GILLIAM & MORRIS

[2016] FamCA 612

FAMILY COURT OF AUSTRALIA

GILLIAM & MORRIS [2016] FamCA 612

FAMILY LAW – PROPERTY – Interim spouse maintenance – Whether an Order for maintenance “is reasonable in the circumstances” - Where the wife is currently unable to support herself – Where the wife has full-time care of the three children – Where the amount of funds claimed by the wife reduced where unreasonable – Application granted.

FAMILY LAW – PROPERTY – Interim injunction - Where the husband has spent a substantial sum of money on “adult entertainment” – Where an interim injunction sought to prevent further spending by the husband - Where there is an intention for review of interim hearing in a matter of months – Where there is a risk the husband may dispose of further assets without the issue of an injunction - Application granted.

Family Law Act 1975 (Cth) ss 34, 72, 74, 75(2), 114

Bevan and Bevan (1995) FLC 92-600
Mitchell and Mitchell (1995) FLC 92-601
Mullen & De Bry (2006) FLC 93-293
Redman and Redman (1987) FLC 91-805
Waugh & Waugh (2000) FLC 93-052

APPLICANT: Ms Gilliam

RESPONDENT: Mr Morris

FILE NUMBER: BRC 3324 of 2016

DATE DELIVERED: 29 July 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 25 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk QC

SOLICITOR FOR THE APPLICANT: Harrington Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Jones McCartney

Orders

Upon the undertaking of the wife to abide by any Order for damages which the Court may determine that the husband has directly suffered and is entitled to recover by reason of the interim Court Order.

IT IS ORDERED UNTIL FURTHER ORDER:

1. That, in this Order the phrase “the parties’ companies, trusts or superannuation funds” shall refer to the following:

   (a)       Morris Services Pty Ltd

   (b)       Morris Investments Pty Ltd

   (c)       B Pty Ltd

   (d)       Morris Practice Trust No. 2

   (e)       Morris Practice Trust

   (f)       Morris Property Trust

   (g)       Morris Family Trust

   (h)       Morris 1 Trust

   (i)        Morris 2 Trust

   (j)        Morris 3 Trust

   (k)       C Pty Ltd

   (l)        Morris Superannuation Fund

   (m)      Mrs Morris Superannuation Fund

2. That, save as provided in this Order, the husband be restrained and an injunction hereby issues restraining the husband from disposing of any assets (other than bank accounts) owned by him, or by any of the parties’ companies, trusts or superannuation funds or jointly with any other person or entity without the wife’s written consent, (such consent not to be unreasonably withheld), obtained after providing to her written notice including any reasons for the proposed disposal and all supporting or accompanying documents as may be required to properly inform the wife about the proposed disposal and to enable her to make an informed decision.

3. That unless otherwise agreed, the husband authorise and direct the husband’s income protection insurance providers to pay any income protection payments to the St George bank account BSB …, Account Number: ...

4. That, save as provided in this Order, the husband be restrained and an injunction hereby issues restraining the husband from making cash withdrawals and/or using any St George credit card in his or the parties’ names and from any St George bank account or credit card in the name of any of the parties’ companies or trusts or superannuation funds including but not limited to St George bank account BSB …, Account Number: … save with the written consent of the wife (such consent not to be unreasonably withheld).

5. That the husband and wife do all things and sign all documents necessary to enable the following payments to be made from the St George bank account BSB …, Account Number: … (and to set up automatic direct debits to facilitate payment if possible):

   (a)       By way of spouse maintenance:

   (i)To the wife the monthly sum of $2,028.00;

   (ii)To the wife for any shortfall after Medicare and/or private medical insurance rebates for any attendance by her upon her General Medical Practitioner, Psychiatrist, Psychologist, Dentist or Optometrist;

   (iii)To the local authority for rates for the property at L Street, Suburb M, as and when they fall due;

   (iv)To the electricity provider for any electricity bills issued for L Street, Suburb M, from time to time;

   (v)To the gas provider for any gas bills issued for L Street, Suburb M, from time to time;

   (vi)To the insurer/s for premiums for the wife’s life insurance, trauma insurance, health insurance, household insurance and contents insurance as and when they fall due;

   (vii)To the Queensland Transport Authority for registration on the wife’s motor vehicle; and

   (viii)To the insurer for premiums on the wife’s motor vehicle;

   (b)To the wife by way of child support such sum as may be due in accordance with any child support assessment issued from time to time;

   (c)To G School for school fees and expenses for the children as set out in invoices as and when they fall due;

   (d)To the Australian Taxation Office for any taxation liabilities for either party as may be assessed from time to time;

   (e)       For the interest payments on:

   (i)St George Portfolio Loan #...; and

   (ii)St George Portfolio Loan #... accounts;

   (f)To any tradesman for any invoice issued for repairs carried out by agreement between the parties on the property at L Street, Suburb M, as and when they fall due; and

   (g)       To the husband the sum of $4,628.00 per month.

