HADFIELD & HADFIELD

[2014] FamCA 715

FAMILY COURT OF AUSTRALIA

HADFIELD & HADFIELD [2014] FamCA 715

FAMILY LAW – PROPERTY – Financial matter – interim issues – use of motor vehicle by wife – interim distribution of property – interim sale of former matrimonial home – valuation of assets agreed to be sold – pessimistic view of how many more issues parties will try to litigate on an interim basis – priority accorded for final hearing on conditions – private mediation

APPLICANT: Ms Hadfield

RESPONDENT: Mr Hadfield

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 341 of 2014

DATE DELIVERED: 7 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Crofts

SOLICITOR FOR THE APPLICANT: Leanne Cain & Associates

COUNSEL FOR THE RESPONDENT: Mr Henwood

SOLICITOR FOR THE RESPONDENT: Lake Street Lawyers

Orders

IT IS DIRECTED THAT:

1.This matter be placed in my docket list of cases as and from this day.

2.If it is not already the case, henceforth Registrar Sikiotis be the Docket Registrar for this matter and her assigned Case Coordinator be noted in the records of the Court as the Case Coordinator for this matter.

IT IS ORDERED THAT:

3.Subject to any further order by me, this matter be fixed for final hearing before me on 16 March 2015 estimated to take 5 days and the applicant pay the setting down and hearing fees as required.

4.This matter be listed for mention before me in Court at 9.00 am on 10 October 2014 to check for compliance by the parties with this Order and, in particular, the readiness of the matter for the valuation of the commercial interests by the single expert witness.

5.Until further order, the husband do all acts and things necessary to ensure that the BMW … motor vehicle (“the vehicle”) registered number …1 is available for the sole use of the wife as from the conclusion of Court this day and return to her the registration plates …2 within 7 days. The wife be, and is hereby, at liberty to take possession of the car keys which are on the Bar Table.

6.The husband pay or cause to be paid the cost of the lease affecting the motor vehicle, the registration and insurance on the said vehicle as and when such costs fall due.

7.The parties do all acts and things necessary to ensure that the monies currently standing to the credit of the parties in the Bendigo Bank Controlled Monies Account No. …42 are released for disbursment by the wife as follows:-

a)      Any outstanding tuition and educational expenses for the child K born … (“K”) at School B to exceed not more than $6,000 and, in the event that the fees and expenses are less than $6,000, the balance be retained by her and applied to end of year outgoings for ‘schoolies week’ or like celebration activities for K;

b)      The sum of $1,000 to C Valuers, … I Street, Town H or such other appropriately qualified person as the parties may agree upon and confirm in writing to value the former matrimonial home, such valuation to be undertaken not before 1 November 2014;

c)      The sum of $8,000 to the wife’s solicitors to be applied in payment on behalf of both parties of the reasonable costs of D Accountants to value the commercial interests of the parties for the purpose of this proceeding;

d)      The sum of $15,000 to the wife’s solicitors, such monies to be used for disbursements associated with conduct of the wife’s case and to include the sum of not less than $10,000 being paid to the forensic accountant retained by the wife in these proceedings; and

e)      The balance of $25,000 to the wife for her use.

8.The monies released pursuant to the abovementioned order be characterised by the trial judge at the final hearing.

9.Paragraph 2 of the Order made by Senior Registrar FizGibbon on 3 July 2014 continue in full force and effect until further order.

10.Paragraph 3 of the Order made by Senior Registrar FizGibbon on 3 July 2014 continue in full force and effect until further order.

11.The parties do all acts and things necessary to place the following real properties on the market for sale with Ms E of F Real Estate Agents, Town H being appointed as sole selling agent and the terms and conditions of such sales to be agreed between the husband and the wife or, in the absence of agreement, as ordered by the Court:-

a)      … G Street, Town H;

b)      … J Street, Town H; and

c)      … L Street, Town H.

12.The parties obtain from Ms E, as sole selling agent, her recommendations for an appropriate reserve price for each property and, in the event that there is no agreement between the husband and the wife as to the reserve price for any property I reserve liberty to apply to me for a determination of a reserve price. In the event that any party seeks such a determination each party file and serve any evidence by an appropriately qualified person in support of his or her case and ensure that any such experts have conferred prior to the matter being listed before me and have prepared a memorandum of the matters on which they agree and disagree in relation to the setting of a particular reserve price.

