HAINES & WILLIS

[2013] FamCA 1033

FAMILY COURT OF AUSTRALIA

HAINES & WILLIS [2013] FamCA 1033

FAMILY LAW – INTERIM PROPERTY SETTLEMENT– where interim part property settlement sought by husband – whether it is appropriate to exercise court’s power on an interim basis – just and equitable to make interim property settlement in favour of the husband – interim property settlement in the sum of $3 million granted.

FAMILY LAW – INTERIM SALE OF PROPERTY – whether relevant source of power is under s 79 or for injunctive relief under s 114(e) – wife’s interim application seeking sale of real property refused.

Family Law Act 1975 (Cth) ss 79, 75(2), 80(1)(h), 114(3)

Bevan and Bevan [2013] FamCAFC 116
Stanford v Stanford [2012] HCA 52
Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466

APPLICANT: Mr Haines

RESPONDENT: Mr Willis

FILE NUMBER: MLC 3646 of 2013

DATE DELIVERED: 23 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 14 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfeld QC with Ms Vohra

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Geddes QC with Mr Dickson

SOLICITOR FOR THE RESPONDENT: Marshalls & Dent

Orders

1. That the parties do all acts and things necessary for the husband to be paid by way of a further interim property settlement the sum of $2.5 million from the proceeds of sale of the property at B Street, Suburb C (“C Property”), which proceeds are held in trust on behalf of the parties by D Lawyers, and such sum be deemed to be the property of the husband at the final trial or upon the making of final orders, irrespective of how it is applied, or whether it is still in the husband’s possession or control at the date of the trial or the making of final orders and regardless of whether it has increased or decreased in value.

2. That the husband’s application for an interim property order, being paragraph 7 of the Orders Sought in his Amended Application in a Case filed 30 September 2013 and the wife’s application for a sale of the F Town property, being paragraph 3 of the Orders Sought in the wife’s Response to an Application in a Case filed 1 November 2013, be otherwise dismissed.

3. That subject to the discretion of the trial judge, paragraphs 4, 5, 6, 7 and 8 of the Orders Sought in the wife’s Response to the husband’s Amended Application in a Case filed 1 November 2013 be consolidated with and heard at the same time as the relief sought by the wife at the final hearing of this matter.

4. That the balance of the husband’s Amended Application in a Case filed

   
   

   30 September 2013 and the wife’s Response filed 1 November 2013 be dismissed save as to costs.

5. I certify that this was a matter in which it was reasonable to engage counsel including Queen’s Counsel to appear.

AND THE COURT NOTES THAT:

A.On 14 November 2013, orders were made by consent between the parties for the husband to forthwith receive the sum of $500,000 from the net proceeds of sale of C Property, currently held at call with D Lawyers.  The parties agreed that this sum shall be deemed to be the husband’s property at final trial or upon the making of final orders, irrespective of how it is applied, or whether it is still in his possession or control at the date of trial or the making of final orders, and regardless of whether it has increased or decreased.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haines & Willis 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 3646 of 2013

Mr Haines

Applicant

And

Mr Willis

Respondent

REASONS FOR JUDGMENT

1. This is an interim application made by the husband[1], who seeks a payment of $3 million from the proceeds of sale of the parties’ former matrimonial home in Suburb C known as ‘C Property’ by way of part property settlement.  The proceeds from which the husband proposes that the payment be made amount to $13,020,135 and are currently held on trust for the parties by D Lawyers.

   [1] Amended Application in a Case filed on 30 September 2013.

2. The wife concedes payment of $500,000 to the husband by way of part property settlement from the monies held in trust but opposes any further payment.

3. At the conclusion of the hearing, the parties sought an order, by consent, that the husband receive $500,000 by way of a partial property settlement.  I made an order in those terms.  Accordingly, whilst the case was conducted on the basis of the husband seeking $3 million, any further payment to the husband on his Amended Application in a Case is limited to $2.5 million. 

4. In her Response filed 1 November 2013 to the husband’s Amended Application, the wife seeks that the husband, in his capacity as director of E Pty Ltd as trustee for the Haines Trust, do all things to place the property at F Town on the market for sale.  She also seeks:

   ·to have the conduct of the sale, including as to the appointment of agent;

   ·that the husband vacate the F Town property within 14 days;

   ·that pending the sale of the property it be made available as a rental property; and

   ·that the proceeds of the sale be received and held by D Lawyers in an interest-bearing account and not be dispersed without the written consent of the parties, or order of the Court.