6. That the husband and wife do all things and sign all documents necessary to transfer funds from a bank account (with a credit balance) in the joint names of the parties or in the name of an entity controlled by them in the event that there are insufficient funds in the St George bank account BSB …, Account Number: … to meet the sums payable pursuant this Order.

7. On the failure or refusal of the husband to do all acts and things and execute all such deeds, documents and instruments as required pursuant to this Order, and if such default continues for a period of seven days from the date of the written request to do all such acts or things and execute such deeds, documents or instruments, the Registrar of the Family Court of Australia at Brisbane or Deputy Registrar, or such other person nominated by the Registrar, is hereby appointed to execute all deeds, documents and instruments in the name of the husband, and to do all such acts and things as may be necessary to give validity and operation to this Order.

8. That the time allowed for compliance with paragraph 2 of the Order made 1 June 2016 by Registrar Coutts be enlarged until the close of business on 3 August 2016.

9. That compliance for the production of documents pursuant to subpoena issued to St George Bank, I Partners and Westpac Banking Corporation be extended for 21 days.  

10. That the wife’s application for costs of and incidental to the issuing of subpoena be reserved.

11. That the husband forthwith file any Response, Affidavit and Financial Statement intended to be relied upon.

12. That the matter be adjourned for further interim hearing before the Honourable Justice Carew at 10:00 am on 31 October 2016.

NOTATION:

It is noted that subparagraphs 5(a)(ii), 5(a)(vi), 5(b), (c), (d), (e) and (f) in this Order are made by consent.

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 Gilliam & Morris 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 3324 of 2016

Ms Gilliam

Applicant

And

Mr Morris

Respondent

REASONS FOR JUDGMENT

1. The parties to this dispute are Ms Gilliam (“the wife”) and Mr Morris (“the husband”).

2. This is an interim application brought by the wife for spouse maintenance and injunctions seeking the ongoing payment of certain debts and seeking to restrain the husband from disposing of assets without the wife’s consent.

The husband’s failure to file material  

1. An Order was made on 1 June 2016 requiring the husband to file a Response, Affidavit and Financial Statement within 14 days. The husband failed to do so and sought leave to read and file material after the luncheon adjournment when the matter was called on for hearing. The wife objected. The wife had, through her solicitors, sought that the husband file his material on no less than four occasions and received no response to those requests. It is clear that the husband was in contact with his lawyers as correspondence sought the wife’s co-operation in relation to a particular matter. The husband was put on notice that if he failed to file material the wife would seek to have the matter heard as an undefended matter. The husband’s material was only made available to the wife shortly before being called on for hearing. The husband’s counsel candidly conceded that his client had no excuse for failing to comply with the 1 June Order. The husband’s application for leave to read and file material was dismissed.

The adjournment application

1. The husband then sought an adjournment. The wife objected. The wife contends that the husband has been profligate in his spending and an injunction is required to restrain him from continuing to deplete the assets. Further, she submitted that as she has no source of income, her spouse maintenance application required a hearing. She owes money to the Australian Taxation Office and requires dental work and has an ongoing need to attend appointments with her treating psychiatrist. Accordingly, she submitted that the prejudice to her could not be met by a costs order. I accepted those submissions. The application for adjournment was dismissed, however, it was determined that any Order made would be only in place until 31 October 2016 and that the husband’s counsel would have the opportunity to make submissions in relation to the wife’s interim application. The matter proceeded on that basis.

Relevant background facts

1. The parties commenced cohabitation in June 1999, married in 2000 and separated on 2 November 2015.

2. There are three children, D aged 11 years and twins, E and F aged 8 years. The children live with the mother and have limited contact with the father. The children attend G School in Region H. Both parties intend for the children to remain at this school.

3. Until recently, the husband was a partner at I Partners. His employment ceased as a result of his ongoing alcohol abuse. His only source of income is from an income protection policy.

