Gull and Gull

[2009] FamCA 131

FAMILY COURT OF AUSTRALIA

GULL & GULL [2009] FamCA 131

FAMILY LAW – INJUNCTIONS – Application in a case relating to injunctions about mortgage account pending the determination of an appeal

Family Law Act 1975 (Cth)

APPLICANT: Ms Gull

RESPONDENT: Mr Gull

FILE NUMBER: MLC 10581 of 2008

DATE DELIVERED: 27 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 27 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That by consent of the husband, until further order, the husband be restrained from operating Westpac Account …4.

2. That the wife’s application filed 31 December 2008 is otherwise dismissed.

3. That the exhibits be forthwith returned to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Gull & Gull is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10581  of 2008

MS GULL

Applicant

And

MR GULL

Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife in a saga that continues in this Court. There is an appeal pending from orders made in March 2008.

2. The application for interim orders was filed by the wife on 31 December 2008. It was listed before Mushin J on 2 February 2009 but was not reached. It was adjourned until 27 February 2009.

3. There is a question in this case about the jurisdiction to make the orders sought but neither party raised any concerns. Quite the contrary, each indicated that I should hear the matter. That does not mean that the Court has jurisdiction but rather that to make orders, there has to be a legitimate jurisdictional power.

4. The wife began by seeking leave to file another affidavit but having regard to the fact that she had not provided the husband with a copy of that in advance and he would have needed to read it and potentially obtain advice, I refused leave. It will become apparent from my reasons below why that course was also the proper one to take in this case.

5. I heard both parties in person and indicated that I did not have time to give an ex tempore judgment but would give reasons and orders later. These are those reasons for the orders that I intend now to make.

6. By way of background, on 19 March 2008, Mushin J made final property orders. For the purposes of my determination, the relevant ones were:

   (4)Both parties sign all documents and do all things necessary to cause the investment monies to be repatriated from India to Australia.

   (5)All outgoings required to give effect to paragraph (4) hereof be paid from the investment monies.

   (6)Forthwith upon arrival in Australia, the investment monies be paid into an appropriate interest bearing account in Australia to be held on trust by the solicitor for the husband for the benefit of the parties in accordance with these orders.

   (7)Forthwith upon the parties’ compliance with paragraphs (4) and (5) hereof:

   (a)The husband do all things and sign all documents to transfer all his right, title and interest in the former matrimonial home to the wife at her expense;

   (b)The wife do all things and sign all documents to transfer all her right, title and interest in the [B] property to the husband at his expense; and

   (c)Contemporaneously with the transfers referred to in sub-paragraphs (a) and (b) of paragraph seven (7) hereof:

   (i)The wife indemnify the husband and keep him indemnified against all liability past, present and future in respect of all outgoings including principal and interest on any mortgage and any other loan in respect of the former matrimonial home;

   (ii)The husband indemnify the wife and keep her indemnified against all liability past, present and future in respect of all outgoings including principal and interest on any mortgage and any other loan in respect of the [B] property; and

   (iii)Each party remove any caveats placed by or on his or her behalf on either the former matrimonial home or the [B] property or both so as to give the transferee of such property clear title thereof subject the specific provisions of these orders.

   (8)Save as provided herein and subject to the liberty to apply reserved herein, property in all items of personal property forthwith vests in the party presently having possession thereof.

   …

   (10)Liberty be reserved to both parties to apply in respect of any machinery provision of these orders and generally.

7. It will be seen that each party was to have a house and each was to take responsibility for an encumbrance but importantly, that transfer was not to be effected until paragraph 4 was complied with. Leaving aside any issue of an appeal in this case, it was common ground between the parties that the wife had not given effect to paragraph 4.

8. Subsequent to the making of the orders on 19 March 2008, the wife appealed. I was informed that the orders of Mushin J have been stayed pending the appeal. In addition, the wife said that there are only parts of the orders that are subject to the appeal. As best I can determine, her major focus in the appeal is on paragraph 4. That in turn prevents the activation of the orders in paragraph 7 and therein lies the dilemma. Whilst everything is on “hold”, the mortgagee holding the security of the two properties referred to in paragraph 7 needs to be paid.

9. On 16 May 2008, the dilemma reared its head. Mushin J made the following orders:

   UPON THE UNDERTAKING of the wife given in person this day in Court that she will abide any order for damages which the Court finds arise to the husband as a result of these orders:

   (1)The orders made on 19 March 2008 be and are hereby stayed both as to application and execution until determination of the wife’s appeal against those orders to the Full Court of the Court.

   (2)Until determination of the appeal or further order the parties be and are hereby authorised to draw on Westpac Account Number […4] in the name of the husband for the purpose of meeting outgoings on mortgages registered on the following properties in the stated amounts:

   a.as to the property known as and situated at [the former matrimonial home] $738 per month; and

   b.as to the property known as and situated at [B] $1000 per month. (emphasis mine)

   …

   (4)General liberty be reserved to both parties to apply.

10. I am not sure what brought on the application that gave rise to the orders of 16 May and it does not matter. Neither party appealed against the orders.

11. I have a strong sense that the wife read the underlined orders as injunctions precluding the use of the account for any purpose other than that set out in paragraph 2 (a) and (b) of the orders. If she did or still does so, on her material, I am not prepared to agree.

