GRESHAM & GRESHAM - [2019] FamCA 192

FAMILY COURT OF AUSTRALIA

GRESHAM & GRESHAM

[2019] FamCA 192

FAMILY LAW – PROPERTY – Application for enforcement of interim orders – Application of injunctions – Where the husband has withdrawn his appeal of the orders – Where the husband has not applied for a variation of the orders – Court finds that the orders should otherwise be complied with – Court finds that the proposed injunctions are unjustified.

Family Law Act 1975 (Cth) s 114

Acton & Burton [2015] FamCA 469
Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated (1981) 148 CLR 170
Bass v Permanent Trustee Group (999) 198 CLR 334
Cardile v LED Builders Pty Limited (1999) 198 CLR 380
Curtis v NID Pty Limited [2010] FCA 1072
Cutler v Wandsworth Stadium Limited (1945) 1 All ER 103
Glover v Walters (1950) 80 CLR 172
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Sieling and Sieling (1979) FLC 90-627

APPLICANT:

Ms Gresham

RESPONDENT:

Ms Gresham

FILE NUMBER:

SYC

7914

2016

DATE DELIVERED:

2 April 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

6 February 2019, 22 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Watson & Watson

Orders

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Pursuant to order 2 of the orders made on 19 October 2018, within 24 hours, the husband do all acts and things necessary to release to the wife the sum of $18,932.50 from the C Account (BSB …, account number …12), NOTING THAT the wife has given an undertaking to the Court that she will return any rebate received from her private health insurer and/or Medicare in respect of her dental and/or medical treatment to the C Account.
Pursuant to order 3 of the orders made on 19 October 2018, within 24 hours, the husband do all acts and things necessary to transfer the sum of $50,000 to the wife's solicitors’ trust account, the details of which are:
Barkus Doolan Trust Account
Bank: National Australia Bank
BSB: …
Account no: …63
Reference: …89:Gresham
Pursuant to order 3 made on 19 October 2018, within seven (7) days of the wife’s solicitors writing to the husband’s solicitors confirming the amount required to meet the wife’s legal costs and disbursements, the husband sign all documents necessary to facilitate the transfer of the amount specified, being up to $45,000, from the C Account to the wife’s solicitor’s trust account, identified in order 2.
In the event that the husband fails to comply with order 3 herein, pursuant to 106A of the Family Law Act 1975 (Cth), the Registrar of the Family Court of Australia be permitted to sign any documents required by ANZ on behalf of the husband.
Pursuant to order 1(a) made on 7 May 2018, to the extent that it has not already occurred, the husband shall forthwith pay to the wife the sum of $2,298.

Trial directions

By consent, on or before 1 June 2019, the parties obtain an updated valuation of the property located at D Street, Suburb E NSW by Mr HH, Registered Valuer.
By consent, the parties agree on the value of real estate in the United Kingdom, within 14 days, and if there is no agreement in relation to each parcel of real estate, then the parties shall obtain a report from a Single Expert valuer, to be agreed between the parties.
By consent, the parties, within seven (7) days, agree on a Single Expert in both the United Kingdom and Country Q and prepare a joint letter of instruction to the Single Expert which shall ask the Single Expert to address the following matters:
(a) The current value of each of the UK and Country Q pension entitlements;
(b)Whether or not the UK and Country Q pension entitlements can be assigned to either of the parties in shares other than currently held by them;
(c)If the UK and Country Q pension entitlements can be assigned, any tax consequences arising for either or both parties with respect to the same;
(d)If assigned, whether that amount can be transferred to Australia and whether there are tax consequences then arising; and
(e)Whether or not the UK and Country Q pension entitlements can be accessed by the husband, and if so, any tax consequences from this.
By consent, all lay Affidavits be filed and served, by 20 May 2019.
By consent, all Single Expert Reports be filed and served, by 20 May 2019
By consent, the parties file an agreed Balance Sheet, at least 14 days prior to commencement of the final hearing.
The husband pay the costs of the Single Experts in the first instance.
By consent, the parties file and serve case outline documents, including a list of authorities, at least seven (7) days prior to the commencement of the final hearing.
Pursuant to rule 19.04(2) of the Family Law Rules 2004 (Cth), within seven (7) days, the legal representatives for each of the parties provide to the other party a written notice of:
(a)Their client’s actual legal costs incurred up to and including the continuation of the interim hearing on 22 March 2019, both paid and owing;
(b)The estimated future costs of their client up to and including each future Court event, including the final hearing, which is listed for five (5) days in July 2019; and
(c)Any expenses paid or payable to an expert witness, or if those expenses are not known, an estimate of those expenses.
Pursuant to rule 10.06 of the Family Law Rules 2004 (Cth), within 14 days, each party must make a genuine offer to settle these proceedings.

