Gull & Rickett (No 2)

[2009] FamCA 969

FAMILY COURT OF AUSTRALIA

GULL & RICKETT (NO. 2) [2009] FamCA 969

FAMILY LAW - Child Support

Family Law Act 1975 (Cth)

Black and Kellner (1992) FLC 92-287
In The marriage of Af Petersons and AfPetersons (1981) FLC 91-081
In The marriage ofBiltoft and Biltoft (1995) FLC 92-614
In the Marriage of Redman (1987) 11 FamLR 411
Weir and Weir (1993) FLC 92-338

APPLICANT: Mr Gull

1^ST RESPONDENT: Ms Rickett

2^ND RESPONDENT: Child Support Agency

FILE NUMBER: BRC 7914 of 2007

DATE DELIVERED: 12 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 5 October 2009

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE 1^ST RESPONDENT:

Ms Effeney

Herbert Geer

SOLICITOR FOR THE 2^ND RESPONDENT: Child Support Agency

Orders

1. Each of parties shall, within 7 days of the date of this order provide to the other party a written authority signed by them authorising any bank or financial institution of which each is, or was, a customer, and of which any company, trust or other entity of which that party has control, is or was a customer, to provide to the other party at their own expense all such documents and information which they might request.

2. Paragraphs 1 & 3 of the Application in a Case filed by the husband on 4 September 2009 are dismissed.

3. Paragraphs 3, 5, 6, 7 and 8 of the Response to an Application in a Case filed by the wife on 29 September 2009 are dismissed.

4. Save for meeting the repayments in respect of the Mitsubishi motor vehicle to the GMAC finance company, and the minimum monthly repayment required in respect of his credit card, the husband shall be restrained and an injunction is issued restraining the husband from paying any creditor other than Westpac, any money said to be owing by the husband whilst the mortgage in favour of Westpac Bank secured over the property at D in the State of Queensland (hereafter “the D property mortgage”) is in arrears and/or in default.

5. Save for meeting the repayments in respect of the Mitsubishi motor vehicle to the GMAC finance company, and the minimum monthly repayment required in respect of the husband’s credit card, the husband shall be restrained and an injunction is issued restraining the husband from incurring any further borrowing with Westpac Bank or increasing his credit limit on any credit card or loan account that he has with Westpac Bank or any other bank or financial institution.

6. The hearing of the costs of today is adjourned to the final hearing of the matter.

IT IS DIRECTED THAT

1. Any such funds invested pursuant to this order, not be subject to any lien on the part of the solicitors, so as to affect any entitlement of the husband to any such sums either agreed between the parties or ordered by the Court.

IT IS FURTHER ORDERED THAT

1. The net proceeds of sale of the former matrimonial home should such sale eventuate, and as a result of Westpac taking the action foreshadowed, be placed into a trust account in the joint names of the parties with Herbert Geer solicitors for the wife, to be invested in an appropriate investment chosen by them in consultation with the parties and to be there held on behalf of both parties subject to the parties reaching agreement and/or order of the court.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:   BRC 7914 of 2007

MR GULL

Applicant

And

MS RICKETT

1^st Respondent

And

CHILD SUPPORT AGENCY

2nd Respondent

REASONS FOR JUDGMENT

1. The first set of reasons delivered by me in this matter were delivered ex tempore on 14 July 2008.  I subsequently delivered reasons in a further interim application on 30 July 2009.  Consent orders had earlier been made by Jordan J on 18 February 2008. 

2. The current application and case, like the earlier application, occur within the context of the wife’s application for settlement of property.  Those proceedings cannot be set for trial, or otherwise finalised by agreement between the parties, until the crystallisation of a certain asset. That is contemplated as occurring either late this year or early next year. There will consequently be a need to value it. 

3. As will be clear, the hiatus thereby created has been productive of significant litigation between the parties.  Litigation in respect of parenting orders is also on foot.

4. On 30 July 2009, I made orders under a number of different headings.  Included among them were orders varying the amount of spouse maintenance, ordered to be paid by the husband by consent on 18 January 2008, from $510 per week to $200 per week.  Additionally, I dismissed those parts of an application in a case filed by the husband, effectively providing for the sale of the former matrimonial home in which the wife and the parties’ child were then, and are currently, residing.

5. A significant component of the proceedings to which my earlier reasons for judgment relate pertain to the husband’s alleged (relative) impecuniosity and alleged incapacity to meet the mortgage payments as and when they fell due. 