5. The husband opposes the sale of the property at F Town and/or that it be placed on the market for rent.

6. A number of other applications were made by each party which were resolved during the hearing so that the only matters requiring determination are those to which I have referred.

7. The matter proceeded by way of submissions including the husband’s written submissions in his Outline of case.

8. Neither party sought to cross-examine the other party or any witness.

9. An Initiating Application for final property settlement was filed by the wife on 9 May 2013.  This matter has been listed for a first day hearing on 7 March 2014.

Background

1. The parties were married in 1992 and separated on or about 31 January 2013.  The husband is aged 41 years and the wife is aged 47 years.  C Property was the former matrimonial home which was on the market for sale when the parties purchased another matrimonial home at

   
   

   G Street, Suburb H (“the Suburb H property”).  The parties separated on or about 31 January 2013, just after the settlement of the purchase of the Suburb H property.

2. The parties have two sons aged 16 and 19 years, who both reside with the husband in the Suburb H property.  In 2014, the eldest son will commence Tertiary study and the youngest son will begin Year 12.

3. The husband is a company director of numerous companies.  He is a director and shareholder of I Pty Ltd, E Pty Ltd, J Pty Ltd, K Pty Ltd, and L Pty Ltd and the appointer and beneficiary of a number of trusts.  He is the joint director and shareholder of M Pty Ltd, M Tel Pty. Ltd, N Pty Ltd, E Pty Ltd, O Pty Ltd, P Pty Ltd, Q International Pty Ltd, and Q Pty Ltd.

4. The wife is engaged in home duties.  In February 2013, she told the children that she had a new partner.  She is now pregnant to her new partner.

5. The parties’ proceeds from the sale of another parcel of land in Suburb C were used to purchase the Suburb H property, which is unencumbered. 

6. The husband has been funding and completing renovations of the Suburb H property through his Company, E Pty Ltd.

7. The property interests of the parties include a number of other real properties which are used by them.

8. On 4 June 2013, Cronin J made an order, by consent, that the wife receive $300,000 from the deposit paid for C Property, with the categorisation of that payment to be made at trial.  Pursuant to that order, the wife also received a further $5.7 million as a part property settlement from the proceeds of the sale of C Property.

9. The wife resides at R Street, Suburb C, which is a property that she purchased with the proceeds of her part property settlement.  This property is unencumbered.  She deposed that she resides at that address alone, but in her affidavit sworn and filed on 1 November 2013 she deposed to having entered into a de facto relationship.  The wife has not provided any financial details as to her de facto partner or the circumstances of the relationship save as to say that her partner is currently studying nursing and works on a part time basis at a nursing home.[2]  The wife has invested the balance of that part property settlement, which is $1.2 million in a term deposit.

   [2] The wife’s affidavit sworn 1 November 2013 at paragraph 25.

Relevant Law on partial or interim property settlement

1. Section 79 of the Family Law Act 1975 (Cth) (“the Act”) provides for the alteration of property interests between the parties to a marriage. It is preferable that there be one final hearing of s 79 proceedings at which all relevant evidence and factors are taken into account. In this case, the husband seeks an order which, if made, would require the Court to exercise its power under s 79 on an interim basis pursuant to s 80(1)(h) which provides that the Court, in exercising its powers under Part VIII may make a permanent order, an order pending disposal of proceedings or an interim order.

2. In Strahan and Strahan (Interim Property Orders) [2009] FamCAFC 116 (“Strahan”), Boland and O’Ryan JJ (with whom Thackray J agreed) described a two-step approach.  Firstly the Court must identify circumstances that make it appropriate to give consideration to exercising its power to make an interim order.[3] Once the Court has determined that the interests of justice require it to exercise the power, the conditions on which the power is to be exercised are governed only by the obligation to make an order that is “appropriate” and to ensure that the proposed order is “just and equitable” by reference to the matters set out in s 79(4) of the Act.

   [3] This requires the court to have regard to the policy consideration that it is generally in the interest of parties and the court for there to be only one exercise of the s 79 power.

3. The first step, described as the adjectival or procedural step[4], is a determination of whether it is just and equitable to make a property order at an interim stage.  At paragraph 132, their Honours stated:

   In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

   [4] See paragraphs 115-118 of the decision in Strahan.

4. The second step, which is described as the substantive step, requires the court to take into account the factors under s 79, 75(2) and s 80(1)(h) of the Act. At paragraph 135 of Strahan, their Honours observed:

   In relation to the second matter, as the jurisdiction under s 79 of the Act is being exercised the provisions of that section must be considered and applied but with limitations given that it is not the final hearing. There is also no requirement of compelling circumstances in relation to the substantive step.