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 Gresham & Gresham 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 SYDNEY

FILE NUMBER: SYC 7914 of 2016

Ms Gresham

Applicant

And

Mr Gresham

Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an application by Ms Gresham (“the wife”) for the enforcement of interim property orders made on 19 October 2018. My decision of that date sets out the background to the parties’ dispute. The wife also seeks that certain injunctions be made against Mr Gresham (“the husband”) with a view to restraining him from utilising matrimonial property in a manner that the wife believes would be adverse to her interests.
The relevant interim orders made on 19 October 2018 are the following:
(1) Within seven (7) days, the parties do all acts and things reasonably necessary to cause to be transferred from the [B Bank] Offshore Bond (portfolio number …84) to the [C] Account (BSB …; account number …12) the sum of $185,000.
(2) The parties do all acts and things reasonably necessary to cause monies to be paid from the [C] Account to the wife, up to the sum of $40,000, as are required to reimburse to the wife for her medical expenses, within seven (7) days of production of receipts or invoices, evidencing expenses that she has incurred or will incur in excess of the amount recoverable from Medicare and/or private health insurance.
(3) Within seven (7) days of compliance with order 1 herein, or such other time as the parties agree in writing, the parties do all acts and things reasonably necessary to cause the sum of $145,000 to be transferred from the [C] Account to the trust account of the wife’s solicitors, Barkus Doolan, with such sum to be applied toward the payment of the wife's legal costs, disbursements, expert and Counsel fees, as required. Any balance of those funds remaining in that trust account upon finalisation of these proceedings is to be released to the wife.
(4) Subject to order 5 herein, the husband pay to the wife, by way of periodic spousal maintenance, the sum of $931 per week, with the first payment to be made within seven (7) days and weekly thereafter.
(5) The husband’s obligation to pay spousal maintenance, pursuant to order 4 herein, is subject to the wife taking all steps as are necessary to facilitate such payments being made from the [B Bank] Offshore Bond until those funds have been exhausted and, thereafter, from such other account or source of funds as is nominated by the husband.
(6) The parties forthwith do all acts and things reasonably necessary to require Australia and New Zealand Banking Group Limited to reduce the current repayments due and owing in respect to the mortgage over the property at [D Street, Suburb E] NSW (“the [Suburb E] property”), in terms of the [C] Account, to interest only repayments.
…
(11) In the event that the husband does not comply with order 1(a) made on 7 May 2018 within 14 days, the wife be granted liberty to apply within a further 7 days.
In terms of order 11, order 1(a) made on 7 May 2018 was, as follows:
1. That the parties forthwith and within 7 days do all acts and things and sign all documents necessary to release from the Investment Account held with [B Bank] in the UK, being portfolio number …84 ("the [B Bank] account") the following:
a. The sum of $50,000 to the wife to be characterised by the trial judge; …
I further note that the following interim consent orders were made on 19 December 2018:
2. That within 24 hours of the date of the Orders the parties do all acts and things necessary to:
(a) Set up with respect to the ANZ offset account, so as to release to the Wife as and from the date of these Orders, the sum of $931 per week by way of spousal maintenance commencing 21 December 2018 pursuant to Order 4 made 19 October 2018 whilst ever there are sufficient funds in that account to meet the obligation.
(b) Pay to the Wife from the offset account the sum of $3,591 pursuant to the Husband’s obligation to pay spousal maintenance between 17 October 2018 and 14 November 2018.
3. That the Husband’s application for a stay of the Orders made 19 October 2017 and the balance of the Wife’s amended Application in a Case dated 19 October 2018 are listed for hearing at 2.15 pm on 6 February 2019
4. The Court notes that the Husband says that he consents to Order 2 without resiling from the issues raised in his appeal and stay application.
In terms of order 3, I note that the husband had filed an appeal, and subsequently a stay application, in relation to orders 3, 4, 5, 8, 9 and 10 made on 19 October 2018. That appeal has, however, now been discontinued. Accordingly, at the hearing on 6 February 2019, the husband did not press his stay application and the following notation was made:
A. It is the intention of the parties that the appeal filed by the husband on 15 November 2018 (EAA153/2018) will be withdrawn and dismissed, with no order as to costs in relation to that appeal or the cross-appeal filed by the wife on 10 December 2018.

Applications

The orders sought by the wife are set out in her Amended Application in a Case filed on 19 December 2018, as amended pursuant to her case outline document, as follows:
1. That by way of enforcement, within 24 hours of the making of these Orders, the husband shall do all acts and things necessary to ensure that the following amounts shall forthwith be released to the wife from the C account number BSB - … Account Number - …12:
1.1 Pursuant to Order 2 of the Orders made by the Honourable Justice McClelland on 19 October 2018 ("the Orders") the sum of ~~$7,030~~ $18,932.50;
1.2 Pursuant to Order 3 of the Orders, a further sum of $50,000 to be released to the wife's solicitors and paid to the Barkus Doolan trust account, account details as follows:
Barkus Doolan Trust Account
Bank: National Australia Bank
Address: …
BSB: …
Account no: …63
Reference: …89:Gresham
2. The balance of the funds to be made available for the payment of the wife's legal fees pursuant to Order 3 of the Orders, namely the sum of $45,000 shall be transferred from the C account to the solicitors trust account identified in Order 1 above, upon the wife's solicitors writing to the husband's solicitors and confirming the amount required to meet the wife's legal costs and disbursements whereupon the husband shall within 7 days, sign all documents necessary to facilitate the transfer of the amount specified to the wife's solicitor's trust account from the C account and in the event that the husband fails to comply with this Order, the Registrar is permitted to sign any documents required by ANZ on behalf of the husband pursuant to 106A of the Act.
3. That by way of enforcement of Order 11 of the Orders, the husband shall forthwith pay to the wife the sum of $2,298.
4. That the husband forthwith do all acts and things to pay the sum of $31,690 into the C account ANZ … Account Number: …12.
5. That the husband be and is hereby restrained from:
5.1 Dealing with, encumbering or disposing of any assets held in his name in Australia or overseas, solely or jointly with any other person or through any entity or in which he holds an interest either directly or indirectly, pending Final Orders being made in the proceedings, without first obtaining the wife's consent in writing.
6. That any bonuses received by the husband through his employment, whether by way of sale of shares or cash, be directed and paid into the parties' C account with ANZ, being account … Account Number: …12 and the husband shall do all acts and things and sign all documents necessary to comply with this Order.
7. That the wife be granted leave to serve these Orders upon [Company O] and the husband's employer.
8. That the husband's Application in a Case filed 18 December 2018 be dismissed.
9. That the husband pay the wife's costs of and incidental to these proceedings on an indemnity basis.
The husband opposes that application.