4. The net assets of the parties available for distribution are in the vicinity of $3,000,000.

5. The wife has been diagnosed with Post Traumatic Stress Disorder arising out of the alleged conduct of the husband during the marriage.

The wife’s case

1. The wife sought the following Order as set out in exhibit 1:

   1)That, in these orders the phrase “the parties’ companies, trusts or superannuation funds” shall refer to the following:

   a.[Morris] Services Pty Ltd

   b.[Morris] Investments Pty Ltd

   c.[B] Pty Ltd

   d.[Morris] Practice Trust No. 2

   e.[Morris] Practice Trust

   f.[Morris] Property Trust

   g.[Morris] Family Trust

   h.[Morris 1] Trust

   i.[Morris 2] Trust

   j.[Morris 3] Trust

   k.[C] Pty Ltd

   l.[Morris] Superannuation Fund

   m.[Mrs Morris] Superannuation Fund

   2)That other than is provided for in these orders, an injunction be granted restraining the husband from disposing of any assets (other than bank accounts) owned by him, or by any of the parties’ companies, trusts or superannuation funds or jointly with any other person or entity without the wife’s written consent, (such consent not to be unreasonably withheld) obtained after providing to her written notice including any reason for the proposed disposal and all supporting or accompanying documents as may be required to properly inform the wife about the proposed disposal and to enable her to make an informed decision.

   3)That unless otherwise agreed the husband authorise and direct his income protection insurance providers to pay any income protection payments to the St George bank account BSB … Account Number: ...

   4)That, other than as specifically provided for in these orders, an injunction be granted to restrain the husband from making cash withdrawals and/or using any St George credit card in his or the parties’ names and from any St George bank account or credit card in the name of any of the parties’ companies or trusts or superannuation funds including but not limited to St George bank account BSB … Account Number: ….

   5)That by way of spouse maintenance the wife be at liberty to withdraw the sum of $14,179 per month commencing on the date of filing of this Application and monthly thereafter from the St George bank account … Account Number: ...

   6)That the spouse maintenance specified in the preceding Order be adjusted each year in accordance with the CPI on the 1^st July each year and as form the 1^st July 2016.

   7)That in addition to the sums referred to in the preceding paragraphs, the wife be at liberty to withdraw from St George bank account BSB … Account Number: …, such sum as may be necessary to meet the following expenses of the parties:

   a.Child support payments;

   b.School fees and expenses for the children;

   c.Any taxation liabilities for either party as may be assessed from time to time;

   d.The interest payments on:

   i.St George Portfolio Loan #...;

   ii.St George Portfolio Loan #... account;

   e.To the husband such sum as may be agreed.

   8)On the failure or refusal of the husband to do all acts and things and execute all such deeds, documents and instruments as required pursuant to these orders, and such default continues for a period of 7 days from the date of the written request to do all such act or thing and execute such deed, document or instrument, the Registrar of the Family Court of Australia at Brisbane or Deputy Registrar, or such other person nominated by the Registrar, is hereby appointed to execute all deeds, documents and instruments in the name of the husband, and to do all such  acts and things as may be necessary to give validity and operation to this Order.

   9)That the time allowed for compliance with Order 2 of the Orders made 1 June 2016 by Registrar Coutts be enlarged until the close of business on 1 August 2016.

   10)That in the event that the husband does not comply with the preceding order the wife have liberty to file an affidavit setting to the noncompliance and the matter then be listed before a Judge for an undefended final hearing.

   11)That the husband pay the wife’s costs of and incidental to issuing and serving the subpoenae on:

   a.I Partners;

   b.[Company K];

   c.Westpac;

   d.St George Bank;

   e.Price Waterhouse Coopers.

1. One amendment sought relating to the wife becoming the sole signatory on a bank account was disallowed. Paragraph 11 was not pressed at this hearing.

2. The wife contends that in the four months since separation up to April 2016 the husband wasted funds of at least $177,000 on ‘adult entertainment’ at strip clubs and the like. She also contends that he has sold shares and withdrawn cash from their self-managed superannuation fund in the sum of $184,566 resulting in the fund now being non-complying.

3. School fees are overdue and her access to any funds requires the husband to co-sign cheques which has proved impractical.

4. The parties have an income protection insurance policy taken out via the Morris Family Trust. The benefits payable amount to $400,000 per annum which the wife anticipates will be taxable. The first payment was received into the bank account of the Family Trust namely St George bank account BSB … Account Number: … on 15 July 2016.