13.The parties do all acts and things necessary to ensure that, upon settlement of the sale of each real property the proceeds of sale be invested in an interest bearing account under the control of the husband and the wife, save that in any event that the land tax debt of $7,000 and interest thereon has not been paid by the time of settlement of sale of the G Street property the land tax be paid from the net proceeds of sale.

IT IS FURTHER ORDERED BY CONSENT THAT:

14.The parties do all acts and things necessary to cause the business known as M Pty Ltd, M 1 Pty Ltd and any other commercial interests of the husband and the wife, or either of them, and all companies and trusts which they control to be valued by Mr N of D Accountants AND IT IS NOTED that the parties’ estimate of Mr N’s fees for so doing will be approximately $8,000.

15.The parties each make available within 14 days of a request by the other in writing disclosure of all such records and documents as are reasonably set out in such request.

16.The husband forthwith make available or cause to be made available to the forensic accountant appointed by the wife, all documents and information required by the forensic accountant from time to time, and cooperate with any valuers nominated by the wife to permit access to relevant real estate properties, plant and equipment owned by the relevant corporate entities for the purposes of inspection and assessment.

17.The applicant wife disclose all particulars of furniture and other household chattels including antique furniture and antique collectables such as Item O sold by her and the amounts received by her and that this be treated as an add back to the matrimonial pool.

18.The husband, his servants and agents be and are hereby restrained from disposing, encumbering or further encumbering any property of the husband and the wife or any company or trust with which they are financially associated save in the ordinary course of business PROVIDED ALWAYS that what constitutes “in the ordinary course of business” does not include funds lent to Q Pty Ltd, Q 1 Pty Ltd or N Pty Ltd by M Pty Ltd and/or M 1 Pty Ltd.

19.The husband and wife by their servants and agents be and are each restrained from disposing encumbering or further encumbering any property in the matrimonial home or real property in the name of any company or trust which they are financially associated save in the ordinary course of business.

IT IS FURTHER ORDERED BY THE COURT THAT:

20.Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Riddiford or Sikiotis for the return of subpoena.

21.Each party file and serve an Undertaking as to Disclosure by not later than 1 October 2014.

22.In the event that the parties deliver specific questions to be responded to by the other party they be relieved from compliance with r. 13.26(3)(b) of the Family Law Rules with the effect that they may each ask more than 20 questions of the other.

23.There be liberty to the parties to apply generally and for that purpose to contact either Registrar Riddiford or Registrar Sikiotis – email … – to have the matter listed before me. In the event that either party does contact the registrar it will be deemed that they contact the registrar on behalf of each of them.

IT IS FURTHER ORDERED BY CONSENT THAT:

24.In respect of the private mediation which has been arranged by the parties on 30 January 2015 to be convened by Mr T Puckey of Counsel at 10.00 a.m.:-

a)      The parties do all acts and things necessary to require the mediator to contact my Associate, …, at the conclusion of the mediation, to advise if the matter is resolved in its entirety and:-

i.if the matter is resolved, the mediator specify the manner in which the parties seek to formalise the settlement and my Associate list the matter as appropriate; and

ii.in the event that the matter is not resolved the parties and their practitioners proceed to court for directions before me;

b)The parties do all acts and things necessary to ensure that at the private mediation he/she is represented by counsel who is to be retained to appear for him/her at the trial, being Mr Henwood for the husband and Mr Crofts for the wife;

c)I DIRECT that a sealed copy of this Order be forwarded to the mediator by my Associate under cover letter which draws his attention to the contents of this Order insofar as it pertains to the mediation;

25.I DIRECT that my Associate have the file to hand on 30 January 2015 in anticipation of being contacted by the mediator.

26.The parties do all acts and things necessary that any expert witness whose evidence is relevant to an asset in dispute is available to the mediator and the parties, at least by telephone, on the day of the mediation.