Evidence

At the hearing, the wife relied upon the following documents:
a)Her Affidavit filed on 13 December 2018; and
b)Her Affidavit filed on 5 February 2019.
The husband relied upon the following documents:
a)His Affidavit filed on 18 December 2018; and
b)His Affidavit filed on 4 February 2019.

The parties’ respective contentions

Expenditure of B Bank Offshore Bond funds by the husband

The wife contends that the husband has acted contrary to, or in breach of, the orders made on 19 October 2018, in that, on 15 November 2018, he caused the sum of $31,690, which had been withdrawn from the B Bank Offshore Bond, to be deposited into his personal ANZ bank account. As a result, the wife contends that the husband has rendered himself incapable of complying with order 5 made on 19 October 2018, as set out above.
The husband, on the other hand, contends that the orders made on 19 October 2018 did not restrict his ability to access funds held in the B Bank Offshore Bond. The husband contends that his decision to withdraw funds from that account was not made capriciously or with an ulterior motive, but rather, for the purpose of undertaking legitimate expenditure in respect to himself and the wife. Specifically, the husband asserts that he has since expended those funds in the following manner:
a. Payment of Virgin Credit card, which included.
i. $1,368.91 Electricity at [Suburb E] property.
ii. $2,682 Repair of [the wife's] car.
iii. $255.20 Pathology (Blood tests).
iv. $875.71 Electricity for my flat- Paid November 2018.
b. $461.73 Gas at [Suburb E] property- Paid November 2018.
c. $7,389 required advance quarterly instalment payment to ATO - Paid November 2018.
d. $5,162 Legal Watson & Watson - Paid November 2018.
e. $525.30 Car registration-Paid November 2018.
f. $295 Car service - Paid November 2018.
g. $471 .41 [Insurance] (Green slip)- Paid November 2018.
h. $632.70 School books etc required for 2019-Paid November 2018.
i. $300 Contact lenses -Paid November 2018.
j. $373.80 Girls ballet & dance - Paid November 2018.
k. $417.95 ATO iro FY16 amendment- Paid December 2018.
l. $3,724 Spousal maintenance - Paid December 2018.
m. $2,793 Advance Spousal maintenance to cover Christmas period- Paid December 2018.
n. $3,800 Rent payment
o. $163 On Christmas
Specifically, Senior Counsel for the husband asserts that those expenses underlined above were paid in compliance with his client’s obligations, pursuant to the orders made on 19 October 2018.
Comparatively, the wife asserts that the husband has inappropriately accessed those funds in circumstances where she had no prior knowledge of him making the transfer into his personal bank account, other than upon the filing of his Affidavit on 18 December 2018. The wife further contends that the husband has failed to provide full and frank disclosure in relation to the expenditure of those funds.
Senior Counsel for the wife submitted that the orders made on 19 October 2018, specifically orders 4 and 5, do not state or infer that the husband should have access to the funds held in the B Bank Offshore Bond in order to meet his obligations in relation to those orders generally, or to meet his own expenses. The wife asserts that those funds were to remain in the B Bank Offshore Bond, for the purpose of the husband making periodic spousal maintenance payments, until exhausted.
In those circumstances, the wife seeks an order for the amount of $31,690 to be transferred back into the C Account by the husband. This, she contends, would facilitate her spousal maintenance payments of $931 per week being made from that account until the final hearing in July 2019. This would be in addition to the distributions of $95,000 for the legal fees and $18,932 for medical expenses to her, which she also seeks to be made from that account.
Senior Counsel for the wife submitted that the husband has the capacity to make that payment of $31,690. In that respect, she submits that in November 2018, the husband's AON shares, valued at $65,610, vested. Further, the husband is due to receive an annual employment bonus in March 2019. While Senior Counsel for the wife submitted that the quantum of that bonus is currently unknown, in 2017 it was in the gross sum of $79,250. That history, it was contended, gives some indication that the husband will shortly receive funds that will enable him to repay the figure of $31,690 to the C Account.
Comparatively, Senior Counsel for the husband submitted that, since the orders of 19 December 2018 were made, all spousal maintenance payments to the wife, and arrears thereof, have been made from the C Account. As at the date of hearing, the balance of that account was $124,000. He submitted that the spousal maintenance payments should continue to come from the C Account and that the mechanism for doing so would be to reduce the distribution for legal fees to be made to the wife from $95,000 to approximately $85,000. In this way, if distributions for medical expenses of $18,932 and lump sum spousal maintenance for a period of 22 weeks, being the time between the interim hearing and the final hearing in July 2019, were made, this would leave approximately $84,000 in the C Account for payment of the wife’s legal fees.
Comparatively, Senior Counsel for the wife submitted that order 2(a) made on 19 December 2018 stipulates that such spousal maintenance payments shall be made from the C Account “whilst ever there are sufficient funds in that account to meet the obligation” and that once that fund is exhausted, the obligation for meeting that expense should fall back on the husband. He stated that, in the absence of an appeal or application for variation, the Court does not have power to amend the orders made on 19 October 2018 and so, once the funds in the C Account have been depleted, in terms of the distributions sought by the wife, the obligation to make spousal maintenance payments should fall back on the husband pursuant to order 5 made on that date.

