cohabitation her income from the bank was a base salary of $145,000 per annum plus a bonus of $65,000 per annum.

15. The Wife contends that she is not aware of the assets the Husband had at the commencement of cohabitation.  However a schedule of his assets was prepared in May 2002 and it disclosed that he had the following:

    $

    ·    Honda motor vehicle   29,000

    ·    Commonwealth Bank account   8

    ·    Commonwealth Bank account   934

    ·    Ms Garrey loan   12,900

    ·    One third share of A property   116,667

    ·    Golf Club subscription   42,500

    ·    Interest in W Facility  140,000

    ·    W loan   15,000

    ·    National Australia Bank account   5,493

    ·    Shares in National Australia Bank   363,900

    ·    Shares in H Bank   24,822.

    ·    Shares in TAB   835.

    ·    Flexiplus working account   143

    ·    J Pty Ltd   208,866

    ·    Share of proceeds of L Property   711,217

    ·    Total   1,672,285

16. The Wife then set out various liabilities which she contends the Husband had of a total of $1,234,467, with the result that the Husband had assets of a net value of $437,818.  The Husband in an affidavit he swore on 7 June 2007 said that to the best of his knowledge his financial circumstances at the commencement of cohabitation were as contended for by the Wife but for what he described as a chose in action against H Bank, furniture and household contents, and a liability to his first wife for 20 per cent of the gross benefits from H Bank.

17. At the time the parties commenced a relationship the Husband had not reached a property settlement with his former wife.  However on 13 August 2002 final orders were made in the Family Court in relation to property settlement between the Husband and his former wife.

18. In March 2002 the Wife made an application for workers compensation however the claim did not succeed.

19. In April 2002 the Wife commenced proceedings against H Bank in the Industrial Relations Commission of New South Wales seeking compensation.

20. On 6 May 2002 the Husband commenced proceedings against H Bank in the Industrial Relations Commission of New South Wales seeking compensation.  The proceedings were resolved in August 2006.

21. Between May 2002 and July 2004 the Husband was employed by P Pty Ltd as a group general manager.  The Husband contends that he was employed by P Pty Ltd between September 2002 and July 2004.  During this period the Husband was earning approximately $433,000 per annum.  In September 2002 the Husband accepted a permanent position with the Company.

1. In July 2002 the Wife ceased receiving from H Bank her full leave entitlement and thereafter was absent from work on unpaid leave.

2. From August 2002 the Wife received income protection insurance benefits as a consequence of an income protection insurance policy she had.  She received on average about $12,000 per month gross.  The policy provided that the benefits were to continue until the Wife was aged 65 years.  However as a consequence of a dispute with the insurance company payments ceased in May 2006.  The Wife contends that she would have to pursue legal proceedings in the event that she sought a continuation of the benefits of the insurance.  There is a significant issue in relation to the cessation of the insurance payments and whether or not the Wife has as a resource an opportunity to successfully pursue a continuation of payments by the insurance company.  The Wife contends that in order to keep receiving benefit payments under the policy she had to regularly consult a lawyer and pay legal fees.  She contends that to take the matter further by the commencement of proceedings, either to obtain an internal review or to commence litigation, would be considerably more expensive and there may be no net payment to her even if she was successful.  She contends that as well, the treating psychiatrist and the consultant psychiatrist both strongly recommended she cease receiving payments because they observed that the ongoing litigation and ongoing dispute with the insurance company was having a deleterious impact on her mental health.  The Wife contends that she neither had the will nor the resources to continue the legal dispute with the insurance company and as well her state of mental health was such that she did not “feel up to the fight”.

3. In December 2002 the Wife reached a settlement with H Bank of her claims against the bank.  In December 2002 the Wife received the first part of the settlement and in February 2003 she received the balance.  In total the Wife received $550,000 or $428,960 after payment of legal fees.  The Wife received further amounts of a total of $32,847 representing unpaid leave, etc.

4. The Husband contends that in December 2002 the Wife effectively resigned from H Bank.

5. The Wife contends that the whole of the amount of $428,960 was paid into the loan account with respect to the purchase of the M property.

6. The parties were married in June 2003.

7. The Wife contends that at the date of the marriage that the Husband had the following assets.

   ·Cash in the bank.

   ·Shares in T Pty Ltd which was a consulting company.

   ·An interest in the Crosby Family Trust which held bank accounts and shares in public listed companies.

   ·Shares in J Pty Ltd which was the trustee of the Crosby Family Trust.

   ·A unit in a partnership which owned the W Facility.

   ·Membership of a Golf Club.

   ·A one third share in a home at A, Victoria.

   ·Shares in National Australia Bank.

   ·Shares in TAB.

   ·A Honda motor vehicle.

   ·Shares in H Bank.

   ·An interest in the B Superannuation Fund.

8. The Husband said that he established the Crosby Family Trust on 18 February 1999.

9. The Husband contends that in August 2003 he sold his shares in the National Australia Bank and used the proceeds to establish a mortgage offset account.

10. In October 2003 the Husband established an arrangement for a mortgage offset account with a cash deposit.  The arrangement was intended to reduce the interest for the loan secured on the M property by an amount approximately equivalent to the weekly rental previously paid by the Husband.  The Wife contends the Husband was insistent about establishing the offset arrangement so he could use pre-tax value of money to satisfy what he described as his rental obligations instead of the post-tax cash monies he had paid between 2001 and 2003.  The Wife contends that the mortgage offset arrangement saved the Husband the equivalent of approximately $20,000 to $25,000 post-tax income a year.  The Wife gave other evidence in relation to this arrangement which for present purposes I need not repeat.  However in January 2007 the Wife discovered that the Husband had disconnected the mortgage offset account from the actual mortgage loan account and this had the consequence that there was no longer the benefit of a saving of loan interest from the loan offset account which the Wife contends equated to approximately $798 per week.  The Wife also contends that the Husband was able to withdraw the funds without prior consultation with her; receive income from the fund and the effectively stop paying any rental to the Wife and her daughter under the previous residential tenancy agreement.  There was considerable correspondence between the parties lawyers with respect to the utilisation by the Husband of these funds.

11. In March 2004 the Wife purchased a motor vehicle for $47,000 using a balance of the settlement she received from H Bank.

12. The Wife contends that in July 2004 the Husband was appointed a Group General Manager of W Pty Ltd, a company associated with P Pty Ltd.  The Husband contends that in July 2004 he ceased employment with P Pty Ltd and thereafter applied for over 30 positions.

13. The Wife contends that between September 2004 and September 2005 the Husband worked for the G Bank as a manager and was earning about $390,000.  The Husband contends that he commenced a consultancy role with G Bank in October 2004 and ceased in September 2005.

14. The Wife contends that in February 2005 the Husband inherited from the estate of his late mother a one sixth share in a strata townhouse at A in Victoria.  Prior to the death of his late mother the Husband held a one third share.  The property was then sold and on completion of the sale the Husband received half of the net proceeds of sale.  The Husbands contends that he received his inheritance in late 2005/early 2006.  He contends that he received $93,500 from the estate and $165,000 from the sale of his share of the A property.