27.By way of compliance with Rule 19.04 of the Family Law Rules 2004 by not later than 12.00 noon on 27 January 2015, the practitioner for each party provide notice in writing to his/her client of:-

a)    the actual costs incurred by the client up to and including that date;

b)    any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

c)    the costs payable for the private mediation;

d)    the costs payable for each day of the trial, excluding the first day;

e)    the estimated length of the trial; and

f)     the date of payments made and the source of the funds for the costs paid or to be paid so that:-

i.if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

ii.if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and

iiiif costs have been paid in cash, the details must identify the payer.

28.That contemporaneously with compliance by the practitioner concerned with paragraph 27 of this Order, the practitioner provide to my Associate -  email … - a copy of the notification given to his/her client pursuant to paragraph 27 of this Order AND IT IS DIRECTED that my Associate send a copy of the notification to:-

a)      the mediator; and

b)      to the other party to the proceedings.

35.My reasons for decision this day be transcribed and when settled copies be made available to the parties.

36.In the event that this matter resolves prior to the hearing date, the solicitors for the parties notify my Associate promptly.

AND IT IS NOTED BY THE COURT

A.     That, in the event that a party fails to comply with their obligation to prepare the matter for the private mediation to which they have agreed , the orders made in relation to the private mediation and the final hearing date may be vacated.

B.     That Ms P drove the BMW vehicle referred to in paragraph 5 of this Order into the city at approximately 12.45 pm today and parked it near the Victoria Market at a location the husband could not identify precisely and it is not known what penalties or costs may be imposed or payable as a result of the vehicle being parked at that location until it can be located and collected by the wife after the conclusion of this hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hadfield & Hadfield has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 341 of 2014

Ms Hadfield

Applicant

And

Mr Hadfield

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me in the Judicial duty list and I’ve been asked to read a lot of documents, which I have read in order to determine the interim matters upon which the husband and wife cannot agree, being:-

   a)The wife’s use of a 2013 BMW motor vehicle;

   b)The wife’s application that $56,000 of invested funds be released for her use now;

   c)The husband’s application to sell the former matrimonial home; and

   d)The valuation of real properties which it is agreed will be sold.

2. It’s early in the party’s property proceedings.  They separated in 2012 after 7 years of marriage.  The history of part of that relationship has been rehearsed in reasons for decision given by Senior Registrar Fitzgibbon when he decided urgent interim spousal support on 3 July 2014.  I refer to and rely upon those facts.  Having regard to the learned Senior Registrar’s decision, this is the second interim hearing in the proceedings. Where I make a statement of fact it is based on what I was informed of from the Bar Table or it is in a document.

3. On 3 July 2014 the Senior Registrar made orders for the husband to make urgent financial provision for the wife and transferred into this list parts of the parties’ then application and response in relation to interim matters.  Since that time, each party has filed an amended application and response, but the issues relate to much the same things.

4. There is agreement as to the need to sell real estate which is property of Q Trust. Q Pty Ltd is the trustee of Q Trust.  The real properties are:-

   a)The improved real property in J Street, Town H.  It’s an industrial site previously occupied by the husband’s construction industry business.  It was acquired in approximately 2011 for $750,000 and is approximately 600 square metres in area.  The husband estimates that it’s now worth approximately $600,000.  It’s subject to a mortgage of $747,000, or thereabouts, for which the repayments are $8,000 per month.  The construction industry business, controlled by the husband, was the tenant of the property up until February 2014 when it moved to larger premises and now that property is vacant.  It is costing money and not producing income.

   b)Vacant land at L Street, Town H which was acquired in 2012 for $565,000, or thereabouts, and is subject to a mortgage of some $200,000 for which the monthly repayments are approximately $1400.  The husband estimates that it’s worth approximately $600,000.  It is not producing income either.

   c)The vacant land at G Street at Town H which was to be a development site, but probably won’t be now.  It was acquired in 2009 for approximately $230,000.  There are no monies owing in respect of it and it is encumbered.  The husband estimates that it is now worth approximately $400,000 and it does not generate income.

5. One of the issues that I will decide is whether those three properties ought to be valued by a single expert valuer prior to being listed for sale.  The wife says that the valuation would essentially inform the reserve price.  I am against the wife’s case that a valuation be undertaken.  It seems to me where money is scarce the parties can’t afford somewhere between $3,000 and $10,000 to value those commercial properties. The estate agent who it is agreed have conduct of the sale, being Ms E of F Real Estate Agents in Town H, can give a recommendation as to the reserve price. 