12. The parties were back in Court on 1 December 2008 and again without legal representation. The dispute continued. Mushin J made orders that until delivery of the Full Court judgment on the appeal, the husband sign any necessary document to enable the wife to obtain from the mortgagee bank, copies of all bank statements and other documents for a Westpac Account relating to the former matrimonial home which is the property mentioned in paragraph 7 (a) of the final orders made on 19 March 2008. The order makes clear that the husband was to do whatever was necessary to enable the wife to have the statements for the period from 19 March 2008 onwards.

13. One would have thought that subject to the determination of the appeal, the matter would lie dormant but again, there is now another dispute which has a significant impact on this Court’s resources. The parties have no dialogue with each other and without the objective intervention of lawyers, they cannot resolve even the most simple of issues.

14. On 31 December 2008, the wife filed an application seeking orders which in essence were as follows:

    (a)the Court take “serious action” against the husband for “breaching” the orders of 16 May 2008 and 1 December 2008.

15. Dealing with that issue first, there is no application by the wife before the Court for the husband to be dealt with for contravention of orders or for contempt of court. It is a serious allegation and must be treated as such. Without a formal application, the order sought is incompetent and cannot succeed.

16. The second issue was:

    (b)That the husband “files” various bank statements from 19 March 2008 until 31 December 2008 “by way of affidavit”

17. The wife conceded as a result of a comment by the husband that she had received these documents at the court in December 2008.

18. Why they would need to be “filed” or by way of “affidavit” was explained by the wife on the basis that the parties did not deal with one another. This Court is not a mail box. It is the function of the Court and its judges to “quell controversies”.

19. Whilst the parties may not have legal representatives, they continue to use up resource time to the detriment of other court users who have serious controversies to be quelled. This has to stop.

20. There is therefore nothing in the second issue.

21. The third issue was:

    (c)That the husband “should not be allowed” to operate Westpac account […4].

22. When I asked the wife to point to some evidence in her affidavit that would support such an injunction, she relied upon a paragraph which asserts that after the orders were made on 19 March 2008, the husband had increased the “redraw” facility “for his personal purpose”.

23. To justify her assertion, the wife relied upon a Westpac Bank statement which showed one entry on 28 July 2008 in which the account was debited with $8,246.29 thereby increasing the mortgage indebtedness.

24. There was no evidence that the increase was the husband’s doing and certainly no evidence that it was used for his personal circumstances.

25. However, the difficulty in this case is that although the husband appeared in person, he filed no documents and said he was not really participating.

26. When I turned to him about the injunction sought by his wife, he readily said that he had no objection to an order being made that he not use the account. However, he produced a statement by the Westpac Bank which I also admitted into evidence as a business record which in my view explains the $8,246.29. It seems that the payments of the $1,000 under the orders of May 2008 were not being debited as they were intended by this Court. The bank, no doubt with the husband’s urging, rectified that with one payment. The wife produced no evidence to the contrary and the husband’s statement was not on oath but made a lot of sense.

27. Had the parties had these discussions long before this, particularly bearing in mind this application was before the Court in December, they would not have wasted the Court’s time let alone their own. I propose to make the order noting that the husband consents to it.

28. The fourth issue was:

    (d)      “The wife’s costs for this application reserved”

29. It is completely inappropriate to simply reserve costs for no reason leaving the problem of sorting them out to another judge on another day.

30. In this case, I asked the wife what costs she was seeking even without asking her about the issues that I would have to address in s 117 of the Family Law Act. Her first response was that she wanted $100.00. When I delved into that, it appeared that her out-of-pocket expenses were $20 for travelling but the rest was for her “inconvenience”. That is not an appropriate application to make at the best of times and certainly not in this case having regard to my earlier comments about the conduct of this litigation. I will not make an order for costs.

31. The final issue was:

    (e)That the increased mortgage liability after 19 March 2008 be repaid by the husband.

32. Without the assistance of any legal argument, this is venturing into the area of variation of the property orders. I explained to the wife that the s 79 power was a “once only” provision and that if I was to tinker with the orders, I would need to be satisfied about the distinction between machinery and a substantive provisions in relation to the variation.

33. More importantly, two other considerations arise. The first is that the Court made orders in May 2008 which permitted the use of the account pending the determination of the appeal. The wife did not challenge those orders in her appeal. The second point is that paragraph 7 of the March orders is not operative until the appeal is determined if the appeal relates to paragraph 4.

34. The wife asked me how this was going to be resolved and I have indicated that nothing can be done until the determination of the appeal. If her mortgage rises in the meantime, there may be an argument about the intention of the order but that has to be factored against the issue of her non-compliance with paragraph 4 which is subject to the appeal. In this case, I have no power to determine the issue nor should I. It is also inappropriate for me to give the wife legal advice and as I indicated to her, she should seek her own advice about how that issue is going to be resolved.

35. In the circumstances and for the reasons set out above, apart from making the injunctive order with which the husband agrees, the wife has no basis on the evidence to seek the other orders. Her application is therefore otherwise dismissed.

I certify that the preceding Thirty Five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  27 February 2009