6. It was common ground then, and is now, that the mortgage payments are not being met by the husband, despite an order to that effect earlier made by consent on 18 February 2008.  The husband apparently continues to fail to service the mortgage debt secured over the former matrimonial home.  This application, in substantive terms, addresses very similar issues to those earlier interim proceedings. 

7. The husband’s application in a case seeks orders as follows:

   1.   That the Child Support Agency be directed to offset the following sums against any spousal maintenance that they may determine is outstanding:

   a.$2,535.57 representing Child Support over-payments made by the Applicant Husband to the Respondent Wife for the period 1 July 2008 to 24 February 2009;

   b.$334.00  representing the unexpired portion of car registration on the Subaru Liberty motor vehicle transferred to the Respondent Wife pursuant to the Orders of His Honour Justice Murphy dated 30 July 2009;

   2.   That the Respondent Wife be ordered to provide the following disclosure within seven (7) days:

   a.Full details of the Respondent Wife’s bank and credit card statements and in particular those statements from 2006 evidencing the funds referred to at paragraphs 18 and 21 of her Affidavit of 4 December 2007;

   b.Full details in relation to the Respondent Wife’s Guardian Funding loan outlined at paragraphs 43 through 45 of her affidavit of 10 March 2009 and in particular details on how she met the repayment of the loan outlined in her affidavit;

   c.Full details of the loan of $25,000.00 provided by the Respondent Wife’s Father, Mr [Rickett Snr] and outlined in her Affidavit  of 10 March 2009;

   d.As gifts from parents have been made relevant by the Respondent Wife’s demands for disclosure from the Applicant Husband, full disclosure in relation to any gifts provided to her by her parents or brother;

   3.   That until a decision is handed down on this Application that the Child Support Agency be directed to stay payment of spousal maintenance to the Respondent Wife;

   4.   That the Respondent Wife meet the Applicant Husband’s full costs of and incidental to this Application;

   5.   Such further or other Orders as this Honourable Court deem reasonable.

8. By her response, the wife seeks the dismissal of the husband’s application and seeks a number of orders as follows:

   1.   That the Husband’s Application in a Case filed 4 September 2009 be dismissed.

   Injunctions to preserve former matrimonial home

   2.   That the husband be restrained and an injunction restraining the Husband from paying any creditor, and money owing by the Husband whilst the mortgage in favour of Westpac Bank secured over the property at [D] in the State of Queensland (hereafter “the [D property] Mortgage”) is in arrears and/or default.

   3.   That the Husband be compelled and an injunction is issued compelling the husband to:

   a.Immediately bring the [D property] mortgage up to date;

   b.Take all steps so as to remedy any default in relation to the said mortgage; and

   c.Make all payments owing under the mortgage as and when they fall due;

   d.Do all acts and things so as to ensure that there are no further defaults on the mortgage and that Husband complies with all obligations to pay money to Westpac Bank under the mortgage, on or prior to the date for payment as prescribed under the mortgage or otherwise advised by Westpac Bank.

   4.   That the Husband be restrained and an injunction is issued restraining the Husband from incurring any further borrowing with Westpac Bank or increasing his credit limit on any credit card or loan account that he has with Westpac Bank.

   Spousal Maintenance Arrears

   5.   That the Husband to the Wife pay in full, spousal maintenance in arrears, in the sum of $2,243.96.

   6.   That the Husband be restrained and an injunction is issued restraining the Husband from paying any creditor (other than any money owing to Westpac Bank under the [D property] mortgage), any money owed by the Husband whilst the Husband is in arrears in spousal maintenance and/or child support payments as prescribed by Orders of this Honourable Court and/or Child Support Agency.

   Child Support Departure 

   7. Further and in the alternative to 1, that pursuant to Division 4, Part 7 of the Child Support Assessment Act 1989, there be a departure from the administrative assessment of child support relating to the child […] born […] December 2004 for the period 10 march 2008 to 24 February 2009.

   8.   That the assessment for the period 4 March 2008 to 24 February 2009 be $17,680.00 per annum ($340.00 per week).

   Disclosure

   9.   That the husband be compelled and an injunction be issued compelling the Husband to provide to the Wife by way of disclosure all documentation from Westpac Bank within 48 hours of receipt of the said documentation.