5. The wife has been out of the workforce since 2013. She has historically had employment in academia. She currently has the full-time care of the three children and has been assessed as unemployable for six to twelve months. She is under the care of a psychiatrist, Dr J.

6. Her reasonable monthly needs are contended to be $5,002 including the mortgage of $1,730 per week.    

7. The wife would be content for certain payments such as the mortgage and rates to be paid from the bank account as and when they fall due.

Husband’s submissions

1. In relation to the above proposed Order the husband:

   a)Did not contest paragraphs 3 and 7a. – d.;

   b)In relation to paragraph 2 there was only a token objection once the words “other than bank accounts” and “such consent not to be unreasonably withheld” were added;

   c)In relation to paragraph 4 it was submitted that it was unnecessary given the injunction consented to by the husband on 1 June 2016, but in my view the proposed Order goes further than the earlier injunction;

   d)In relation to paragraph 6 it was submitted that there was no need for such an order;

   e)In relation to paragraph 7 e. it was submitted that any excess from the income protection sum should be divided equally between the parties;

   f)No submissions were made in relation to paragraph 8;

   g)In relation to paragraph 9 the time for compliance was sought to be extended to 3 August 2016; and

   h)In relation to paragraph 10 it was submitted that it was no longer relevant. Paragraph 2 of the 1 June 2016 Order relates to disclosure. 

2. Submissions were made in relation to the claimed expenses of the wife which are dealt with in table A below.

Spouse maintenance

1. Section 72 of the Family Law Act1975 (Cth) (“the Act”) provides that a party to a 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 herself adequately, whether by reason of having the care and control of a child of the marriage who has not attained the age of 18 years or by reason of age or physical or mental incapacity for appropriate gainful employment or for any other an adequate reason, having regard to any relevant matter referred to in subsection 75(2).

2. Section 74 empowers the Court to make such order as it considers proper for the provision of maintenance.

3. Section 75(2) lists a number of matters which are required, where relevant, to be taken into account in determining what order to make. Matters of particular relevance in this case include:

   a)Age and state of health of the parties;

   b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

   c)Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

   d)Commitments of each of the parties that are necessary to enable the party to support himself or herself;

   e)…

   f)A standard of living that in all the circumstances is reasonable;

   g)The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

   h)The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

   i)The need to protect a party who wishes to continue that party’s role as a parent;

   j)Any child support under the Child Support (Assessment) Act 1989 (Cth) that a party has provided, is to provide or may be liable to provide in the future;

   k)Any fact or circumstance which the justice of the case requires to be taken into account.

1. Over the years there has been much consideration given to what is meant by the term ‘adequately’ where it appears in section 72 and what can be distilled from the various authorities is that adequate support is not limited to a subsistence level of bare necessities nor is it at the luxury end of the spectrum. That said, the standard of living enjoyed by the parties during the marriage is a relevant factor in determining the adequacy of the support. Ultimately, the assessment comes down to what is ‘reasonable in the circumstances’. (see Bevan and Bevan (1995) FLC 92-600)

2. As to the proper approach in considering an application for spouse maintenance, the Full Court in Bevan and Bevan (supra, commencing at 81,981) observed:

   Taken together, then, we would state the law as being that an award of spousal maintenance requires:

   1.a threshold finding under section 72;

   2.consideration of section 74 and section 75(2);

   3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and

   4.discretion exercised in accordance with the provisions of s 74, with ‘reasonableness in the circumstances’ as the guiding principle.

3. As this is an interim hearing with the intention of review within a few months, if required, it is worth noting the comments of the Full Court in Redman and Redman (1987) FLC 91-805 at 76,081:

   … 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… may be applicable, … 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. …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.

Discussion and findings – spouse maintenance

1. The wife has the full time care of the three children and has historically been their primary carer. Currently she is being treated for complex Post Traumatic Stress Disorder, in addition to an undifferentiated Dissociative Disorder. She is currently taking medications to treat her psychiatric conditions, namely, Seroquen XR 150mg at night, Seroquel 50mg at night, Temazepam 30mg at night, Prazosin 6mg at night and Diazepam 10mg as required. Her treating psychiatrist opines that with intensive counselling the wife will be able to make ‘enough of a recovery to resume employment hopefully in six to twelve months.’