15. The Husband contends that he decided to use his inheritance to fund living expenses and develop the business of C Pty Ltd.  As I read the evidence of the Husband what he is contending is that since late 2005/early 2006 he has not been in paid employment and has solely devoted his efforts to development of the business of C Pty Ltd.  The Company owns what has been described as a financial product. In his affidavit of 7 June 2007 the Husband gave evidence that, in summary, suggested that he ceased employment with G Bank in September 2005.  Thereafter, using the inheritance from his late mother’s estate, he devoted his energies to the business of C Pty Ltd.  The Company has not produced any income and thus by June 2007 he was seeking employment. 

16. I have no doubt that there are significant issues in relation to what the Husband has done since he ceased working for G Bank and the money spent on the development of the business of C Pty Ltd.

17. On 17 February 2006 the Husband made the Wife the appointor of the Crosby Family Trust.  Both parties are each potential beneficiaries.  J Pty Ltd, a company in which the Husband is sole shareholder and director, is the trustee.  The Crosby Family Trust was the owner of half of the issued shares of C Pty Ltd.  The Husband contends that the letter appointing the Wife as the appointor of the Crosby Family Trust was signed on 2 September 2006 and backdated to 17 February 2006.

18. The Wife contends that C Pty Ltd is in the process of developing a financial product for individuals and small business consumers, which is novel in Australia and other countries.  The Wife contends that the Husband and his partner have been successful in having several major Australian banks and some foreign banks together with Visa and Mastercard, interested in the product.  The Wife understands that C Pty Ltd would be remunerated should a bank or a credit card organisation take up the product.  C Pty Ltd would be entitled to a small percentage of, or a fee, for each transaction that occurs through the banking system and this has the potential to generate significant amounts of income for the company.

19. In May 2006 the Wife ceased to receive the income protection insurance.

20. In June 2006 the insurance company provided reasons for why it ceased making payments to the Wife.  I am not going to set out in detail what happened as it will probably be more fully considered at the hearing of the applications for property settlement.  However, the Husband contends that Dr R, who was a medico legal psychiatrist retained by the insurance company, provided a report dated 17 May 2006 in which he said that he did not believe that the Wife remained prevented from working.  Dr R had provided two previous reports dated 15 February 2005 and 5 April 2005 in which he had expressed the opinion that the Wife suffered from a severe and disabling mental condition.  He had formed this opinion after two interviews with the Wife.  However the opinion expressed in his report of 17 May 2006 was not based on interviews with the Wife but on his examination of surveillance tapes of the Wife between 24 February 2006 and 13 April 2006.  I do not know if Dr R has ever interviewed the Wife after looking at the tapes.  He may be called to give evidence at the final hearing if his evidence is relied upon by the Husband.

21. The Wife has not pursued any action against the insurance company and has given evidence explaining why she has not done so.  The Husband gave evidence about conversations he had with the Wife about taking action.  There are a number of issues that arise about the cessation of payments by the insurance company and why the Wife has not taken action.  Although it was not articulated by counsel for the Husband, I assume that the Husband is contending that if the Wife was justified in pursing action against the insurance company, as was urged upon her by her then lawyers, then she should have done so and if she succeeded she would be receiving a significant payment sufficient to support herself adequately.  However as the Wife has not pursued such a claim after the report of Dr R came into existence the inference to be drawn is that the Wife accepts that she is able to obtain paid employment.  These are complex issues which I am unable to resolve at this stage.  The affidavit of the Husband sworn on 7 June 2006 comprises 70 pages including annexures and there is a part of it (paras 36-55) that relates to the Wife’s state of mind and well being after August 2001.

22. In August 2006 the proceedings between the Husband and H Bank in the Industrial Relations Commission were settled without admission as to liability.  In August 2006 the Husband received a total amount of $1,526,331, of which 20 per cent was paid to his former wife, pursuant to a Family Court agreement entered into during the cohabitation of the parties.  The Husband was also allocated 62,500 share options.  There may be an issue at the final hearing about what the Husband has done with what he received.

23. The Wife contends that she assisted the Husband in relation to his litigation with H Bank and she gave evidence of what she did.  The Wife contends that a letter she extensively redrafted, addressed to the head of H Bank, was the trigger for the Husband’s settlement.

24. The Husband also obtained share options (62,500) with H Bank.  In order to convert the share options into shares the Husband was required to take out a margin loan.  The Husband did not have enough cash available to exercise the options without a loan.  The risk, at least notionally, in a margin loan, is that if the share price falls below a certain level, the lender will make up an available part or full repayment, so as to ensure the security remains safe.  This normally means a sale of shares is required, unless there are other funds available, which would be at a lesser share price.  A hedge product is like an insurance product, although it is not actually insurance, which protects the share owner against a call if the shares fall below a certain price.  The Wife gave evidence in relation to what she did to assist the Husband with respect to what she described as the association hedge product.  The Husband borrowed $1,702,830 from the Macquarie Bank.

25. The Husband contends that on 11 August 2006 he exercised 50,000 of the H Bank share options and financed the purchase through the Macquarie Bank.

26. On 18 September 2006 the parties separated.

27. In October 2006 the Husband received a dividend payment from H Bank being a total of $81,250.

28. The Husband gave evidence about a meeting in October 2006 with an investment banker about the business of C Pty Ltd and said that nothing happened.

29. At the end of November 2006 the Husband, without notice to the Wife, stopped depositing funds into the parties’ joint account.  On 18 December 2006 the Husband cut off the Wife’s access to his credit cards

30. The Wife contends that on 18 December 2006 the Husband ceased paying most of her living expenses.  In January 2007 the Husband ceased paying electricity, internet access, mobile phone bills, landline phone bills, Foxtel subscription, and e-tolls.

31. The Husband contends that in December 2006 he established a trust called the N Trust, of which the trustee is J Pty Ltd.  The Husband contends that although J Pty Ltd held the shares in C Pty Ltd for the Crosby Family Trust it now holds them for the N Trust, although there is no evidence as to how the sale or transfer was undertaken.  I accept that what happened will have to be investigated.  However there may be no issue as to how in the proceedings it is to be dealt with because in relation to C Pty Ltd in his June 2007 affidavit the Husband said that he and Mr W “…own 50% beneficially each”.

32. In mid January 2007 the Wife discovered that the Husband had disconnected the mortgage offset account from her mortgage.  This action resulted in the Wife and her daughter paying an extra $798 per week on the mortgage.  The Husband said he closed the offset facility on about 10 January 2007.

33. On 6 February 2007 the Wife’s solicitors wrote to the Husband’s then solicitors, Stuart Fowler & Partners, seeking information and documents.  The Wife contends that to date, they have not been provided.  The Wife also sought undertakings, inter alia, that the Husband not reduce his National Australian Bank balance below $550,000; not dispose of or deal with his shares in public companies; and not dispose of his Macquarie Bank account below $200,000 without giving 14 days’ written notice of his intention to do so, with details of the proposed dealings.