Payment of the wife’s medical expenses

In accordance with order 2 made on 19 October 2018, up to $40,000 is to be released to the wife from the C Account for the purpose of meeting her medical expenses. That order requires reimbursement of the wife from that account within seven days of the production of such receipts of invoices.
To date, the husband has not authorised the release of funds sought by the wife from the C Account in relation to her dental and surgical expenses.
The wife asserts that both her dentist and the specialist she has engaged with in relation to her medical treatment require pre-payment prior to carrying out the relevant treatment. The estimated total out of pocket expense for the wife’s surgery is $11,902.50. The wife has also been provided with an invoice for the costs of dental treatment required by her, in the sum of $7,030. The wife has therefore sought an order that the combined cost of those procedures, being $18,932, be released to her from the C Account, in enforcement of order 2 made on 19 October 2018.
I note that, while the wife is unable to give evidence as to any rebate she may receive for that treatment from her private health insurance or Medicare, her solicitors have confirmed in correspondence to the husband’s solicitors that she will deposit any such rebate received back into the C Account. Her Senior Counsel similarly confirmed that to be the case at the hearing.

Payment of the wife’s legal fees

As set out above, order 3 made on 19 October 2019 requires that, of the $185,000 transferred to the C Account from the B Bank Offshore Bond, $145,000 be deposited into the trust account of the wife’s solicitors for the purpose of funding her litigation expenses. That order was stayed until 6 February 2019, to the extent to which that sum exceeded $50,000, pursuant to the orders made on 19 December 2018.
On 20 December 2018, in accordance with order 2 of the orders made on 19 December 2018, $50,000 was transferred from the C Account to the trust account of the wife’s solicitors. The sum of $49,724.82 was applied to outstanding tax invoices. A balance of $3,275.18 remains in that trust account.
As at 4 February 2018, being one day prior to filing her most recent Affidavit, the wife asserts that her legal expenses were $10,043.40, in terms of outstanding costs for December 2018, and $7,407, in terms of “work in progress” for January 2019.
The wife contends that she will incur substantial additional legal costs in the preparation of this matter for hearing.

The wife’s expenditure

As set out above, the wife seeks that the distribution on account of her legal fees be deposited into her solicitors’ trust account and the distribution on account of her medical expenses transferred to her. Senior Counsel for the husband submitted that, if a distribution were made directly to the wife, based on evidence of her past expenditure, it could not be accepted that she would actually apply those funds to the payment of her medical expenses.
In that regard, Senior Counsel for the husband submitted that, in late-2018, extensive works were undertaken at the Suburb E property. The parties agree that certain of those works were necessary to comply with council requirements, in terms of pool safety at that property. The husband asserts that, if that compliance issue had been resolved in the most economical manner, it would have been at a cost of $4,011.70, being the amount paid by the wife for “the construction of the slat fence and fate to the underside of the pool”, as quoted by KK Pty Ltd (Annexure “…G16” to the wife’s Affidavit filed on 5 February 2019).
In her Affidavit, the wife explains that she has paid $11,913 in relation to those works, and that the outstanding invoices total $21,541.20. In that way, the total cost of those works will be approximately $33,454. This is substantially more than the initial quote for the cost of the works, which was $25,342. The wife says that she had the option of having glass fencing installed around the pool, at a cost of approximately $20,000, but did not utilise this option for “aesthetics and safety as [she] was concerned that the children [may] kick a ball [or] run into the glass fencing”.
Further, Senior Counsel for the husband sought to draw the Court’s attention to the fact that statements for the wife’s Westpac Choice bank account (XX-…38) indicate items expenditure at retailers between August and October 2018. However, Senior Counsel for the wife submitted that the same statements also show significant refunds from those retailers during that period.