   10. That the Husband be compelled, and an injunction issued compelling the Husband to provide all documents including correspondence and file notes relevant to negotiations with [F Group] or any previous or other employer for any lump sum payment, settlement amount, payment of benefit, termination payment, salary and/or employee entitlements or any other transaction between the Husband and any employer within 48 hours of receipt of the said documentation.

   Sale proceeds in the event of default

   11. In the event that Westpac Bank exercises its power ot sale in relation to the [D] property, any excess in sale proceeds from the sale after all costs owing under the [D property] mortgage are paid, the net proceed of sale thereafter be paid to the trust account if the Wife’s solicitors, Herbert Geer, upon their undertaking to hold the net proceeds and not deal with them in anyway without Order of the Court of the written consent of both the Husband and Wife.

   12. That the Husband pay the Wife’s costs of and incidental to his Application in a Case filed 4 September 2009.

   13. Any order or further order as this Honourable Court deems appropriate.

Disclosure

1. The parties can be in no doubt about their respective obligations to disclose all relevant documents and information within their power, possession and control.  Those obligations were clearly spelled out by me during the course of the current hearing and in earlier proceedings before me. 

2. Further, specific reference was made to the decisions of the Full Court in Weir and Weir (1993) FLC 92-338 and Black and Kellner (1992) FLC 92-287.The ramifications of failing to properly or adequately disclose were also spelled out clearly.

3. The parties agreed at the hearing before me that they would each provide to the other an authority addressed to their respective banks and other financial institutions, providing permission for those financial institutions to disclose to the other party all such information and documents as they might require with respect to the other’s financial affairs. 

4. I will order to that effect.

Interim Hearings and Procedural Issues

1. This application yet again raises the difficulties spelled out in my earlier reasons, which are not only applicable to this case, but also common to many cases of its type, where interim proceedings must proceed in circumstances where the court is unable to make findings in respect of contested matters that are properly the subject of evidence and determination after a trial. 

2. In that respect, it is necessary for me to repeat what I said in my earlier reasons of 30 July 2009:

   45.This case can be seen to embody many of the difficulties created for this court when relatively complex financial circumstances are involved and where the control of those financial circumstances have remained, historically, in the hands of one of the two marriage partners.

   46.Frequently, issues arise at a time when the state of the evidence and/or the state of the court’s lists mean that a trial cannot timeously take place.  Again, this is such a case.

   47.The court then, in respect of applications for interim orders pending any such trial, is left in the position of attempting to do justice but with any orders being confined to so much of the evidence as can confidently be relied upon pending a proper testing and analysis of all of the evidence.

   48.The problems thus created are all the more acute when (as is again the case here) one party asserts that the other party has failed to properly comply with the comprehensive ongoing duty to disclose borne by all litigants in this court.

   49.Here, the balance of the issues to be decided have, at their core, assertions and counter assertions about the husband’s financial position and resultant capacity to pay spousal maintenance, including meeting payments in respect of the former matrimonial home and a motor vehicle. Crucially, they are also relevant (see section 83 of the Family Law Act 1975 (Cth) to whether the current circumstances provides “just cause” for discharging the previous consent order of spousal maintenance or, alternatively, whether there has been a sufficient change in those circumstance so as to justify a reduction in its amount.

   50.So too, those same issues might be seen to be at the heart of the decision whether to order now a sale of the former matrimonial home and a division of the net proceeds of sale.

3. The husband sought an adjournment of the hearing of the substantive parts of the wife’s response.  The response was, apparently, served a day late.  The father said it was served immediately prior to him commencing a period of time with the parties’ child. 

4. Each of the parties had, I am pleased to say, prepared written submissions.  The father was in these proceedings, and has been in earlier proceedings before me, self represented.  I take that factor into account. However it was evident to me from the written submissions handed up by the husband that he had appropriately addressed those matters sought to be responded to by him which were raised by the wife in her response. 

5. Further, the husband indicated that, in substance, the prejudice asserted by him was an inability to reply to factual allegations there made.  This case is beset with a plethora of factual allegations.  An example of the factual disputes bedevilling this case was also given in my earlier reasons.  I said there:

   93.Significant factual disputes attend other aspects of the current proceedings.  For example, the husband relies upon his income protection insurance amount as providing his current weekly income.  However, the wife contends that income earned by the husband is in excess of that disclosed in his financial statements.

   94.The wife deposes for example, that, “the payslips disclosed by [the husband] reveal that he has received income of approximately $103,000 since 30 June 2008” which comprises mainly “$92,625.30 from the [F Group]” together with a lump sum payment $16,024 from income protection and weekly sums of $1335.37 since 4 February 2009.