34. On 26 February 2007 the Husband’s solicitors wrote to the Wife’s solicitors and said they would produce the information and documents.  The solicitors also said that the Husband was only prepared to undertake not to reduce his National Australian Bank account below $484,000 without giving 14 days’ written notice and if he sold shares, he would immediately advise the Wife of the disposal and where the proceeds of sale are held.  The Husband declined to give other undertakings.

35. On 30 March 2007 the Husband exchanged contracts to purchase a property at B, for $1,350,000.  He gave no prior notice to the Wife or her solicitors.  To pay the deposit the Husband borrowed $135,000.

36. In March 2007 the Husband may have told the National Australia Bank that he would start drawing an income from C Pty Ltd of $240,000 per annum as from July 2007.  However, as it has come to pass the Husband contends that this did not happen.

37. In April 2007 the Husband received a dividend cheque for his H Bank shares.

38. On 20 April 2007 proceedings were commenced when an application in a case was filed on behalf of the Wife.  In this application the Wife sought interim spousal maintenance of $5,000 per week and various injunctions.  The injunctions, in summary, sought to restrain dealings with various assets.

39. On 27 April 2007 the Husband completed the purchase of the B property. He contends that he borrowed a further $573,419 from the Macquarie Bank.  There will be an issue about the source of funds to purchase this property.  I assume there will be evidence from Macquarie Bank.

40. On 8 May 2007 the Husband’s solicitors first informed the Wife’s solicitors about the Husband’s purchase of the B property.  It was said that documents would be forthcoming shortly.

41. The Husband gave evidence that he purchased furniture and furnishings for a total cost of about $100,000 which as at August 2007 had a market value of about $25,000.

42. On 9 May 2007, being the return date of the Wife’s application, the Husband said he needed more time to file material in response. 

43. On 9 May 2007 Judicial Registrar Loughnan made the following orders,

    1.That the matter is adjourned to 19/6/07

    2.That the husband file and serve a Response to the Wife’s Application by 6 June, 2007.

    3.That Pending Further Order:-

    (a)That the Husband be restrained from transferring or otherwise disposing of his interests in [C] Pty Limited.

    (b)That the Husband be restrained from doing any act or thing which causes the [Crosby] Family Trust to dispose of any interest it may have whether by way of shares, loan accounts or otherwise in [C] Pty Limited.

    (c)That the Husband be restrained from reducing the monies in the account No: … at the NAB below $484,000.

    (d)That the Husband be restrained from selling his [H Bank] shares (currently 62,500) before 10 August, 2007 without giving the wife 14 days notice of his intention such shares having an approximate nett value based upon the share price at 8/5/2007 after payment of secured liabilities and CGT of approximately $797,992.

    4.That leave be granted to legal representatives to inspect documents produced in response to paragraphs 1 & 2 of the subpoena to Stuart Fowler & Partners.

    5.Paragraph 3 of the subpoena referred to in the above paragraph is adjourned to 19/6/07.

    6.That the husband be granted leave to issue the following subpoena:-

    AXA

    National Bank

    Dr [R]

    Musgrave Peach

    [the wife’s daughter]

    [Mr Y]

    ING

    Westpac

    7.Note: The Husband’s assertion that his [H Bank] shares at yesterdays closing price were worth $3,371,875. The loan to purchase is $1,702,830 and is secured upon the shares. The Macquarie Bank has a secured loan of $573,000 over the shares used by the Husband to assist in the purchase of his [B] townhouse residence.

    8.Note:-That the husband asserts that there is no equity in [C] Pty Limited and that the only potential asset of the Company is a potential patent that is currently awaiting approval from the USA Patents Office that may take up to 5 years from the date of lodging the application being April 2006.

    9.That pending further order (and noting the Husband’s assertion that there is no equity in [C Pty Ltd]) the Husband be restrained from doing any act or thing (in his capacity as director or otherwise) which has the effect of (i) diminishing the nett asset position on [C Pty Ltd] (ii) causing [C Pty Ltd] to dispose of or deal with its intellectual property without first giving the wife 14 days written notice of his intention to do so.

44. On 8 June 2007 a response to an application in a case was filed on behalf of the Husband.  In summary, the Husband sought that the injunctions made on 9 May 2007 be discharged and the Wife’s application for spousal maintenance be dismissed.  The Husband also sought that he be entitled to a charge over M property and the Wife make available to him certain identified items of personalty.  In his affidavit in support the Husband revealed for the first time the apparent transfer of the shares in C Pty Ltd from the Crosby Family Trust to the  N Trust.

45. On 11 July 2007 the following orders were made by Judicial Registrar Johnston,

    1.That Stuart Fowler and Partners, and Stuart Fowler, be restrained from acting further for the husband.

    2.That the conciliation conference appointed for 9:15 am on 13 July 2007 is vacated.

    3.That a further conciliation conference is appointed for 11:00 am on 20 September 2007.

    4.That both parties are given leave to approach the Registrars’ Section and request appointment of a different conciliation conference date if 20 September 2007 is unsuitable to them.

1. On 25 July 2007 the Husband instructed Pearsons, Family Lawyers.  They sought an adjournment of proceedings on 7 August 2007.

2. On 3 August 2007 the Wife’s solicitors wrote the Husband’s solicitors advising of consent on terms to a further adjournment.  The Wife sought that in the event the Husband’s margin loan could not be refinanced, the proceeds less the original borrowing on the Macquarie Bank loan be held in an interest bearing account pending further order of the Court.  The Wife also sought that the other injunctions on 9 May 2007 also continue.  The Wife also sought certain disclosure of documents, and also payment of certain debts. 

3. On 6 August 2007 the Husband’s solicitors wrote to the Wife’s solicitors and advised that the Husband rejected the conditions sought for an adjournment, save to note that Orders 3(a), (b) and (c) made on 9 May 2007 continue “until further order”.  It was also said that documents concerning C Pty Ltd would be provided, but rejected a suggestion that discovery be provided prior to the conciliation conference.

4. On 7 August 2007 the following orders were made by Judicial Registrar Johnston,

   1.That the wife’s application that the husband be restrained from selling his [H Bank] shares is adjourned to the call-over of the Judicial Registrar's Duty List at 9:30 am on 21 August 2007

   2.That the husband is restrained from selling his [H Bank] shares until 6:00 pm on 21 August 2007.

   3.That the Court notes that the wife undertakes through her solicitor to abide by any order the Court might make in relation to damages in the event the Court should hereafter be of the opinion that the husband shall have sustained any such damage by reason of these orders which the wife ought to pay.

   4.That the remaining interlocutory applications are adjourned to the call-over of the Judicial Registrar's Duty List at 9:30 am on 12 September 2007.

5. On 7 August 2007 the balance of the Wife’s interim application was stood over to 12 September 2007.  Through his solicitor, the Husband advised the Court that the documents relating to the Macquarie Bank loan would be made available.  The Wife contends that to date, they have not been provided.