Consideration

The wife’s proposed orders 1 and 2

There did not appear to be a dispute between the parties as to the nature of the husband’s responsibility pursuant to order 2 of the orders made on 19 October 2018. The difficulty that has arisen is that the orders require the relevant payments to be made in respect to medical expenses upon the production of receipts for the same. As was explained at the hearing, the wife’s treating dentist and the surgeon engaged to repair her medical condition require payment prior to performing their services.
The husband contended that, other than in respect to certain aspects, the proposed dental treatment is cosmetic and can be postponed until final determination of the matter. The wife, on the other hand, referred to correspondence attached to an email from her dentist dated 6 February 2019 (Exhibit “2-W”). The correspondence from the wife’s dentist dated 21 November 2018 relevantly stated:
Following on from our dental examination and hygiene appointment on 4 April 2018 I have enclosed an estimate of treatment costs to address your particular dental concerns.
On 4 April 2018 I showed you some clinical photographs of your teeth identifying old composite restorations in your molar and premolar dentition with visible cracks and leaking margins. To address these concerns, we have discussed replacing the current restorations using porcelain restorations and wearing an occlusal splint nightly.
Further, the email from the dentist dated 6 February 2019 states:
Your treatment is not for teeth whitening, it is for restorations of your teeth.
In light of that correspondence, it would, in my opinion, be unacceptable to require the wife to await the delivery of judgment in the substantive proceedings before receiving the relevant dental treatment.
In addition, the wife sought a further release of $11,902.50, pursuant to order 2 made on 19 October 2018, in respect to the surgery. In that respect, at paragraph 12 of her Affidavit filed on 4 February 2019, the wife states:
I suffer from a [medical condition] and I am under the treatment of Dr [EE] in this respect. On 1 May 2018, Dr [EE] provided a surgical fee estimate which estimated:
(a) out of pocket cost to be $9,312.50 (after an estimated rebate of $407.50); and
(b) other costs and fees (e.g. for the anaesthetist and excess) totalling $2,590.
For reasons I have set out in respect to the need for the wife to undergo dental treatment, it is similarly my view that it would be unreasonable to expect her to await the final outcome of these proceedings before receiving surgical treatment.
In that regard, the husband noted that the fact that the wife’s doctors require pre-payment in respect to her treatment would result in the wife’s receiving a distribution of funds, in respect to those expenses, above and beyond the actual expense incurred. This is because the wife will be entitled to some rebate from the parties’ private health insurer or Medicare in respect of that treatment. In those circumstances, I will note the undertaking by the wife that she will return to the C Account the amount she receives by way of rebate from her private health insurer or Medicare.
Accordingly, subject to the notation that I have referred to immediately above, I will make order 1.1 as sought by the wife.
In respect to the wife’s proposed orders 1.2 and 2, which deal with the payment of legal fees, Senior Counsel for the wife submitted that the Court’s “hands were tied” in relation to any variation of the orders made on 18 October 2018 and that, in the absence of those orders being complied with, they should be enforced.
In that respect, reference was made to the decision of the High Court in Bass v Permanent Trustee Group (999) 198 CLR 334 at 360, where their Honours stated:
Once an issue is determined at the interlocutory stage, and the trial continues, the primary judge's hand is tied in respect of all matters of fact and law involved in that determination. In Fidelitas Shipping Co Ltd v VIO Exportchleb (112), Diplock LJ pointed out:
"Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence."
I accept that I am bound by that authority. In circumstances where the husband has discontinued his appeal against the orders made on 19 October 2018 and is not seeking a stay of those orders and, in the absence of an application to vary those orders, they should be complied with.
As noted, the husband contends that the he should only be compelled to comply with those orders to the extent of facilitating the transfer of $85,000 from the C Account to the wife’s solicitors’ trust account, rather than the balance of $95,000, as originally ordered. As summarised above, the reasoning behind that submission is that a reduction of the amount to be transferred in respect to legal fees would enable the husband to satisfy his obligations in respect to spousal maintenance throughout the 22 week period between the interim hearing and the final hearing in July 2019.
Insofar as I will regard the husband’s submissions made on 6 February 2019 as an oral application to vary the orders made on 19 October 2018, he is required to satisfy the threshold for variation of an interim order as adumbrated by the High Court in Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated (1981) 148 CLR 170 at 178, where the majority said:
… in our opinion, a court undoubtedly has such a power [to amend or vary an interlocutory order or undertaking accepted in respect to an interlocutory order]. Just as an interlocutory injunction continues “until further order”, so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust. Of course, the changed circumstances must be established by evidence. [Emphasis added, references omitted].
In that decision, the High Court applied Cutler v Wandsworth Stadium Limited (1945) 1 All ER 103 in confirming that the onus rests upon the person seeking to vary the consent or interim order to establish those changed circumstances.
In this case, the husband carries the onus of satisfying the Court that the wife’s expenditure on landscaping at the parties’ former matrimonial home, together with certain other items of personal expenditure, constitutes changed circumstances such that it would render the enforcement of the orders made on 19 October 2018 unjust.
The difficulties for the Court in making findings of fact in interim proceedings are well known. In Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [44], Cronin J said:
In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction.
Similarly, in Acton & Burton [2015] FamCA 469 at [47], Hogan J said:
The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them.
The wife’s evidence in relation to her expenditure on landscaping in and around the pool area at the former matrimonial home was that, for safety reasons, it was necessary to replace the pool fence and, in circumstances where it may well be the case that it will be necessary to sell the property, it would have been contrary to the parties’ interests for that work to be undertaken in a manner that was less than adequate or out of character with the substantial value of a luxury property. There is insufficient information before me, at this interim stage, for me to make a determination regarding that issue.
Similarly, while the husband presented evidence of the wife engaging in significant expenditure in respect to personal items, including pots, for pot plants, there also appeared to be significant amounts returned to the relevant bank account in respect to those items. Again, in the absence of more detailed evidence, including the wife having the opportunity to explain that expenditure, I am not prepared to determine that the wife’s actions, in that regard, were wasteful or capricious.
In those circumstances, the husband has failed to satisfy me that the orders made on 19 October 2018 should be varied by reducing the amount that is to be paid to the trust account of the wife’s solicitors. Accordingly, as order 3 made on 19 October 2018 has not as yet been complied with, it is also appropriate to make orders 1.2 and 2, as sought by the wife.