6. If one or both of the parties don’t agree with the estate agent’s assessment and seek that some other reserve price be set, then it will be necessary to return the matter to Court and to ask me to make a decision about that.  At that point, the parties will start expending funds on expert evidence. 

7. I should deal briefly with the entities, including Q Trust.  From the bar table, Mr Henwood for the husband has provided information based on his client’s instructions. 

8. Q Trust owns the three real properties as described above.  The trustee is Q Pty Ltd.  The husband is the sole director and secretary of that entity and the husband and the wife each own 50 per cent of the shares in the trustee company.  The trustee company does nothing other than act as corporate trustee for Q Trust.  The husband expects that he is the appointor of the trust.

9. The Hadfield Family Trust owns a number of commercial vehicles for the husband’s construction industry business, including three trucks, two utilities, two vans, the BMW which was driven by the wife until recent times and a five year old Commodore motor vehicle. 

10. The trustee of the Hadfield Family Trust is N Pty Ltd, an entity of which the husband is the sole director and secretary. The parties each own 50 per cent of the shares.  N Pty Ltd does nothing other than act as the corporate trustee of the Hadfield Family Trust.  The husband understands that he is the appointor of the Hadfield Family Trust. 

11. There is Q 2 Pty Ltd, which imports specific construction industry items and materials from China.  The husband is the sole shareholder of that entity.  He is the sole director and secretary. It is purely a trading company.

12. M Pty Ltd is an entity in which the husband owns all of the shares, is the sole director and secretary.  Similarly, it is solely a trading company and it operates the installation part of the husband’s construction industry business. 

RECORDED  :  NOT TRANSCRIBED

1. M 1 Pty Ltd is an entity of which the husband is the sole director and the parties each hold one half of the issued shares.  It is solely a trading company and is the retail side of the construction industry business.

2. The former matrimonial home is located at R Street, Town H. It is a large property constructed by the parties some 10 or 12 years ago, and the Senior Registrar refers to it as being 100 square metres.  The husband estimates that the current market value is between $800,000 and $900,000.  It is currently subject to mortgages with ANZ Banking Corporation Limited securing indebtedness of $309,000 and the payments in respect of those mortgages is something in the vicinity of $490 per week. 

3. The husband lives with his partner, Ms P, who until recently has been in receipt of an income of $55,000 per annum.  They live in a property for which he pays $480 per week in Suburb S.  He says it is a modest little dwelling. Ms P is pregnant with the husband’s child.

4. There is Q 1 Pty Ltd.  That is an entity of which the husband owns all the shares and is the sole director and secretary.  The husband describes through his counsel that it is a dormant entity which is set up to handle income or prosperity attracted by Q Trust but at the moment it’s not doing anything.

5. Having done extensive reading in the matter and heard evidence and submissions I am satisfied that this is a case which could easily spin out of control to the detriment of the parties and in a way which is likely to result in multiple interim hearings, if not appropriately managed.

1. There have been events in the last month or so, and as recently as in the last 24 hours, for which counsel for the wife is critical of the husband’s behaviour.  There is merit in that criticism.  The husband has acted in several respects in relation to motor vehicles in a way that could be described as disregarding of the wife on the one hand, or ‘punitive’ and vindictive on the other hand. I will deal with the car issue later in these reasons.

2. The husband says that his family business has operated with some prosperity over the years, but it has now fallen on hard times.  The husband says that the wife’s expectations and expenditure belong in the good times and can’t now be sustained.  He says that the wife will have to do without the BMW he bought her last year, the former matrimonial home should be sold and, if he cannot take the measures he wants, the business which has supported the family to date, will fold.

3. In February of this year, the husband’s business moved out of premises which it owned and on which it could allocate rent to alternative premises for which it now pays $16,000 per month in addition to the $8,000 per month it still has to pay on the J Street property which lies vacant.  There is also the fact that in 2002, the Q Trust acquired vacant land at L Street and has been carrying a mortgage of some $1,400 per month since then with no return. These matters did not seem to figure in the husband’s appreciation of the situation to the same degree as the wife’s car and the home.