6. On 14 August 2007 the Wife’s solicitors wrote to the Husband’s solicitors asking for information, and seeking a number of documents.  It is contended that to date, the Husband’s solicitors have not replied.

7. On 21 August 2007 the following orders were made by Judicial Registrar Johnston,

   1.That orders are made in accordance with the type-written Minute of Orders filed in Court today and signed by Judicial Registrar Johnston and placed with the Court papers as attached hereto.

   2.That in the first instance the husband pay the costs of any valuation, the ultimate liability for such valuations is to be determined by the trial judge in the absence of agreement between the parties.

   3.That leave is given to the parties to contact Judicial Registrar Johnston’s Associate to confirm a time for listing before Judicial Registrar Johnston on Thursday, 23 August 2007.

8. On 21 August 2007 the Husband swore an Affidavit and said that he had no income other than about $18 per week in interest and dividends.  He also said that he was seeking employment.  This affidavit, including annexures, comprised 114 pages.

9. On 24 August 2007 the following orders were made by Judicial Registrar Johnston,

   1.That upon the sale by the husband of his shares in [H Bank] on or about 24 August 2007, the husband shall apply the proceeds of sale in the following manner and priority:

   1.1    to discharge the Macquarie Bank Limited loan in relation to such shares

   1.2    to pay to Macquarie Bank Limited the final interest on the Macquarie Bank Limited loan in relation to such shares

   1.3    to discharge National Australia Bank Limited loan account number […] secured over the husband’s home at [B] in the State of New South Wales

   1.4    to pay accountancy fees to [A Partners] in the amount of approximately $22,275

   1.5    to pay tax owing by [T] Pty Limited in the amount of approximately $79,803

   1.6to pay legal fees owing to Stuart Fowler & Partners in an amount of approximately $19,440

   1.7    to pay Virgin Visa in the amount of approximately $19,249

   1.8    to pay $100,000 of the balance into a controlled monies account in the name of the husband’s solicitor as trustee for the husband to abide further order of the Court or written agreement of the parties

   1.9    to pay the balance to the husband, from which it is noted that he proposes to pay outstanding accounts, liabilities, living expenses for himself and his children, and his costs and disbursements of and incidental to these proceedings.

   2.That upon and subsequent to the discharge by the husband of National Australia Bank Limited loan account number […] secured over the husband’s home at [B] in the State of New South Wales, the husband shall not sell, mortgage, assign, alienate or further encumber his interest in such home pending further order or written agreement of the parties.

10. On 24 August 2007 the Husband sold 60,500 H Bank shares for $3,316,005.  He gave evidence as to how the proceeds were paid out and $2,276,250 was paid to Macquarie Bank and $650,000 to the National Australia Bank to discharge the mortgage debt of the title of the home at B.

11. On 28 August 2007 an application in a case was filed on behalf of the Wife and she sought to review the orders made by Judicial Registrar Johnston on 24 August 2007.  The Wife also sought urgent injunctions in relation to shares held in the name of the Husband with H Bank pending the hearing of the application for review.

12. On 31 August 2007, Steele J made the following orders

    1.I dismiss the wife’s application for interim injunctions.

    2.I give leave to the parties to obtain a date for a one day hearing of the Review Application filed 28 August 2007.

13. The Husband advised that by this date he had already sold most of the H Bank shares.  Steele J indicated he had insufficient time to deal with the review and refused to make interim injunctions.

14. On 12 September 2007 Judicial Registrar Loughnan made the following orders:

    UPON NOTING:

    2.That there have been multiple Interim Applications in these proceedings.

    3.That a Review is listed for a 1 day hearing in November 2007.

    4.I am advised that the current Interim Application, including reading time, will take more than the time permitted for the Duty List.

    IT IS ORDERED:

    5.That these proceedings be referred to the Case Management Judge for the purposes of assessment of the case for judicial management.

    6.I give leave to the parties to approach the Listing Manager to obtain a hearing date before a Judge for the competing interlocutory proceedings, estimated hearing time 1 day.

15. On 12 October 2007 Le Poer Trench J made the following orders:

    1.The wife’s application for urgent spouse maintenance be listed with the review of injunctive orders currently listed for hearing on 2 November 2007.

    2.The matter be listed at 2.15 pm on 12 February 2008.

    3.Each party file and serve their Financial Questionnaire by 31 January 2008.

    4.I mark as Exhibit “A” a document containing consent orders and I make orders pursuant to paragraphs 1 to 5 of that document.

    5.I grant leave to re-list the matter at any time prior to 12 February 2008 for the purposes of seeking any further procedural orders or directions to ensure that the matter is ready for the event on 12 February 2008.

    6.I note that the parties today have provided a balance sheet which is attached to the court file.

    7.The applicant wife on or before 21 December 2007 prepare a chronology of relevant events which contains a provision for the respondent to either agree with or deny each of those events.  Such chronology be served on the respondent by 21 December 2007.

    8.On or before 31 January 2008 the respondent husband serve on the applicant his response to the chronology duly noting whether each event is agreed or denied;  providing any additional events which he asserts are relevant;  and serving that on the wife by 31 January 2008.

    9.The wife thereafter note on that document whether or not the additional part of the chronology is admitted or denied and ensure that the document is provided to the Associate for Cohen J by the close of business on Friday, 9 February 2008.

16. On 2 November 2007 the applications were listed for hearing however nothing happened as no time was available and a further listing date was given.

17. In the property settlement proceedings there are a number of issues in relation to the extent and value of the assets of the parties and amounts to be notionally included in the balance sheet.  There was included in the case outline document of the Wife a schedule (see Attachment “A” to this judgment) in which the various assets and liabilities are identified and a number of the issues.

18. There is a significant issue about the value of the shares in C Pty Ltd.  The Wife contends that several times during 2006 the Husband told her that if an exclusive buyer was located for the patent of the intellectual property of C Pty Ltd he would then implement it globally and “the product would be worth $40-50 million”.  The Wife also contends that the Husband said that if the product was only licensed on a non-exclusive basis to one or two of the major banks in Australia that it would generate an income stream of many millions of dollars.

19. In an affidavit sworn on 31 August 2008 the Husband gave evidence as to the “present position” of C Pty Ltd and if his evidence is accepted then the Company is not operating.  He said that he is seeking employment.  The Husband described the business of the Company as no more than a good idea which no one is prepared to pay for.

20. There are also issues as to contributions.  The Wife contends that she actively encouraged and assisted the Husband in the development of the banking product and she gave evidence of what she did.  The Wife also contends that she made significant intellectual contributions with respect to the conduct of the business owned and operated by T Pty Ltd and again she gave evidence of what she did.  The Wife contends that she made significant intellectual contributions with respect to W Facility and again she gave evidence of what she did.  The Wife described the W Facility as a large and prestigious development.  The Wife also gave evidence about her contributions with respect to the conduct of the Crosby Family Trust and J Pty Ltd as trustee.