The wife’s proposed order 3

As noted, the wife seeks that the husband transfer the sum of $2,298 to her by way of enforcement of order 11 made on 19 October 2018. That order gave the wife liberty to apply in the event that the husband had not complied with order 1(a) made on 7 May 2018. That order, in turn, required the parties to cooperate to effect a transfer of $50,000 from the B Bank Offshore Bond to the wife.
That issue was dealt with in my Reasons for Judgment dated 19 October 2018, at paragraphs 42 to 45, as follows:
The wife contends that the husband has failed to comply with order 1(a) of the orders made by Rees J on 7 May 2018, in that he has only paid to her the sum of $45,000, rather than $50,000. It is quite clear that the order, which was made by consent, required the husband to pay to the wife the sum of $50,000, in addition to “outstanding school fees with respect to the children’s attendance at [U School], [JJ School and [Suburb E Prep]”.
The husband, however, contends that the lesser amount was paid to the wife as a result of the wife choosing to receive the amount in British Pounds, at £37,000. That amount converted to $63,932.01. Of that amount, $17,168.91 was utilised as payment for the children’s school fees, leaving $46,763.10 to satisfy the payment to the wife so ordered. The husband contends that he further increased that figure by $939, so that the sum of $47,702 was paid to the wife in accordance with the relevant orders.
Therefore, by his own admission, after payment of the relevant school fees, the husband has only paid to the wife the sum of $47,702 and he should forthwith pay the balance of $2,298 to her.
I will give the wife liberty to apply if this situation is not rectified within 14 days of the date of these orders.
It is disappointing that this matter has not been resolved. I have already found that the husband should be required to comply with order 1(a) made on 7 May 2018 and as such, to the extent that compliance has not yet been achieved, I will make order 3 as sought by the wife, in enforcement of that earlier order. In including that proviso, I note that correspondence tendered by the wife on 22 March 2019 (Exhibit “BB”) included a letter from the husband’s solicitors to the wife’s solicitors dated 22 March 2019, in which it was stated that husband had paid to the wife a sum of $2,298. A reference is made to that payment being in terms of “Order 44”. This appears to be a typographical error and it is unclear whether this payment relates to order 1(a) made on 7 May 2018 or order 4 made on 19 October 2018.

The wife’s proposed order 4

Proposed order 4 is in the nature of a mandatory injunction requiring the husband to pay an amount of $31,690 into the C Account for the purpose of addressing, what the wife contends was, his inappropriate withdrawal of an equivalent amount from the B Bank Offshore Bond.
The transfer of that sum would also ensure that there are sufficient funds in the C Account to enable the husband to comply with order to 2(a) made by consent on 19 December 2018 for the payment of $931 per week to the wife by way of spouse maintenance. Such payments were to be made from the C Account “whilst ever there are sufficient funds in that account to meet the obligation”. Thereafter, such payments are to be met by the husband, pursuant to order 4 made on 19 October 2018.
In that regard, orders 4 and 5 made on 19 October 2018 read, as follows:
4. Subject to order 5 herein, the husband pay to the wife, by way of periodic spousal maintenance, the sum of $931 per week, with the first payment to be made within seven (7) days and weekly thereafter.
5.The husband’s obligation to pay spousal maintenance, pursuant to order 4 herein, is subject to the wife taking all steps as are necessary to facilitate such payments being made from the [B Bank] Offshore Bond until those funds have been exhausted and, thereafter, from such other account or source of funds as is nominated by the husband.
Those orders make clear that the husband’s obligation to pay spousal maintenance to the wife continues irrespective of the source of funds utilised to meet those payments. In other words, the wife’s proposed order 4 serves no greater utility than orders 4 and 5 made on 19 October 2018, which required the husband to pay ongoing spousal maintenance to the wife in the sum of $931 per week.
Accordingly, I will dismiss the wife’s proposed order 4.