2. The wife has no income. She recently received $200,000 from the sale of a property. Those funds are held by her solicitor to meet anticipated legal fees but in any event the wife is not required to use up all her capital before being able to establish that she is unable to support herself adequately. (Mitchell and Mitchell (1995) FLC 92-601)

3. In my view, the wife is currently unable to support herself adequately.

4. In Part N of her Financial Statement the wife sets out her weekly needs. Counsel for the husband made submissions in relation to the claimed needs and relevant comments are recorded in the table below.

Table A

Item	Sum	Comment
Mortgage	1,730.00	Husband agrees for the mortgage to be paid from bank account as and when due
Rates	150.00	Husband agrees for the rates to be paid from bank account as and when due
Life insurance	41.00	Husband agrees for insurance premiums to be paid as and when due
Trauma insurance	207.00	Husband agrees for insurance premiums to be paid as and when due
Food	175.00
Household supplies	9.00
House repairs	153.00	Husband agrees for house repairs (as agreed) to be paid. The home is currently on the market for sale.
House insurance	138.00	Husband agrees for insurance premiums to be paid as and when due
Electricity	288.00	Husband agrees for electricity to be paid as and when due
Gas	6.00
Telephone	36.00
Computer technician	21.00	Husband submits no evidence of ongoing need
Broadband	40.00
Cleaning – house	249.00	Husband submits no evidence that wife’s medical condition prevents physical exertion
Cleaning – pool	28.00
Repairs	5.00
Petrol	30.00
Car Maintenance	38.00
Car Registration	13.00
Car insurance	25.00
Fares/car parking	81.00
Clothing and shoes	73.00
General Practitioner	28.00
Psychologist	200.00	Husband agrees for any shortfall to be paid from bank account
Psychiatrist	95.00	Husband agrees for any shortfall to be paid from bank account
Dental	192.00	Husband agrees for any shortfall to be paid from bank account
Optical	38.00
Health insurance premiums	122.00
Chemist/pharmaceutical	36.00
Entertainment	20.00
Holidays	276.00	Husband submits unreasonable claim
Gym membership	36.00	Husband submits unreasonable claim
Physio	32.00
Personal training	118.00	Husband submits unreasonable claim when wife is a qualified personal trainer
Online pilates membership	5.00
Dry cleaning	6.00
Books and magazines	11.00
Gifts birthdays parties	29.00	Husband submits an unreasonable claim
Hairdressing, beauty treatments etc	147.00	Husband submits an unreasonable claim
Storage fees	75.00	Husband submits an unreasonable claim as not explained
Total	5,002.00

1. As there is no issue between the parties about the payment of the following sums as and when they fall due I will deduct them from the above total:

Table B

Item	Sum
Mortgage	1,730.00
Rates	150.00
Life insurance	41.00
Trauma insurance	207.00
House repairs	153.00
House insurance	138.00
General Practitioner	28.00
Psychologist	200.00
Psychiatrist	95.00
Dental	192.00
Total	2,934.00
Balance (after deducting total in Table B from total in Table A above)	2,068.00

1. Of the balance, I propose to reduce the items claimed either on the basis that the sums claimed appear to be unreasonable in the circumstances or I propose to order that the actual invoiced amount be paid directly from the bank account identified. The adjusted sum is set out in below:

   Table C

Item	Sum	Adjusted sum	Comment
Food	175.00	175.00
Household supplies	9.00	9.00
Electricity	288.00	0.00	(to be paid direct from account)
Gas	6.00	0.00	(to be paid direct from account)
Telephone	36.00	36.00
Computer technician	21.00	0.00	(no evidence that ongoing)
Broadband	40.00	40.00
Cleaning – house	249.00	0.00	(no evidence wife cannot undertake)
Cleaning – pool	28.00	0.00	(no evidence wife cannot undertake)
Repairs	5.00	5.00
Petrol	30.00	30.00
Car Maintenance	38.00	0.00	(to be paid direct from account)
Car registration	13.00	0.00	(to be paid direct from account)
Car insurance	25.00	0.00	(to be paid direct from account)
Fares/car parking	81.00	81.00
Clothing and shoes	73.00	00.00	(not reasonable in the short term)
Optical	38.00	0.00	(to be paid direct from account)
Health insurance premiums	122.00	0.00	(to be paid direct from account)
Chemist/pharmaceutical	36.00	36.00
Entertainment	20.00	20.00
Holidays	276.00	0.00	(not reasonable in the short term)
Gym membership	36.00	0.00	(not reasonable in the short term)
Physio	32.00	0.00	(no evidence to support ongoing need)
Personal training	118.00	0	(not reasonable as wife is qualified as a PT)
Online pilates membership	5.00	0.00	(not reasonable in the short term)
Dry cleaning	6.00	6.00
Books and magazines	11.00	0.00	(not reasonable in the short term)
Gifts birthdays parties	29.00	0.00	(not reasonable in the short term)
Hairdressing, beauty treatments etc	147.00	30.00	(reduced as sum claimed unreasonable when wife not working)
Storage fees	75.00	0.00	(no evidence to support)
Total	2068	468.00