RELEVANT PRINCIPLES-MAINTENANCE

1. Relevant provisions of the Family Law Act 1975 (Cth) in relation to spouse maintenance are ss 72, 74, 75(2), 80 and 83. In Mitchell and Mitchell (1995) FLC 92-601 at 81,994 the Full Court described s 74 as the basal provision in the Act in relation to spousal maintenance. Section 74 provides that in proceedings with respect of the maintenance of the party the Court may make such order as it considers proper for the provision of maintenance in accordance with Part VIII. Section 72 provides that a party to the marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so if, and only if, that other party is unable to support her or himself adequately whether by reason of having the care and control of the child of the marriage who has not attained the age of 18 years, by reason of age or physical or mental incapacity for appropriate gainful employment, or for any other adequate reason having regard to any relevant matter referred to in s 75(2).

2. Section 75(2) sets out a number of matters which the Court should take into account in exercising the jurisdiction given by s 74.  Section 72 establishes a threshold question before the power in s 74 may be exercised, and that threshold question is whether the applicant for spousal maintenance is unable to support himself or herself adequately by reason of the matters set out in (a), (b), or (c), of s 74, but having regard to any relevant matter referred to in s 75(2).  In Mitchell and Mitchell (supra) the Full Court said at 81,995 that the question whether the applicant can support herself or himself adequately is not to be determined by reference to any fixed or absolute standard but having regard to the matters referred to in s 75(2) and more specifically the paragraphs of that sub-section.

3. Section 80 sets out a range of powers that may be exercised in proceedings for spouse maintenance.  The powers include in s 80(1)(b) making an order for the payment of a weekly, monthly, yearly or other periodic sum and in s 80(1)(h) making a permanent order or an order pending the disposal of proceedings or until further order.

4. There is no express reference in the Family Law Act to what is called interim maintenance although this term is often used to describe applications for maintenance where the Court is asked to exercise the power conferred by s 80(1)(h) and make an order pending the disposal of proceedings or until further order. Such orders are made under s 74 and are distinguished from urgent orders made under s 77: Chapman and Chapman (1979) FLC 90-671 per Fogarty J and Ashton and Ashton (1982) FLC 91-285 per Nygh J.

5. There are then proceedings where a permanent order for maintenance is sought.  In Ashton and Ashton (supra) Nygh J said that an application for interim maintenance differs only from an application for permanent maintenance in that the order which is sought is until further order.  His Honour drew a distinction between what he called interim maintenance under s 74 and ordinary maintenance under s 74.  In summary there are three types of maintenance orders that may be made namely urgent maintenance, interim maintenance and ordinary maintenance. 

6. The next matter to consider is the procedure to be adopted in relation to the hearing of maintenance proceedings.  If the application is for urgent maintenance then the hearing may be conducted in a very summary way, without examination of the parties and on such evidence as is to hand.  In Williamson and Williamson (1978) FLC 90-505 (Full Court) Fogarty J said at 77,650 that the application is determined “…on a rather pragmatic basis without any real hearing upon the merits” and in Chapman and Chapman (supra) his Honour at 78,570 said that there are somewhat “ad hoc procedures” necessarily involved.  Section 77 serves the purpose of an order being made where the Court is unable to determine immediately what order should be made.  The Act therefore contemplates that such proceedings are dealt with in a more summary way.

7. As to the hearing of an application for interim maintenance there was at one time a difference of opinion as to the nature of such a hearing.  In Williamson and Williamson (supra) Fogarty J at 77,650 referred to the distinction between a s 77 urgent order and a s 80(h) interim order and said that an application for an interim order “…would normally involve some hearing on the merits, although not perhaps as final or exhaustive a hearing as would be the case if one were hearing the matter finally”.  However in Ashton and Ashton (supra) and Pritchard and Pritchard (1982) FLC 91-286 Nygh J may have taken a different view. In Pritchard Nygh J said the Court must conduct the proceedings “…in the ordinary form, after giving the usual directions for the filing of pleadings, and after hearing all relevant evidence having regard to the matters set out in sec.75(2)”.  Then in Redman and Redman (1987) FLC 91-805 at 76,081 the Full Court (Evatt C.J, Lindenmayer and Nygh JJ.) said:

   In the second place, this was an interim order.  Whilst we agree with the view expressed in Ashton that in principle such an order is one under sec. 74, to which the principles of sec. 72 or sec. 73 may be applicable, as the case may be, the very fact that the order is limited in time imports certain different considerations.  One of these is that such an order is intended to be reconsidered, quite apart from a variation under sec. 83.  As Nygh J. said in Ashton, the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement.  If a so-called permanent order is made on that occasion, that is not a variation under sec. 83 and does not have to be justified as such, but it is a fresh order made upon the termination of the interim order.  Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally'': Williamson and Williamson (1978) FLC 90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J.  The evidence need not be so extensive and the findings not so precise.  Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.

1. If an application is made for interim maintenance then in my opinion Part 5.2 of the Family Law Rules applies and there is a restriction on the hearing time (r 5.10(1)) and cross-examination will only be allowed in exceptional circumstances (r 5.10(2)).  In other words the rules of court recognise what the Full Court said in Redman and Redman (supra) and that the hearing may be conducted in a summary way.

CONCLUSION

Spouse Maintenance

1. I will first deal with the application for interim spouse maintenance.  There is an issue as to whether the Wife can support herself adequately.  The Wife contends that she is presently unable to support herself adequately by reason of her state of health and other reasons.  The Husband contends that the Wife is able to support herself adequately because she could obtain paid employment or sell one of more of her assets.

2. At the outset I record that there are a number of issues that at present I am unable to resolve given, among other things, the nature of the hearing before me.   

3. There is a significant issue in relation to the state of health of the Wife and I was referred to 20 medical reports on behalf of the Wife.  There are reports from Dr DR of 10 July 2006; Dr DK of 3 February 2004 and 14 June 2006; Dr DM of 5 August 2004; Dr DL of 1 March 2002, 16 July 2002 and 10 October 2002; Dr DM of 17 May 2002 and 30 August 2002; Dr DW of 22 November 2001 and Dr DP of 14 November 2001. 

4. The Husband relied upon reports which were obtained by the insurance company from Dr R and Dr S of 18 February 2002 and 10 April 2003.  He also relied upon a report obtained by H Bank from Dr DR.  The Husband also put in evidence a medico legal report from Dr DR dated 5 April 2002 who said that he did not consider there was evidence of a genuine psychiatric illness.

5. The Wife put in evidence a report dated 20 December 2007 from Dr DK who is a consultant psychiatrist and psychotherapist.  In his report Dr DK said that the Wife is currently attending his rooms for weekly psychotherapy as part of her effort to recover from and deal with the consequences of a psychiatric illness that occurred when she was a senior executive of H Bank.  He said the Wife was significantly traumatised in her professional relationship with management and developed a post traumatic anxiety disorder followed by major depression.  He said that the depression is treated with antidepressants and psychotherapy and “…she has recovered from this”.  However he said that the Wife has significant ongoing difficulties “with anxiety, is lacking in confidence, and remains phobic about the professional workplace”.  Dr DK said the Wife was currently working on her ability “to trust, to feel secure, to think clearly and have confidence in herself”.