The wife’s proposed order 5

The wife seeks to restrain the husband from dealing with, encumbering or disposing of any assets held in his name without first obtaining her written consent.
At the hearing, it was not in dispute that s 114 of the Family Law Act 1975 (Cth) (“the Act”) empowers the Court to make such an order where appropriate. Accordingly, I note that the applicant for such an order must establish:
a)That there is a real risk of assets being disposed of (Cardile v LED Builders Pty Limited (1999) 198 CLR 380 at [122]); and
b)That, as a result of that risk, there is a real ground for believing that the applicant will be prejudiced in the remedy he or she is seeking (Glover v Walters (1950) 80 CLR 172 at 176).
In that respect, in Curtis v NID Pty Limited [2010] FCA 1072, Edmonds J said at [8] to [10]:
8. The test in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 is in similar terms to O 25A r 5(4). In that case, Gleeson CJ, with whom Meagher JA broadly agreed, said, at 321 – 322, as follows:
[A] plaintiff will need to establish … a danger that, by reason of the defendant absconding, or of assets being removed from the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied.
9. ‘Danger’, however, is not defined. In some cases, judges have employed the phrase ‘real risk’ to identify the degree to which a plaintiff must demonstrate that a prospective judgment will go unsatisfied: see, for example, Cardile at [122] per Kirby J; Ninemia [1983] 1 WLR 1412 at 1422 per Kerr LJ. In others, it has been said that an applicant must establish ‘a sufficient likelihood of risk which in the circumstances of a particular case justifies an asset preservation order’: Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 226 at [14] per Kiefel J, approving Victoria University of Technology v Wilson [2003] VSC 299 at [36] per Redlich J. There is even a third view, namely, that the plaintiff establishes ‘a sufficient apprehension of dissipation of the … assets’: Vaughan v Duncan [2007] NSWSC 811 at [5] per Hamilton J.
10. What is settled, however, is that solid evidence of a danger of dissipation or disposal of assets be produced. The relevant test was enunciated by Brereton J in Finn v Carelli [2007] NSWSC 261 at [4], where his Honour referred to the NSW Court of Appeal’s decision in Frigo v Culhaci [1998] NSWCA 88:
It is not necessary for an applicant to show that the respondent has a positive intention of evading a judgment, and it is sufficient to show that the course on which the respondent proposes to embark is, objectively speaking, calculated to have that effect. But as the Court of Appeal made clear in Frigo v Culhaci, an applicant must establish, by evidence and not mere assertion, that there is a real danger that by reason of the respondent absconding or otherwise dealing with assets, the applicant will not be able to have its judgment satisfied. While acknowledging that there has been much debate as to the precise degree to which that has to be shown, the Court emphasised that mere assertion that the defendant was likely to put assets beyond the plaintiff’s reach was inadequate, for which the Court cited Ninemia Maritime Corp v Trave GmbH & Co Kg (The Niedersachsen) [1984] 1 All ER 298 as well as Patterson v BTR Engineering.

In these proceedings, there has been no evidence produced which would establish that the husband’s conduct presents “a real danger” that he will deal with the property of the parties such that the wife’s interest will be prejudiced at final hearing. In that regard, I note that the major asset in these proceedings is the former matrimonial home and that it is not disputed that the wife and the children will continue to live there, pending final determination of this matter.
Accordingly, I will dismiss the wife’s proposed order 5.

The wife’s proposed order 6

The wife’s proposed order 6 is similarly in the form of a mandatory injunction requiring the husband to deposit into the C Account any employment bonuses received by him.
In the context of family law proceedings, in Sieling and Sieling (1979) FLC 90-627 at 78,264, the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order and frame its order in such a way to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim.
In that way, the employment bonuses received by the husband are his property and the Court should not lightly impose a restriction on his use of those funds in the absence of evidence that such a restriction is necessary to protect the wife’s interests. While the wife has been critical of the husband for transferring funds from the B Bank Offshore Bond to his personal account, there was no specific restraint prevented him from doing so. Further, while some of those funds so transferred have been spent in respect to the husband’s interests, a substantial portion of them were spent in the interests of the wife and the children. In other words, there is no evidence that the husband has spent the funds wastefully or capriciously. Specifically, there is no evidence that the husband has engaged in a course of conduct that can reasonably be inferred to present a “real risk” of the wife’s interests being adversely impacted upon at final hearing.
In making that statement, it is to be acknowledged that the wife has some doubt as to whether the husband will comply with his obligation to pay spousal maintenance after the funds held in the C Account have been exhausted. However, at this stage, that is merely speculative and does not justify the restriction that the wife’s proposed order 6 would place on the husband. If that speculation proves to be accurate, the wife may seek to enforce her entitlement to spousal maintenance either prior to, or at, the final hearing of the matter.
Accordingly, I will dismiss the wife’s proposed order 6.

The wife’s proposed order 7

In circumstances where I have not granted the injunctive relief sought by the wife at her proposed order 6, it is unnecessary to grant her leave to serve a copy of the orders upon the husband’s employer.
Accordingly, I will dismiss the wife’s proposed order 7.