1. Apart from the sums that are agreed to be paid as and when they fall due (estimated to be $2,934 weekly/$12,714 monthly) and the sums that I have determined should be paid from the bank account as and when they fall due (estimated to be $530 weekly/$2,297 monthly), I find the wife’s reasonable weekly needs to be $468 ($2,028 per month). In addition the parties have agreed that the assessed child support should be paid from the identified bank account in the sum of $2,413 per month. The total sum potentially payable (if the estimates in the wife’s Part N document are correct) is $19,452.

2. The only source of income is the husband’s income protection benefits. The sum payable is $34,000 per month but it is unclear whether tax will be payable. The wife anticipates that tax will be payable. Doing the best I can and having regard to the Australian Taxation Office taxation tables for 2016 it is likely that the net payment will be approximately $20,000.  

3. Obviously, the husband will require some income on which to meet his day to day living expenses. It is immediately apparent that not all of the expenses can be paid from the limited source of income.

4. I was informed from the bar table by the wife’s counsel that there is about $34,000 standing to the credit of the St George bank account BSB … Account Number: …. The husband’s counsel informed the Court from the bar table that the St George bank account (an offset account) ending in … has a credit balance of about $100,000. Whatever the situation, it is clear that the parties will need to draw on the credit balances to meet their ongoing commitments at least in the short term.

5. I propose to make an Order for the husband to receive a set sum from the St George nominated bank account that matches the sum I have assessed to be the wife’s reasonable weekly needs and in addition a further weekly sum of $600 for accommodation expenses as the wife is living in the former matrimonial home and will have her accommodation expenses met by the Order. I realise that the proposed accommodation allowance for the husband is an arbitrary amount but it is the best I am able to do in the circumstances.

6. I also propose to include in the Order a provision for the parties to make up any shortfall by transfer from a bank account in which they have a credit balance (as both parties indicate that there is such an account/s). In the short term it may be that many of the wife’s claimed expenses will not come to fruition e.g. she has estimated her weekly psychiatrist expense to be $95.00 however her psychiatrist estimates that the wife’s out of pocket expenses up to 25 October 2016 will be only $465.50.

Injunctions

1. The power to grant injunctions can be found in ss 114 and 34 of the Act.

2. Section 34(1) relevantly provides:

   The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds ... as the Court considers appropriate.

3. Section 114(3) relevant provides:

   A court ... may 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.

4. The following considerations prior to granting an injunction appear to be well settled by authority: (Waugh and Waugh (2000) FLC 93-052 and Mullen and  De Bry  (2006) FLC 93-293)

   a)Whether there is a serious issue to be tried;

   b)The balance of convenience;

   c)Whether there is any objective risk of disposal of assets if the injunction is not granted; and

   d)If it is considered appropriate to issue injunctions the Court should, to the minimum extent required.

5. The wife’s substantive claim includes property settlement and she estimates the property pool available for distribution to be in the vicinity of $3,000,000. On the material currently before the Court the wife has a significant claim.

6. She contends that the husband has engaged in a course of reckless conduct since spending in the order of $420,000, as particularised in her affidavit. As a consequence, their private superannuation fund is currently non-compliant.

7. While the husband agreed to certain injunctions on 1 June 2016, the injunctions sought by the wife in the current application go further. I am satisfied that there is a risk the husband may dispose of further assets absent these injunctions.

8. Any prejudice to the husband can be addressed by requiring the wife to agree to reasonable requests to deal with assets should the need arise. The matter will be listed for further interim hearing before me on 31 October 2016.

9. I am satisfied that the injunctions should be granted.

10. I do not propose to make an Order in the terms sought by the wife in paragraph 10 or her proposed Order as set out above.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 29 July 2016.

Associate: 

Date:  29 July 2016