   And at paragraph 137, their Honour’s stated:

   Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that … the applicant … will be likely receive by way of property settlement a sum sufficient to cover the advance”, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought … then that should be the end of the matter”.  In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.

5. In Bevan and Bevan [2013] FamCAFC 116 at paragraph 73, the Full Court of the Family Court referred to the three “fundamental propositions” laid down by the High Court in Stanford v Stanford [2012] HCA 52 which should guide trial judges in approaching the task under s 79. They were summarised as follows:

   i)Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);

   ii)The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties interests in the property are or should be different from those determined by common law and equity;

   iii)A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.

6. I apply the above principles to the determination of the husband’s application for an interim property settlement.

Application of the law to the husband’s application

1. As indicated, the wife concedes that there should be an interim property order in favour of the husband but disputes the quantum of the payment.  It is implicit in the submissions of the parties that they regard an interim distribution of property to the husband as appropriate.

2. The wife has already received a significant amount by way of interim part property settlement, albeit by consent.  A judicial determination on a final basis will not be available to the parties in the immediate future, as the matter has only recently been listed for a first day hearing on

   
   

   7 March 2014.

3. The husband has specified in general terms the purposes for which he will apply the funds he seeks.  The husband deposed at paragraphs 53 and 72 of his affidavit filed 30 September 2013 that since separation, he has been denied access to the remaining capital from the sale of C Property.  He deposed that he requires $3 million to assist with cash reserves, to supplement and meet the children’s and his own ongoing expenditure, the upkeep and maintenance of the properties at F Town, S Town and T Town, and his primary residence in Suburb H.  He also referred to his legal and accounting costs estimated at $200,000.

4. It was submitted on behalf of the husband that it is appropriate to make an interim order because of the manner in which the parties lived and organised their affairs prior to separation.  In particular, that they generated capital rather than regular income and then applied capital to meet their recurrent expenses. 

5. The wife takes issue with some of the husband’s expenses, the recurrent nature or quantum of those expenses and seeks evidence in addition to what the husband has deposed to, such as a need for the husband to meet litigation costs.  However, there is enough common ground in the parties’ affidavit evidence and the submissions of counsel for me to be satisfied that the family has enjoyed a high standard of living, involving the use and upkeep of luxurious properties, and that the expenses associated with the properties and various expensive recreational pursuits of the children have been met out of capital.

6. In any event, I am satisfied that the matters raised by the wife are matters which can be pursued in the context of a final hearing, if need be, without prejudice to her final position.

7. I am satisfied that the husband’s application for an interim order has a legitimate basis and that the husband’s application is bona fide. I accept that it is appropriate and in the interests of justice for the court to exercise the power under s 79 to order a payment of funds to the husband by way of a partial or interim property settlement notwithstanding that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

8. Having decided that it is appropriate to exercise the power, the substantive phase to be considered is whether the interim property settlement proposed by the husband is just and equitable within the meaning of

   
   

   s 79(2) after consideration of the matters in s 79(4) including, by reference to s 79(4)(e), the matters in s 75(2) so far as they are relevant.

9. This is a relatively long marriage and it is common ground that the parties have interests in property in the order of at least $36 million.

10. The wife disputes some aspects of the initial financial contributions alleged by the husband but the fact that the husband made considerable contributions does not appear to be in issue.  The husband has been the principal income provider to the parties through his businesses. 

11. In submissions, counsel for the wife sought to justify the position that the husband ought to receive only $500,000 by way of interim property settlement as follows:

    If, for illustrative purposes, one said that after a long marriage fifty-fifty was an appropriate judgement between the parties then the husband has already got to 50 per cent by retaining those assets […] that he wishes to retain.

12. Counsel’s submission took account of the assets identified by the husband in his affidavit as being those which he wished to retain and appears to be predicated on the assumption that the  following assets would be retained by the husband:

    a)real property at G Street, Suburb H with a proposed a value of $7 million;

    b)E Pty Ltd which includes the following:

    i)real property at U Street, F Town with a purported value of $1,850,000;

    ii)real property at 2 G Street, Suburb H with a purported value of $300,000;

    iii)real property at S Town with a purported value of $1,650,000;

    iv)a farm at T Town currently on the market for sale at $1,600,000;

    v)a boat at a purported value of $45,000;

    vi)I Pty Ltd shares with a current market value estimated by the wife’s counsel at $4,100,000;

    vii)N Pty Ltd 25 per cent share with a purported the value of $25,000; and

    viii)motor vehicles with a purported value of $645,000.