1. I do not propose in this judgment to deal with all of the medical evidence which I have identified above.  As I have said there was no cross-examination of any witness and the hearing proceeded in a truncated way.

2. The Wife has not been in paid employment since August 2001, being prior to the commencement of the relationship.  Thus the Wife has not worked in paid employment for about six years.

3. During the relationship the Husband accepted that the Wife was in ill health and unable to engage in paid employment.  He said that he “believed and supported” the Wife.  However since separation the Husband has changed his mind and he contends that the Wife was “manufacturing” her symptoms and this change of mind is presumably because of the untested evidence of the insurance company.

4. I have come to the conclusion that at the present time the evidence prima facie establishes that the Wife is unable to engage in paid employment because of her state of health.  As I have said this issue will have to be more fully investigated and dealt with at the hearing of the applications for final orders.

5. The Wife swore a Financial Statement on 5 September 2007 and she contends that she has a total average weekly income of $750.  This income comprises rent from the MS property.  The Wife contends that she has total weekly personal expenditure of $5,135.  This expenditure includes:

   $

   ·Mortgage payments to the National Australia Bank for M Property         1,365

   ·Rates   60

   ·Mortgage payments with respect to MS Property   885

   ·Other rates   150

   ·Insurance premiums   87

   ·Motor vehicle registration   5

   ·Credit card payments   41

   ·Other expenditure   2,542

   The Wife provided evidence as to the “Other expenditure” which includes:

   $

   ·Food   249

   ·Household supplies   107

   ·House repairs   52

   ·Clothing and shoes   129

   ·Net medical expenses   207

   ·Entertainment/hobbies  97

   ·Holidays   135

   ·Gifts   179

   ·Legal Fees   692

   ·Equipment replacement   67

   ·Cat care   20

   ·Postage and faxes   13

   ·Other rehabilitation costs   75

   The solicitor for the Wife accepted that it was appropriate to exclude the amount paid for legal costs of $692 and thus the Wife has an income of $750 per week and claimed expenses of $4,443 per week being a deficiency of $3,693 per week.

6. The Wife contends that her property interests are:

   $

   ·Half share of M Property   650,000

   ·MS Property   1,115,000

   ·Funds in bank accounts   505

   ·Motor vehicle   25,000

   ·Household contents   10,000

   ·Jewellery   2,000

   Total   1,802,505.

7. The Wife also has superannuation interests which she contends have a total gross value of $96,168.

8. The Wife contends that she has total liabilities of $1,308,669 which include mortgage debts through the National Australia Bank of $706,068 and $574,494.

9. The Wife resides in the home at M and has done so since 2001.  The Wife receives income from her property at MS.  In my view the Wife has no other available resources.  In conclusion, I am of the opinion that at the present time the Wife is unable to support herself adequately and has a need for maintenance. 

10. At the final hearing the situation and circumstances of the Wife will have to be more fully investigated.  There will be the issue about her capacity for paid employment.  However there may be other issues; for example it may be that the Wife will have to sell the property at MS because as I understand by her evidence she receives an income of $750 per week but has an obligation of $885 per week in relation to the mortgage secured on this property.

11. So far as the Husband is concerned since the proceedings commenced he has sworn a Financial Statement on 7 June 2007, 21 August 2007, 23 August 2007, and 1 November 2007.  As well, he gave further evidence about his financial circumstances in an affidavit that he swore on 17 January 2008.  I am not going to go through each of these financial statements.

12. In the Financial Statement sworn on 1 November 2007 the Husband contends that he has a total average weekly income of $817 which comprises:

    $

    ·Interest   700

    ·Dividends   117

13. In relation to his expenditure the Husband contends that he has the following:

    $

    ·Rates   110

    ·Insurance premiums   162

    ·Motor vehicle registration  20

    ·National Australia Bank investment loan re: W Facility   660

    ·Other expenditure   2,164

    Total   3,116

14. As to the other expenditure it includes:

    $

    ·Food   250

    ·House repairs   200

    ·Telephone   53

    ·Mobile telephone   50

    ·Petrol   70

    ·Fares/care parking   50

    ·Clothing and shoes   90

    ·Net medical expenses   80

    ·Entertainment   200

    ·Gifts   100

    ·House cleaning   75

    ·Hairdressing and toiletries   40

    ·Gym membership   50

    In relation to his expenditure the Husband contends that his average weekly credit card repayment to American Express and Visa is $2,617 per week.

15. In summary the Husband contends that he has a weekly income of $817 and weekly expenditure of $3,116 being a deficit of $2,299 per week.

16. As to his assets the Husband contends that he has the following:

    $

    ·B Property   1,350,000

    ·Funds in banks   706,671

    ·Public listed shares   136,272

    ·Motor vehicle   14,300

    ·W Facility partnership   94,000

    ·Household contents   25,000

    ·Jewellery   5,000

    ·Loan to the wife, not included accrued interest   12,900

    ·Golf Club share   22,500

17. The Husband also contends that he has superannuation interests of a gross value of $164,575.

18. In respect to his liabilities the Husband contends that he has the following:

    $

    ·Loan, National Australia Bank   484,000

    ·Loan, T Pty Ltd   48,815

    ·American Express   452

    ·Myer card   1,527

    ·Optus   385

    ·W Facility   45,000

    ·Capital gains tax on sale of H Bank shares   379,480

    ·Furniture   6,744

    ·Blinds   4,755

    ·JC Pty Ltd   2,640

19. I have not included in the assets the Husband’s claimed equitable interest in the M home.  I have also not included the alleged deficiency with respect to the value of the shares in C Pty Ltd.  I have not included in the liabilities the Husband’s contended share of the mortgage debt secured on the M Property nor his assessed income tax which he contends is subject to appeal, nor income tax assessed and unpaid in previous financial years of T Pty Ltd.  I have also not included outstanding legal costs. According to the Husband’s costs memorandum he has incurred legal costs of $79,977.41 of which he has paid $45,474.21 from the proceeds of sale of shares.

20. I note that the Wife has paid costs of $7,000 and has unpaid costs of $52,660.79.

21. With respect to the shares in C Pty Ltd the Husband contends that they have no value.  He contends that he has a loan to the Company of $50,671 but it is irrecoverable as the Company has insufficient funds to repay the loan.  He described the business of C Pty Ltd as financial software.  He said the trademark “[C]” has been registered.  He said that C Pty Ltd has not had any income or profit and cannot provide remuneration and as a consequence the Husband is applying for paid employment in banking and other sectors and as yet has not been successful.

22. In his affidavit of 17 January 2008 the Husband gave evidence of the expenditure of money from bank accounts between 1 November 2007 and 16 January 2008 of a total of $52,640.  The Husband contends that at the present time he has seven bank accounts with a total credit balance of $654,031.  However this includes two amounts of $102,198 and $494,499 in accounts with the National Australia Bank which he is unable to access. 