   …

   98.Similarly, it is beyond doubt that the husband, even on his own evidence has had access to very significant sums of money.  Of course, he asserts that much, if not all of that money, has been used to pay down debt.  For example, at paragraph 88 of his affidavit filed 12.3.09, the husband deposes that he has reduced borrowings from $2,200,000 in December 2008 to about $503,000 as at 3 March 2009.

6. Many factual matters sought to be raised by the husband could not, in any event, be determined in these interim proceedings.

7. The position as to what will constitute the “property of the parties or either of them” within the meaning of 79 of the Act remains in doubt. 

8. So, too, the picture, with respect to moneys previously available to the husband, and what became of them, is, at this interim stage, both confusing and beyond the making of any findings in the instant proceedings.  As a specific example of that, the existence of debts in respect of which it might ultimately be contended, that both parties should, or should not be liable, or the treatment of those debts (as to which we see In The marriage ofBiltoft and Biltoft (1995) FLC 92-614; In The marriage of Af Petersons and AfPetersons (1981) FLC 91-081), is also very likely to be a live issue at the trial of the property proceedings.

9. A specific example of that is a debt said to be owing to a Mr ME.  A document forwarded (for unexplained reasons) direct to the court by Mr ME was marked as exhibit “W1” in the proceedings before me.  It appears to be in the form of a statement. 

10. I made reference in my earlier decision to the fact that borrowings were said to have been made, or to have been made available, to the husband from both his father and Mr ME but that “neither the husband’s father, nor Mr [ME], nor [the father’s] partner are deponents in these proceedings.”

11. The document from Mr ME sets out a number of factual matters relating to the alleged loan by him to the husband.  It also asserts that a “deed of acknowledgement and debt and charge” was entered into on 1 October 2009 (that is two working days prior to the proceedings before me).

12. The document had not been produced by the husband.  He told me during the course of the proceedings that he “had it with him” and that he had been away and had only just received it from Mr ME.

Orders Properly Left to the Trial

1. The confused factual position and inability to make findings in these interim proceedings presents, in my view, a significant difficulty to the orders sought by the husband at paragraphs 1 and 3 of his application. 

2. As I said during the course of the hearing, it seems to me that this matter is more properly a matter to be dealt with at trial, when the assertions and counter assertions as to the financial positions of the parties will, it seems, be a very live issue. 

3. Similar considerations apply, in my view, to the orders sought by the wife at paragraph 5 (and inferentially, paragraph 6) of the response filed by her. 

4. So, too, those same considerations apply to the orders (sought in the alternative) in respect of child support departure at paragraphs 7 and 8 of the response.

5. I decline to make each and all of those orders.

Preservation of Property – Mandatory Injunctions

1. The injunctive relief sought at paragraphs 2 and 4 of the wife’s response has, at its core, the preservation of the pool of property pending the finalisation of the section 79 proceedings.  The terms of that injunctive relief will be referred to in a moment. 

2. The orders sought at paragraph 3 of the response are, essentially, in the form of mandatory injunctions compelling the husband to bring the mortgage over the former matrimonial home up to date, to remedy any default in respect of the mortgage, and to pay all such payments under the mortgage as and when they fall due. 

1. It will be appreciated that, central to the determination of the application for those orders, are precisely the sorts of findings to which I have earlier referred. 

2. As a specific example, the wife alleges that, in a 25 week period, the husband incurred credit card expenses of $20,450 and, in an approximate six month period between February 2009 and August 2009, about $20,400 in withdrawals from a St George account in respect of which the wife alleges she has had “no information.”  As a further specific example, the wife alleges that the husband has purchased a diamond engagement ring for his de facto partner worth approximately $6400.  The husband says that this ring was bought via a gift from his mother for that amount because “she wanted to see [him] get on with making a new life.”

3. Again, I emphasise that these are but examples of the central factual disputes about the husband’s financial capacity which permeate most aspects of this case.  I said in relation to the claim for variation of maintenance in the proceedings earlier determined by me that the issue was “particularly clouded by the restrictions inherent in an interim determination and, again, highlights the matters that lie at the foundation of the decision of the Full Court In the Marriage of Redman (1987) 11 FamLR 411 earlier described.” 