13. The husband currently has the use of assets which stand to be divisible between the parties on the final alteration of property interests.  For instance, the home in which the husband resides is a property in which there is equity of $6 to $7 million dollars; he cannot encumber the property without the wife’s agreement.

14. Whilst counsel for the wife did not endorse an equal division of the assets of the parties as an appropriate final adjustment, he did not urge me to consider a less favourable result for the husband in his submissions as to what is just and equitable at this stage.

15. It is apparent that counsel’s assertion that there is a greater probability of the wife retaining invested funds, was based on the way in which the assets are currently held and not on the available equity in the real and personal property of the parties.  Notably, there was the following discussion:

    HER HONOUR:       Mr Geddes, I also just want to settle one other point with you, to make sure I’ve understood it. You’re not suggesting that there’s no sufficient funds in the pool in relation to this application for the $3 million part property settlement.

    …

    MR GEDDES:         I couldn’t say there aren’t sufficient funds, but it would mean perhaps that the wife has to wait. If there’s to be a further transfer of money, the wife is going to have to wait for either property to be encumbered or to be sold.

    HER HONOUR:       Something to be sold, yes.

    MR GEDDES:         And she’s to be the one who is then waiting.

    HER HONOUR:       Yes, so it’s really a delay issue.

    MR GEDDES:         Yes, so it’s just one of the matters that we bring to your Honour’s attention in the exercise of your discretion.

1. Counsel for the wife did not take issue with the submission made by counsel for the husband, at paragraph 6 of the husband’s outline of case document, that “[it] cannot be said that the Husband will receive less than this amount [$3 million] upon the making of any final property orders.”

2. I am satisfied that the interim property settlement sought by the husband is capable of being adjusted against other assets which will be taken into account on a final alteration of property interests pursuant to s 79 and without resort to s 79A of the Act or appeal.

3. I also have regard to the current financial circumstances of the parties when assessing whether it is just and equitable to make the order sought by the husband.

4. In her financial statement filed 1 November 2013, the wife deposed that her average weekly income is not known and her total weekly personal expenditure is $5,080.  The wife has had, and retains the benefit of, an interim property settlement of $5.7 million.

5. In his financial statement filed 30 September 2013, the husband estimates that his total average weekly income is $7,703 and his total weekly personal expenditure is $11,648. The husband states that his sources of income comprise:

   a)salary received from I Ltd;

   b)interest from the proceeds invested from the sale of C Property;

   c)dividends received from I Pty Ltd and M Tel Pty Ltd;

   d)distributions from his Unit Trust N Pty Ltd; and

   e)rent from a commercial property in G Street, Suburb H.[5]

   [5] The husband deposes in paragraph [4] of his affidavit filed 11 November 13 that he does not receive this income personally but rather that it is paid to E Pty Ltd.

6. The husband notes that his 19 year old son will receive a distribution from the Haines Trust to the extent that there is sufficient net income in the current financial year.  His 16 year old son has no income.  He records that he pays $6,988 per week in expenses for the two children.

7. The husband estimates that the Suburb H property, in which he resides with the children, is currently valued at $7 million.  That property is unencumbered as it is the subject of a court order which prohibits the husband from dealing with the property.  The husband is funding the remodelling and renovation of that property in accordance with the plan agreed between the parties prior to separation.  To date, he has paid a total of $685,845.

8. The husband also deposed that the total balance of all bank accounts held by him is committed to expenses now owing.

9. The husband deposed that he also has an amount of $188,384 held on trust because of a gardening dispute related to the sale of C Property.

10. The wife complained in her affidavit, sworn and filed on 1 November 2013, that the husband’s financial statement filed 30 September 2013 does not include rent received of $480 per week from the commercial property in Suburb V.[6]   She also deposed that the husband has failed to fully account for income he has received. The wife deposed that her accountant is unable to accurately quantify the shortfall between her husband’s income and expenditure.[7]  These complaints are denied by the husband who maintained that the wife has been provided with this information and that rental income is paid to E Pty Ltd.  Given the value of the property owned by the parties or one of them or held in the Haines Trust (by E Pty Ltd).  I am satisfied that, in the circumstances of this case, these matters have no bearing on the exercise of my discretion to make an interim property order in favour of the husband.  These are matters of controversy which may be argued at the final hearing.

    [6] The wife’s affidavit sworn 1 November 2013 at paragraph 4.

    [7] The wife’s affidavit sworn 1 November 2013 at paragraph 6.