23. I do have some concerns about the expenditure of money by the Husband and this will also have to be dealt with.  In respect to his expenditure between 1 November 2007 and 16 January 2008, being a period of 11 weeks, the Husband said it was a total of $61,509.  It included business expenses of $11,991 being airfares, accommodation, meals, office supplies, technology supplies, telecommunications, parking and taxis.  Given the Husband’s evidence prior to 1 November 2007 it is difficult to understand what business expenditure the Husband could have incurred.  The Husband’s other expenditure included what he described as “home set up” of $3,328.  It included $2,400 paid on a Myer card, being interest for repayments for mattresses and household purposes.  It included $2,229 for property maintenance.  In early 2007 the Husband spent $100,000 on home furniture and furnishings and thus I have difficulty understanding why he had a need to spend $3,328 on “home set up”.  It included medical and health expenses of $3,299.  It included Christmas and birthday presents of $3,083.  It included a further $2,631 for gifts which may mean a total of $5,714 for gifts and presents.

24. The Husband does have the capacity for paid employment.  In his affidavit of 7 June 2007 he said that he was seeking employment and in fact he may have had interviews in early 2007.  He may be seeking a position in “high level management”.

25. I am of the opinion that the Husband does have the capacity to provide some interim support to the Wife.  The Husband has a proven capacity for paid employment.  As well, the Husband has greater available resources than the Wife such as shares and money in bank accounts.

26. I have come to the conclusion that on an interim basis a proper amount that the Husband should pay to the Wife is $750 per week.  This will continue until the hearing of the applications for property settlement.  This amount will not meet all of the obligations of the Wife but should assist her in meeting necessities such as food, clothing, petrol, medical expenses and so on.  In my opinion, the Husband clearly has the capacity to pay this amount which on an annual basis is only $39,000.

27. It is in the interests of both parties to resolve the property proceedings as soon as practicable.  As I have said, at the hearing of such proceedings all of the relevant issues will be more fully inquired into and determined.   It may be that the Court ultimately determines that the Wife has a capacity for paid employment and or that the MS property be realised.  The Husband will also presumably have to rationalise his circumstances by obtaining paid employment or pursuing the success of C Pty Ltd or the realisation of assets.  The payments made by the Husband to the Wife may be taken into account in the property settlement proceedings and assuming such proceedings are concluded within 12 months the Husband’s position is protected in that the Wife has assets of a net value of approximately $400,000.

Other orders

1. The remainder of the Wife’s application can be shortly disposed of.

2. Orders 2(a) and 2(b) are in the same terms as orders 2(a) and 2(b) of 9 May 2007 and need not be repeated.

3. I am prepared to make an order in the terms of order 2(c) given the Husband’s failure to give notice to the Wife of the transfer of the shares in C Pty Ltd from the Crosby Family Trust and the purchase of the B property.

4. I am also prepared to make an order that the Husband be restrained from reducing below $484,000 his account conducted with the National Australia Bank, without giving the Wife 21 days written notice of his intention so to do, such written notice to include full details of any proposed transaction including the purpose of such withdrawal.  In addition to the reasons already given, there has been a significant movement of funds without notice and I am of the view that it is reasonable and proper that the Wife be given notice of any intention to make further changes.

5. I am prepared to make an order that the Husband be restrained from selling, encumbering, disposing of or otherwise dealing with shares or assets held by him without giving the Wife 21 days written notice of his intention so do including the provision of all relevant details including the proposed transaction, the proposed sale price and the proposed disposition of such funds.  However, I accept that the Husband may have to realise some of his assets to meet his obligations to the Wife and for a period of time pay his necessary living expenses.

6. I am prepared to make an order that the Husband be restrained from selling, disposing of or encumbering by mortgage or charge or otherwise, or in any way dealing with shares or assets held by the Crosby Family Trust or by the N Trust, without giving the Wife 21 days written notice of his or its intention so do including the provision of all relevant details including the proposed transaction, the proposed sale price and the proposed disposition of such funds.

7. I am also prepared to make an order that the Husband provide to the Wife any and all contracts, memorandums of understanding, memorandums of agreement, any correspondence and any other documents evidencing any discussions and or agreements conducted between C Pty Ltd and/or anyone on behalf of C Pty Ltd in relation to any intellectual property owned by C Pty Ltd, in the period 1 January 2006 to date.

8. In the absence of agreement I was not prepared to make any order about the delivery or return of items of personalty.  Such issues can be dealt with at the hearing of the property settlement applications.

ORDERS

1. Pending further order by way of spouse maintenance the Husband pay direct to the Wife the sum of $750 per week the first payment to be made within 7 days of the date of this order and thereafter weekly in advance.

2. The Husband in his capacity as director and company officer of C Pty Ltd be restrained from doing or committing:

   2.5any act or thing which has the effect of diminishing the equity held by either the Husband or the Crosby Family Trust in C Pty Ltd;

2.6causing or committing C Pty Ltd to sell, transfer, dispose of or otherwise deal with the assets of the Company which has the effect of reducing the equity in the Company;

2.7doing any act or thing which has the effect of C Pty Ltd acquiring or disposing of any asset at a price in excess of $5,000, without first informing the Wife and giving the Wife 21 days written notice of his or the Company’s intention so to do, including the provision of full details of the proposed dealing;

2.8doing any act or thing, or permitting C Pty Ltd to do any act or thing, other than in the ordinary course of business, without giving the Wife 21 days written notice of his or its intention so to do, including the provision of all relevant details in relation to the proposed transaction.

1. The Husband be restrained from reducing below $484,000 his account conducted with the National Australia Bank, without giving the Wife 21 days written notice of his intention so to do, such written notice to include full details of any proposed transaction including the purpose of such withdrawal.

1. The Husband be restrained from selling, disposing of, encumbering by mortgage or charge or, or otherwise or in any way dealing with shares or assets held by the Crosby Family Trust or by the N Trust without giving the Wife 21 days written notice of his or its intention so to do including the provision of all relevant details of the proposed transaction, the proposed sale price or borrowing and the proposed disposition of such funds.

1. The Husband be restrained from selling, disposing of, encumbering by mortgage or charge or, or otherwise or in any way dealing with shares or assets held by him except for the purpose of complying with order 1 hereof and paying the Husband’s living expenses without giving the Wife 21 days written notice of his intention so to do including the provision of all relevant details of the proposed transaction, the proposed sale price or borrowing and the proposed disposition of such funds.

1. The Husband provide to the Wife within 28 days of this order any and all contracts, memorandums of understanding, memorandums of agreement, any correspondence and any other documents evidencing any discussions and or agreements conducted between C Pty Ltd and/or anyone on behalf of C Pty Ltd in relation to any intellectual property owned by C Pty Ltd, in the period 1 January 2006 to date.