4. The husband was required to file any documents upon which he relied by 4 pm on 23 July 2014.  The husband failed or neglected to do so without any explanation, save for paragraph 8 of the husband’s affidavit sworn on 5 August 2014, in which he deposed:

   I further state I was not able to file amended financial documents and supply financial documents until by (sic) the order date as I was advised by my accountant that there has been an error with bookkeeping records which have had to be corrected and a specialist bookkeeper was brought in by my accountant to assist with same.  Following, I have only obtained the financial documents on 5 August 2014.

   This does not adequately explain why the balance of the husband’s material wasn’t filed and served by the date required being 24 July 2014.

5. On 5 August 2014, the husband swore three affidavits and a statement of financial circumstances and filed an amended response.  Interestingly, none of the three affidavits respond to the wife’s material which was filed within time on 23 July 2014; that is, two weeks previously. 

6. To the extent that the husband now relies on a spreadsheet prepared by his accountants, that evidence was not provided to the other side. The wife’s practitioners obtained a copy of the husband’s recent documents from the court’s portal late on the evening of 5 August 2014.  It is trite to say if the husband was genuinely endeavouring to put material before the court which could satisfy the wife, and indeed the court, of a huge downturn in the financial fortunes or massive inaccuracies in reporting on the performance of his business, he could have filed his material within time by 4 pm on 23 July 2014.  That would have given the wife’s practitioners some time to verify and investigate what he said.  He could also have sent the basic material to the wife in advance of filing it with the court and leaving to them to retrieve documents for themselves from the Court’s portal.

7. I will discuss some of the events in relation to the motor vehicles.

8. The parties separated in 2012.  In 2013 the husband traded in the wife’s then BMW convertible motor vehicle for a 2013 BMW for which the lease payments are some $1950 per month and the amount outstanding is in the vicinity of $93,000 or $94,000.  The lease is in the name of the company, N Pty Ltd ATF the Hadfield Family Trust.  Earlier this year the husband made known to the wife that, in his view, his business could not continue to fund that vehicle.  He was driving a Range Rover which had been acquired five years earlier and which he subsequently sold for $43,500.  The wife said that she wanted to retain the 2013 BMW vehicle.  The husband unilaterally and without warning to the wife entered the grounds of the former matrimonial home early one morning and removed the BMW using a spare set of keys in his possession to do so.

9. The husband took the BMW and thereafter his solicitors corresponded with the wife’s solicitors, pointing out that the vehicle had been sold.  In particular by a letter dated 18 March 2014 and, interestingly, marked without prejudice, they wrote:

   Our client instructs that the motor vehicle was a company motor vehicle which he could not afford to pay for any longer and as communicated to you previously, and which has been sold.

10. At the same time, the wife was advised that the husband had removed her from the family cover health insurance. In fact, the car was not sold.  It was being driven by the husband. 

11. When the matter commenced before me, I queried why there was reference to “new number plates on the motor vehicle”.  The vehicle when driven by the wife had been registered as …2 .  But when the matter commenced before me, it was registered as …1 .  An explanation provided by counsel for the husband, on instructions which he obtained in court, was that his client did not want to drive a vehicle that bore number plates he associated with the wife, so he had the wife’s “personalised number plates removed” and purchased new number plates for the car.

12. The husband commenced this interim hearing saying that there was no other car that he could drive except the 2013 BMW and the wife could use a car which the parties had purchased for their son K about six months ago.  Indeed, when the husband took the BMW from the former matrimonial home, the wife did start to use K’s car.  K is not yet 18 years old and so he is not licensed to drive. 

13. The wife deposes that subsequently she inadvertently lost the keys to K’s car, by throwing them into the rubbish bin. When she approached the husband to ask if she could use his spare set of keys for K’s car, the husband refused.  Thereafter, the husband attended the former matrimonial home and removed K’s car and retained it for what his counsel says was two days and what the wife says was the period until she paid the husband all of the cost of copying keys, which was $400. 

14. On 22 July 2014, the husband wrote to K in the following terms:-

(Text 3.14 pm) Hey mate if you want to stay at school you better start having a go at your mum as she won’t pay half your fees.

Hows your cold going

Any better

(Text 4.09 pm) [K] we cut the new key but until your mum agrees to pay for it I’m not giving it back to her

I will lock it up safely at work

Hey [K] do you want to come and live with me

1. While the husband had removed the 2013 BMW and would not hand over the keys to “[K’s] car” the wife had no car to drive.  This is a concern seeing she lives in Town H with K and with the parties’ older daughter. 