4. I also said in my earlier judgment that:

   No evidence is presented as to any negotiations the husband has had with Westpac Bank in respect of alternative arrangements with respect to the current payment of $532 per week in respect of the $400,000 mortgage owing to that institution.In that respect, I note that the husband’s case, with respect to the dramatic reduction in debt, said to have been carried out by him, evidences no capital sum at all being directed to Westpac towards reducing the debt on the former matrimonial home.

5. Annexed to the husband’s affidavit in these current proceedings is a default notice, pursuant to section 84 of the Property Law Act, from Westpac.  That notice indicates an intention by Westpac to exercise its powers under the mortgage and the document refers to arrears of $7101.73. 

6. The husband says that his application, heard by me on 28 April 2009:

   …sought to pre-empt Westpac’s sale of the property.  I was then, and remain of the view, that an orderly sale of the property, rather than a forced sale by Westpac exercising their power of sale, would result in a better financial outcome and, hence, be in the best interests of the asset pool.  I note for the record that [the wife] refused to agree to the sale of the property.  That the facts in relation to my inability to meet the costs of the mortgage repayments are clear, and, hence, that any loss caused to the asset pool by Westpac’s sale of the property have been caused by her actions.

7. Again, many questions are begged by the assertions (and the wife’s counter assertions) in respect of the allegations there made. 

8. The wife asserts that the husband’s income is greater than the income protection insurance currently being received by him.  Whilst noting in my previous reasons that the husband has, even on his evidence, had access to very significant sums of money, I also noted there that the husband deposes that he has reduced borrowings from $2,200,000 in December 2008 to about $530,000 as at 3 March 2009.  In that respect it is to be noted that exhibit W1 reveals Mr ME saying that he:

   Advanced a loan of $500,000 to [the husband] on 10 October 2009 for the purpose of enabling [the husband] to meet margin calls during the recent financial crisis [plainly, the reference to 2009 is an error; it should be 2008]. Approximately $400,000 of the loan has been repaid by [the husband]. 

9. It is not said when that amount was repaid, but, plainly, a significant sum was apparently repaid to Mr ME in respect of the alleged loan from him in circumstances where the husband considered that he would have difficulties in meeting the mortgage payments over the home. 

10. The husband and his current partner live in a property in respect of which the husband was paying rent to his father.  The wife contended in the earlier proceedings before me that this payment was unreasonable. The affidavit of the husband, in respect of this arrangement with his father (who, it might be noted, had previously indicated a willingness to arrange a loan to the husband of $1 million) deposes:

    …the $130 that I pay to my father represents rent/board and that it is thus exactly the same amount as [the wife] proposes paying to her parents if she is obliged to live with them.  I am not subsidising the living expenses of [the husband’s partner].  It would not, I am sure, be [the husband’s partner’s] preference to be living with my entire family at the age of 35 years.  She is doing it so that we can be together.  I am paying my father a fair and reasonable subsidised rate of rent/board.  This is evidenced by the fact that [the wife] is proposing the exact same amount of board for staying at her parents place.  Assuming that her parents remain at […] (rather than […]) I state in a similar light, their place is also waterfront.

11. The husband in the proceedings before me indicated that he had stopped paying board/rent to his father by reason of his asserted parlous financial circumstances. 

12. Broad brush findings made by me in those earlier proceedings assessed the total expenses of the husband at $638, which was calculated in the manner described there.  I there indicated that I did not take into account the $532, being interest on the Westpac home loan, because there was no evidence before me that it was being paid.  If the $530, by way of mortgage payment, was paid in addition to the husband’s total reasonable expenses (again, assessed in a broad brush way) would see total expenses of about $1170 per week.

13. I said in those earlier reasons that I considered it favourable to the husband to adopt an income figure of $1030, but that is the figure I used. 

14. The wife asserts, in support of the order that the husband bring the mortgage up to date and to remedy any default, that if the husband can buy his current partner a diamond ring, valued in excess of $6000, then, he can find the money to bring the mortgage arrears of $7000 up to date. 

15. The husband says that the diamond ring purchase was facilitated by a gift from his mother, and that his mother is not prepared to forward money to him for the purpose of meeting the mortgage arrears and for payments (notwithstanding, apparently, that doing so might assist in continuing to provide a home for the wife and her granddaughter pending the parties’ property settlement).

16. There is no evidence advanced by the husband in respect of any negotiations had by him at the Westpac Bank in order to forestall the bank taking action pursuant to the mortgage which the exhibit to his affidavit indicates they intend taking.  The husband asserts in that respect that the bank’s position, with respect to the former matrimonial home, was always an inevitability - something foreshadowed by his earlier application. 