1. The costs of both parties be reserved.

Annexure A

ITEM	PROPERTY	OWNER	HUSBAND'S VALUE	WIFE'S VALUE	TOTAL	Agreed?	Notes
1	M Property	Wife - 50%	1,900,000	650,000	No	Wife's value of whole property is $1,300,000; Husband's is $1,900,000.  Husband also asserts Wife owns interest of the other registered proprietor, her daughter.
2	MS Property	Wife	1,425,000	1,015,000	No
3	MR Property	Wife’s daughter	350,000	0	No	Husband asserts that Wife has 50% Equitable Interest because she provided $250,000 secured by mortgage on MS Property, at time of purchase.  Wife asserts she has no equitable interest
4	B Property	Husband	1,350,000	NK	1,350,000	No	Subject to valuation
5	Husband's NAB Cash Management Account (security for loans)	484,084	484,084	484,084	Yes, subject to verification
6	Husband's NAB Account	25	25	25	Yes, subject to verification
7	Husband's NAB Account	3,736	3,736	3,736	Yes, subject to verification
8	Husband's NAB Account	204,272	204,272	204,272	Yes, subject to verification
9	Husband's BankWest	615	615	615	Yes, subject to verification
10	Husband's CBA Streamline	2,030	2,030	2,030	Yes, subject to verification
11	Joint NAB Account	0	0	0	Yes
12	Wife's NAB Account (joint with wife’s daughter)	0	0	0	Yes
13	Wife's NAB Account	7	7	7	Yes
14	Wife's Westpac Account	6	6	6	Yes
15	Wife's ING Direct Account	13	13	13	Yes
16	Cash or other bank accounts	NK	NK	No
17	Husband's H Bank Shares 2,000 @ $56.82 at 27.09.07	113,640	113,640	113,640	Yes subject to updating
18	Husband's Singapore Telecommunications Limited Shares 3,540	9,770	9,770	9,770	Yes subject to updating
19	Husband's Telstra Corporation Limited Shares 400	1,720	1,720	1,720	Yes subject to updating
20	Husband's AFT Corporation Limited Shares 40,000	120	120	120	Yes subject to updating
21	Golf Club "A" Share	22,500	NK	No
22	W Facility Pty Ltd	200,000	400,000	Subject to valuation
23	C Pty Limited (Husband includes below as asset of N Trust)	0	NK	Subject to valuation
24	J Pty Limited	0	NK	Subject to valuation
25	T Pty Limited	0	NK	Subject to valuation
26	Husband's loan to C Pty Limited	0	50,671	Subject to valuation	$50,671 but Husband asserts is irrecoverable
27	Husband's loan to N Trust	NK	NK	NK	Subject to valuation
28	Husband's loan to Crosby Family Trust	NK	NK	NK	Subject to valuation
29	Husband's Honda (per agreed Glass's Guide valuation)	14,300	14,300	14,300	Yes
30	Wife's Holden (per agreed Glass's Guide valuation)	30,000	25,000	No
31	Furniture, furnishings and household effects	Husband	25,000	50,000	25,000	No
32	Wife's (some items to be returned to husband)	Wife	15,000	10,000	No; subject to valuation
33	Husband's Jewellery	Husband	5,000	5,000	5,000	Yes
34	Wife's jewellery	Wife	35,000	2,000	No; subject to valuation
35	Pearson Family Lawyer's Trust Account	Husband	5,048	5,048	5,048	Yes
36	Pearson Family Lawyer's Controlled Moneys Account	Husband	100,000	100,000	100,000	Yes
37	Loan to wife (not including accrued interest)	Husband	12,900	0	No
38	Loan to wife’s daughter (husband includes re real estate above)	Wife	0	0	0
39	H Bank Dividend due October 2007 $93,125	Husband	93,125	93,125	93,125	Yes
Total	6,402,911	3,240,182	6,402,911
SUPERANNUATION
40	Husband's H Bank Superannuation	Husband	107,000	107,000	107,000	Yes, subject to verification
41	Husband's B Super	Husband	40,000	40,000	40,000	Yes, subject to verification
42	Husband's G Bank Super	Husband	23,000	23,000	23,000	Yes, subject to verification
43	Wife's Australian Eligible Rollover Fund @ 30.06.06	Wife	37,683	37,683	37,683	Yes
44	Wife's Spectrum Super	Wife	18,721	18,721	18,721	Yes
45	Wife's H Bank Superannuation @ 20.09.07	Wife	43,286	43,286	43,286	Yes
Total:	269,690	269,690	269,690
LIABILITIES
47	Income tax presently assessed and unpaid - subject to appeal	Husband	183,999	NK	183,999	No	Relates to W Facility.  Wife says Husband likely to win appeal because Facility was actually built and is fully operational.
48	Income tax re previous years	Husband	0	0	0
49	Income tax presently assessed and unpaid, T Pty Ltd	Husband	1,000	0	Subject to valuation; and wife says will be included in value of company
50	Other tax assessed but unpaid – H Bank Dividend due October 2007	Husband	16,000	0	No	Fully franked dividends so no tax payable by Husband.
51	CGT on sale H Bank shares	Husband	379,480	NK	No	Wife says it will depend on Husband's taxable income this year
52	Mortgages secured on M Property ($683,844 per wife)	Wife	706,068	706,068	706,068	Yes
53	Mortgage secured on MS Property ($577,003 per wife)	Wife	574,494	574,494	574,494	Yes
54	Mortgage secured on B Property	Husband	0	0	0	Yes
55	Loan account T Pty Limited	Husband	48,815	NK	Subject to valuation	Wife says this is in fact a credit loan account following husband's payment of T Pty Ltd’s tax
56	W Facility (Husband's Affidavit 21.08.07)	Husband	45,000	NK	Subject to valuation
57	Fraser Clancy Legal Fees	Wife	0	9,400	0
58	NAB Loan	Husband	484,000	484,000	484,000	Yes, subject to verification
59	Husband's American Express credit card	1,633	0	No
60	Husband's American Express charge card	2,389	0	No
61	Husband's NAB Visa	107	0	No
62	Wife's NAB Visa	5,477	5,477	No
63	Husband's CBA Visa	537	0	No
64	Husband's Virgin Visa	1,317	0	No
65	Wife's Virgin Mastercard	0	8,385	No
66	Wife's Westpac Mastercard	1,500	1,500	No
67	Husband's Myer Card	2,905	0	No
68	Husband's debt to Optus	385	0	No
69	Husband's legal fees owed to Pearson Family Lawyers @ 27.09.07	34,685	0	34,685	Not appropriate to be included in pool
70	Wife's legal fees owed to Adrian Twigg & Co @ 18.09.07	40,829	Not appropriate to be included in pool
71	Wife's accountant and other bills	0	3,346	0	No
Total:	2,489,791	1,833,499	1,983,246
RESOURCES
Crosby Family Trust
N Trust	-52,150	10,000,000	-52,150	Husband says this entity now owns 50% share in C.  Was Crosby Family Trust previously
Total:	-52,150	10,000,000	-52,150
Husband's asserted pool	Wife's asserted pool
NETT ASSETS EXCLUDING SUPER	$3,913,120	$1,406,683
NETT ASSETS INCLUDING SUPER	$4,182,810	$1,676,373
NETT ASSETS INCLUDING SUPER AND TRUSTS	$4,130,660	$11,676,373

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate:

Date:  31 January 2008