2. When the proceedings commenced before me yesterday I heard about the condition of K’s car and his assertion that it was perfectly driveable and a suitable vehicle for the wife.  I suggested that the husband could use that vehicle himself and return the BMW to the wife.  I suggested that it would probably be prudent that he drive to the court in the BMW today and park it in the city. 

3. When the matter commenced before me at 11 o’clock this morning counsel for the husband said that the BMW wasn’t in the city.  In fact, it was no longer the property of the husband or the husband’s company.  Counsel for the husband informed the court that his client “had sold it last night”. 

4. The husband gave some sworn evidence, a transcript of which will be ordered.  The husband’s evidence was that last night he sold the vehicle to his girlfriend, Ms P, for $85,000.  The husband thought that this was “a good deal” because last weekend he had gone to various dealers and been told by both the BMW and Range Rover dealerships that the market value for that vehicle was only $68,000. Ms P agreed to pay $85,000 whereupon the husband says that he gave her “a receipt”. 

5. When asked what moneys the husband received for the receipt he said “none”.  Ms P has not given him any money.  In fact, Ms P doesn’t even have $85,000.  The husband’s evidence was that Ms P will get the money from a combination of her savings and her family, but no money has yet changed hands. 

6. During the course of the day Ms P drove the vehicle into the city and one set of keys are now in court.  The wife has some other keys at home for the vehicle. 

7. As part of the submissions in relation to whether or not the wife should have use of the BMW motor vehicle now, counsel for the husband says that the husband proposes the wife use another vehicle which is a five year old Commodore owned by the company.  I will not require the wife to take the old Commodore at this stage but it is fortunate that the vehicle can now be driven by him. 

8. The husband did not show himself in a good light over the wife’s car. Hopefully there will be no similar behaviour in the future. It is early days in the proceedings.

9. The next matter that I have to decide is the wife’s application to have paid out to her moneys in the sum of $56,000 which are currently held by her solicitors.  In 2013 the husband sold real property at T Street in Town H, and some of the net proceeds of sale were preserved in an interest bearing account, and now $56,000 of those moneys remain.  The husband’s case is that that $56,000 should be preserved.  If it is not to be preserved it should be applied in reduction of indebtedness to Q Pty Ltd (as trustee for the Q Trust), in particular, against the mortgages over the properties at J Street and L Street or if not in reduction of the capital owing under the mortgages then to satisfy the monthly repayments.  He also says that $7,000 of those moneys can be paid in satisfaction of a land tax bill which was raised in December 2013 and which is attracting interest. 

10. That land tax bill wasn’t raised at the time that settlement of the sale of the T Street properties occurred. 

11. The wife seeks that the $56,000 be paid to her or to her solicitors. 

12. There is no contest that the moneys represent an amount which is no more than the wife could be entitled to by way of a final alteration of property interests.  I must be satisfied that it is just and equitable to make an order and, if I am, make an order which is proper.

13. I am satisfied that the moneys should go to the wife and not to the husband.  They should be applied by the wife partly to get her case ready for final hearing because this case needs a final hearing and, secondly, to augment some of her living expenses between now and a final hearing. 

14. From the $56,000 there should now be paid approximately $6,000 to K’s school which would see out the school fees for this last VCE year of his education.  If not all of those $6,000 are required the wife should hold back the difference and apply it to things such as K’s “schoolies week” and end of year celebrations. 

15. A further $1,000 can go to obtain a valuation of the former matrimonial home by a company called C Valuers. Then $8,000 can go to pay for a single expert report to be done by D Accountants in relation to the construction industry businesses and the related entities.  That should leave about $40,000 of which it seems to me $15,000 can be retained by the wife’s solicitors and applied to disbursements.  Amongst those disbursements there must be a significant amount (which I calculated about $10,000), applied to an investigative accountant.  It is not appropriate that the wife take this portion of the moneys and then apply it in anything other than the preparation of her case for a final hearing and she should prioritise payment of disbursements so she has evidence to support her case.