Additional evidence

In the period subsequent to the interim hearing, by email to my Chambers dated 28 February 2019, the husband provided a schedule that he contends details funds received by the parties during the period August 2018 to late-January 2019 “excluding UK rent which used in full to fund Life and Critical Illness Insurances in support of the family”.
By email dated 6 March 2019, the solicitors for the wife provided brief submissions in response to that schedule, in which it was contended that certain of the husband’s representations, in that regard, were not substantiated by the evidence adduced in this matter.
By email dated 7 March 2019, the solicitors for the husband reiterated their position that the Court should have regard to their written submissions. On 11 March 2019, further correspondence was sent by the solicitors for the husband to Chambers, in which it was stated:
It would therefore appear that there is a dispute regarding the significance of the document provided by the Husband and its potential relevance to proceedings.
In the circumstances, we ask for the matter to be relisted in open Court.
As a result of that disagreement between the parties, the matter was listed for further hearing on 22 March 2019. At that further hearing, the husband was given leave to tender a document entitled “Summary of funds received by the husband for the period August 2018 to January 2019” (Exhibit “AA”) (“the summary of funds document”). Further, at that hearing, over objection, the wife was given leave to tender letters from the husband’s solicitors dated 21 and 22 March 2019 (Exhibit “BB”).
The parties were invited to address the Court on the significance of the respective documents to the matters before the Court in the interim proceedings. The solicitor for the husband contended that the summary of funds document established that the sources of funds received by the husband in respect to the period August 2018 to late-January 2019 were his wages, proceeds from the sale of assets and a reimbursement of medical bills.
The wife contended that the correspondence from the husband’s solicitors, which attached details of a performance bonus received by the husband, in accordance with a letter to him from his employer dated 27 February 2019, totalling $70,200, established that the husband had and continues to have access to a financial resource that he has applied for his benefit, rather than for the benefit of the wife and the parties’ children. The husband, however, contends that the bonus was applied to meet some personal expenditure, as set out in the letter from his solicitors dated 22 March 2019, as well as in payment of the mortgage secured over the former matrimonial home, in the sum of $10,498.68. As stated above, that letter dated 22 March 2019 also confirmed that the husband had paid to the wife the sum of $2,298 after 14 March 2019.
I have earlier referred to the difficulty of making findings of disputed facts in interim proceedings. It has been unnecessary to resolve the controversy between the parties as to the source of funds received by the husband for the period August 2018 to late-January 2019, nor has it been necessary to make a determination as to the appropriateness of the purposes for which those funds have been applied. This is because I have determined that the husband has an obligation to facilitate the payment of the relevant medical and dental accounts to which I have earlier referred. I have also determined that the husband has an ongoing obligation to pay spousal maintenance in accordance with the orders made on 19 October 2018, irrespective of the source of those funds. Further, for reasons explained above, the wife has not satisfied me that the nature of the expenditure engaged in by the husband is such that there is a real prospect of the wife’s interest being adversely impacted at final hearing.
However, for reasons which I explain, I have had regard to the fact that the husband has recently received a bonus payment of $70,200, in respect to the trial directions that I have made.

Trial directions

I note that this matter has been listed for hearing for five days, commencing 1 July 2019. To their credit, on 22 March 2019, the parties advise the Court that they had reached agreement in respect to proposed orders constituting the trial directions, which are set out at the commencement of these Reasons for Judgment, other than in respect to the question of payment of experts’ fees.
In that respect, the wife contended that the husband should pay the costs of the Single Experts in the first instance and that there should be an accounting of that payment in the final adjustment of the parties’ property. Comparatively, the husband contended that the wife has not satisfied the Court that rule 15.47 of the Family Law Rules 2004 (Cth), which provides that the parties should jointly share the cost of a single expert, should not apply.
In this matter, I have determined that rule 15.47 should apply in the sense that the wife should ultimately be responsible for meeting half of the cost of the Single Experts. However, I am concerned that if an order is made requiring the wife to meet half of that cost prior to the hearing, she may not be able to do so. That could result in the Experts’ Reports being unavailable prior to the hearing or the Experts themselves not being available to give evidence at the hearing. This would prejudice the ability of the Court to hear and determine the parties’ substantive applications in July 2019.
On that basis, and having regard to the fact that the husband has recently received a performance bonus from his employer in the sum of $70,200, I am satisfied that it is reasonable and appropriate to require the husband to meet the cost of the Single Experts in the period leading up to the hearing, noting that he will ultimately be reimbursed for 50 per cent of those costs by the wife.

Ancillary orders

In circumstances where the parties have previously entered into Heads of Agreement with a view to resolving matters in dispute between them, it is regrettable that there has been ongoing litigation, at considerable expense to them. In those circumstances, as I foreshadowed to the parties on 22 March 2019, I have made orders requiring the parties to provide disclosure to each other as to their respective legal costs incurred to date and likely to be incurred in terms of the final hearing. I will make a further order that, having been appraised of those costs, the parties make formal offers of settlement within an additional seven days. During the course of the interim hearing, I explained to the parties the potential cost consequences that stem from the making of those formal offers.

Costs of these interim proceedings

I note that the wife has been successful in respect to certain elements of her application and that other aspects have been dismissed. In circumstances where this matter is shortly to be listed for final hearing, I propose making an order for the issue of costs in respect to these proceedings to be reserved for determination at final hearing.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 2 April 2019.

Associate:

Date: 2 April 2019