17. The resolution of that issue, again, must await the trial.  The evidence before me in respect of this interim application consists, relevantly, of the evidence of the husband.

18. That evidence is plainly to the effect that, whilst the husband’s father was prepared to countenance lending him up to $1 million on an earlier occasion, and his mother has apparently been prepared to gift to him about $6000 for the purchase of an engagement ring for his new partner, he is unable to have recourse to his parents for the purpose of either remedying the arrears in respect to the mortgage on the former matrimonial home, or to provide to the bank any comfort so as to forestall the action contemplated by it pending a settlement of property with the wife.

19. On an interim basis there is, in my view, insufficient evidence by which I can conclude that any orders sought by the wife would provide an enforceable remedy to the position with the mortgage. 

20. For example, there is insufficient evidence that the husband has access to funds so as to make the orders sought at paragraph 3 of the wife’s response. The wife’s parents are not parties; no relief is sought against them (nor, possibly, could be).

21. Of course it may very well be that some, or all, of the issues just described, and the resolution of them, are relevant to a number of matters within the process required of the court in determining a just and equitable order with respect to settlement of property. The matters prescribed to be taken into account by section 79(4)(e) of the Act might be an example.  But, again, that is a matter for trial. 

22. I decline, then, to make the orders sought at paragraph 3 of the wife’s response. 

23. I make it perfectly plain (given that the husband represents himself in these proceedings) that my declining to make an order is by no means the same thing as a finding by me that he ought not pay the mortgage as and when it falls due or to meet the arrears on the mortgage.  The finding (made, I repeat, on an interim basis with all that implies) says no more than that, on the current state of the evidence, it is not apparent that an order can be made in an enforceable form to facilitate the payment of the mortgage or the payment of any arrears.

Preservation of Property – Other Injunctions

1. The orders sought in paragraphs 2 and 4 of the response can be seen as an attempt to, as it were, preserve the financial status quo in circumstances where, as I earlier indicated, an order pursuant to section 79 is yet to be determined. Specifically, liabilities (or the responsibility for any liabilities) remains to be determined. 

2. Given the current hiatus in the resolution of the proceedings for settlement of property, it is necessary to balance the restrictions on the activities of the husband inherent in the orders with the potential for injustice to the wife if the orders are not made.  It seems to me that the balance favours an injunctive order being made of a type similar to that envisaged in the wife’s response. 

3. However, as a matter of principle, any such injunctive relief should be restricted to meeting the perceived injustice and, in that way, ought not be expressed in terms that are too wide. 

4. The relief sought is, in terms, so wide as to prevent, for example, the husband making payments to the finance company in respect of his motor vehicle and the minimum payments in respect of credit cards.  In the latter respect, the wife seeks, as I understand it, to take issue with at least some of the expenditure incurred on credit card by the husband.  Notwithstanding that concern, it seems to me that the injunctive relief sought should be confined so as to allow those payments to be made.

5. With that modification, I consider that the balance of convenience and the interests of justice favour the injunctive relief sought. 

6. After discussion between the husband, who represented himself, and Ms Minnery, who appeared on behalf of the wife in the hearing before me, it ultimately transpired that the husband was agreeable to the net proceeds of sale of the former matrimonial home, should that occur at the instigation of Westpac, being placed into a trust account in the names of both parties, to be invested pending further agreement between the parties or order of the court. 

7. The husband indicated a concern that, if that was to be the case, the solicitors for the wife could exercise a lien in respect of those moneys so as to preclude him receiving any entitlement that I might order in his favour from those funds. 

8. That issue was, as a matter of law, not explored. My tentative view is that the concern of the husband is misplaced, because the properties will be invested on trust in the names of both parties. 

9. However, in order to allay any concerns in respect of that, I will order that any such funds invested pursuant to this order not be subject to any lien on the part of the solicitors so as to affect any entitlement of the husband to any such sums, whether as agreed between the parties or ordered by the court. 

10. I will, however, otherwise order that the net proceeds of sale of the former matrimonial home, should same eventuate as a result of Westpac taking the action foreshadowed, be placed into a trust account in the joint names of the parties with Herbert Geer Solicitors to be invested in an appropriate investment chosen by them in consultation with the parties, and to be there held on behalf of both parties, subject to the parties reaching agreement and/or order of the court.

11. For those reasons, then, I make the orders earlier indicated.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  14 October 2009