16. The significance of paying the investigative accountant now is that, obviously, the assertions by the husband in his most recent material should be tested before D Accountants commences the valuation of the construction industry business and related entities. 

17. I am aware that the application of the funds referred to above does not leave the wife’s solicitors with any moneys on account of their outstanding professional fees which have been invoiced and billed and which are owing or, necessarily, counsel’s fees. If it is not feasible for those solicitors to continue acting for the wife then they should cease to act so that the wife can either represent herself or find someone who is prepared to wait for payment of their fees or most of their fees until the proceedings are concluded. 

18. There should then remain about $25,000 which, in my view, is appropriate to be paid to the wife to defray some of her living costs between now and a final hearing.  Notwithstanding this provision, I will be continuing the orders made by the Senior Registrar on 3 July 2014. I am satisfied that the wife is unable to support herself adequately and that it is proper to continue the payments ordered by the Senior Registrar as an interim spousal maintenance order into the future. That requires payment of the outgoings in relation to the former matrimonial home including electricity, gas and water bills, and the sum of $250 per week to the wife.  It is also based on the fact that the husband must pay child support as assessed.  If he has previously said that he has paid the son in lieu of paying the Child Support Agency or the wife that does not count as child support.  Payments he chooses to make to the son are not child support, and he should make good any such arrears. 

19. The next issue is the car.  I’ve already dealt with the history of the car to demonstrate how this case has occupied too much Court time to date and why it should be managed.  The wife’s counsel estimates it would have cost the husband some $500 or so to change over the number plates.  I don’t know.  Interestingly the husband hasn’t said how much it cost.  If the wife’s registration plates are not in the motor vehicle which I understand has now been delivered into the city, arrangements should be made by the husband to take those plates to the offices of the wife’s solicitors within the next week. 

20. The test for use of the vehicle is a balance of convenience. The lease on the vehicle is some $1,950 per month.  In spite of having purchased the car post separation the husband says that the lease payments are beyond the capacity of the company to pay. This does not preclude the wife getting the vehicle back to use.  It does indicate that, at some point, the parties should turn their mind to replacing that motor vehicle with a vehicle with a less expensive lease or a less expensive outlay. 

21. The husband says that there is the five year old Commodore vehicle that the wife could use instead of the BMW.  There are two things that indicate to me that that is not a wise choice.  The first is that it didn’t occur to the husband that he could use the vehicle when he said repeatedly that there was no vehicle other than the BMW that he could use.  There’s probably some reason why it didn’t spring to mind. Second, the husband can now, of course, use the Commodore.  His partner is about to have a baby, and unless she continues to want to buy a prestige motor vehicle she might find herself without a car. The husband may lend the Commodore to Ms P.  Alternatively, if Ms P still wants to acquire a luxury vehicle (and has the means to do so) she can let the husband use that luxury vehicle as well as him using the Commodore belonging to the company.

22. Mr Henwood for the husband posed a rhetorical question which was, why will the wife agree to relinquish her possession of the late model BMW vehicle in favour of the lesser car? The answer is because that will involve the family in less recurrent expense. In the event that the wife does not accept a plausible and reasonable proposal to replace her vehicle with a cheaper lease or other option, the matter should return to me and I will decide.  There has been discussion between me and counsel for the wife around a vehicle of $20,000 or $25,000 in value, perhaps, a locally made or locally badged vehicle, but a late model or a recent model vehicle.  Anyway, I am satisfied that it is appropriate that the wife is to have the use of the BMW, until further order.  The husband is to maintain the car lease repayments in respect of it and registration costs and insurance.

23. I am not dealing with any rights that might accrue to Ms P, the husband’s partner, arising out of whatever transaction they might have entered into last night.  It doesn’t sound to me as if that transaction amounted to a sale of the vehicle.  There was neither an exchange of money nor the signing of any memorandum.  If Ms P wants to take action, she can become a party to these proceedings.  I will not expressly reserve liberty to her to apply or set aside these orders but I am indicating that she can take whatever action she likes by becoming a party to these proceedings and, in the meantime, the car will be in the wife’s possession.

24. It is not necessary for me to restrain the wife from disposing of the motor vehicle because she does not own it.  In fact, neither does the husband.  It is under lease to the company which is the trustee of the family trust.

25. The next issue is selling the former matrimonial home.  The husband seeks an immediate sale of the home and that the proceeds of sale be dispersed in payment of encumbrances and can then be applied to business liabilities.  The wife opposes the sale of the former matrimonial home.  It is fair to say that she does not claim that she will be entitled to retain the former matrimonial home as part of any final alteration of property interests, but it may not be impossible that she could do so based on what information I have been given.

26. The mortgage on the home is $490 a week or the equivalent. The husband and his partner live in a very modest house in Suburb S for $480 per week.  I fail to see how the wife and the adult child in her care, who is about to have a baby, and the parties’ 17 year old son K could be accommodated in rental premises for less than the mortgage of $490 per week.  And the parties would in any event have to find the cost of moving, storage, bond and the like.

27. The former matrimonial home was built 12 years ago and has been occupied by the family.  K is doing his VCE year and, in my view, should not be disturbed if there is a choice.  I have provided the parties with an assurance that I will hear this matter early next year so, providing that they keep to the timetable we have discussed, there is an end in sight.

28. In relation to the valuation of the former matrimonial home, the husband sought that the valuer be Mr U from a firm specified.  The wife sought that it be Mr V.  It seems easier to me to pick someone to whom neither of the parties have any objection. I am informed that C Valuers will do the job for approximately $1,000. I will make orders facilitating a valuation by C Valuers.

29. I am against the husband’s application that the land tax be paid from the moneys ($56,000) which the wife is to retain.  The husband should pay that land tax as soon as he can, but he shouldn’t be paying it in preference to supporting K by way of child support, or the wife pursuant to this Order or the orders of the Senior Registrar.

30. I will reserve the costs of the parties.  I will make by consent the orders which they indicate they are in agreement about, and I will also make some orders which will get the matter ready for trial.

31. The hearing date has changed now to 16 March 2015.  There will be the usual mediation order, please, to be convened by Mr Puckey. 

32. I should say something about allocating 16 March 2015 as a final hearing and having decided to accord this case priority.  The proceedings were commenced on 4 June this year.  Since then, it has had two interim hearings which have consumed considerable time, first, before the Senior Registrar and second, before me.  There has been no conciliation conference but the husband and wife, through their counsel, have committed themselves to attend a structured mediation with Mr Puckey, of Counsel, a few weeks prior to the final hearing on the basis that all expert evidence will have been finalised by then. 

1. The parties are advantaged by jumping the queue by about ten months.  It follows that other cases which are awaiting hearing have been disadvantaged because this case has pushed in ahead of them.  I have accorded the matter priority for a number of reasons. 

2. First and foremost, it has occupied a disproportionate amount of this Court’s capacity to deal with urgent applications.  Based on the way the parties and their counsel have bobbed up and down with new issues, some trivial, some important, but all capable of adjustment between the parties on reasonable and sensible terms – and none of which has been adjusted – I expect that there could be many more interim applications.  Even if the interim applications are misconceived they are going to take time to dispose of and will clog the Judicial Duty List and the Senior Registrar’s List thereby depriving cases which genuinely require time from an early adjudication. 

3. This case should be managed by a judge and if I have to manage it, I might as well hear it. 

4. Second, the parties’ assets include a small business which supports not only the family but employees.  The husband says that the business is about “to fold” because it cannot be sustained through changed financial conditions which, he says, he has just discovered had been concealed by inept or incorrect accounting.  The husband offers his own conclusions about the incorrect accounts but no primary source material.  The husband may be correct. In any event, valuations undertaken of the business must not go stale. 

5. Third, the husband has displayed self-defeating behaviour in the past few days, in relation to the BMW car. Hopefully behaviour of that nature is behind us. It is not in anyone’s interests for the husband to act erratically in relation to the business.  In the interests of preserving the family’s wealth by dividing it up as soon as possible, I have given the parties an opportunity for a very early hearing. I will hear the case in March 2015 if (and only if) I am satisfied that the parties are ready for a mediation with Mr Puckey (as chosen by them) in January 2015.  If they fail to be ready for the mediation, I will vacate the hearing I have allocated and the proceedings can join the queue of cases awaiting hearing without the benefit of any priority.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Justice Bennett delivered on 7 August 2014.

Associate: 

Date:  2 September 2014