11. Counsel for the husband relied upon the husband’s financial responsibility for the children, the husband’s need to fund substantial legal expenses, the need to fund some of his businesses, and his need to balance the shortfall in his income as opposed to his expenses.  Counsel for the husband submitted that the proposed payment of $3 million to the husband will in part be utilised for conservation and improvement of the properties which will be divisible between the parties and which will ultimately benefit both parties.

12. There is a dispute between the parties about the reasons for the sale of C Property and some of the costs of preparing the property for sale.  The wife concedes that C Property was sold due to the cost of maintaining the property and because the parties were not often home.  She concedes that it was agreed that it was appropriate to purchase the Suburb H property as the family home.  She concedes that there was a discussion about how the proceeds of sale would be applied but maintains that she was not aware that anything had changed in the parties’ financial circumstances.

13. The husband deposed that there were significant cash flow problems when the property was sold and the parties decided upon the sale in order to liquidise capital but this is denied by the wife.

14. Counsel for the husband conceded that the expenses outlined by the husband are an indication of what he has paid and not necessarily recurring expenses, but emphasised the extent of the property to be divided between the parties and that there are ample assets from which an appropriate adjustment can be made at a later stage.

15. Counsel for the wife was critical about the lack of affidavit evidence from the husband’s solicitors about the husband’s legal costs.  Counsel for the husband submitted that it is no longer necessary on the basis of Strahan to establish that legal representatives will not continue to act unless legal costs are paid or secured on an ongoing basis.  I accept that submission.

16. I take into account that the husband has deposed to some expenses with which the wife takes issue but, ultimately, I am satisfied that these are matters which can be argued and determined at the final hearing.  If the husband obtains the interim property order he seeks, he will be applying part of his capital to payment of the expenses he describes in his affidavit, some of which the wife challenges.  I accept his counsel’s submission about the husband that essentially “all the payments he seeks to make, for the running of the house, the children and everything, is out of his own money, and that’s very important”.

17. A payment of $3 million to the husband will not affect any earning capacity of either party over and above the loss of interest which would have accrued on those funds had the funds remained invested.  The early interim property order made in favour of the wife, by consent, had an impact on the interest to which the parties were entitled.

18. In the context of s 75(2) factors, I am satisfied that each party can support themselves. The husband is responsible for the children who both reside with him. For the time being, the wife is only responsible for her own expenses.

19. There is no evidence of any responsibility for either party for the support of another person.  There is no information about the financial circumstances of the wife’s new partner.  Counsel for the husband identified a requirement for the wife to provide sufficient details about her partner to enable the husband’s lawyers to cause a subpoena to issue directed to his attendance at Court to give evidence or to produce documents.  The issue was not pressed so I assume it was resolved.

20. I am satisfied that it is just and equitable to make an order as sought by the husband which entails a further payment to him of $2.5 million from the funds held in trust by D Lawyers.

21. The parties agreed that whatever sum the husband is entitled to receive be deemed to be the property of the husband at the final trial or upon the making of final orders, irrespective of how it is applied, or whether it is still in the husband’s possession or control at the date of the trial or the making of final orders and regardless of whether it has increased or decreased.  I will phrase my order accordingly.

Conclusion on the husband’s application for interim property settlement

1. I am satisfied that it is appropriate and just and equitable to make an interim property order in favour of the husband.

2. As to the quantum, I am satisfied that a payment of $3 million to the husband is just and equitable having regard to all of the factors I have outlined, the amount of property to be divided and the fact that the wife has already received a part property payment of $5,700,000. 

3. I am satisfied that a payment to the husband of $3 million from the approximately $13 million held on trust, will not exceed his ultimate entitlement given the quantum of property to be divided between the parties. 

Wife’s application in response for sale or rental of property at F Town

1. Counsel for the wife submitted that the property at F Town should be sold or rented to “stem the flow” of maintenance costs estimated by the husband at between $50,000 to $100,000 per annum. 

2. It was submitted by the wife’s counsel that the husband and children would not utilise the house at F Town during the summer holiday period because they would be in Country W skiing.  It was suggested by counsel for the wife that the property at F Town would command a very good rental during the summer holiday period and that the proceeds of the sale of the property might be invested, or the property could generate an income which would stop the negative outflow of maintenance.  

3. Counsel for the wife relied on the fact that the husband deposed that his income from his employment with I Pty Ltd and the dividends received is “insufficient” and “has been for many years” to suggest that the house at F Town should be sold.  Counsel for the wife relied upon the husband’s affidavit where he stated that they had been living off their capital[8] and that their lifestyle had exceeded the income from their assets.[9]  The wife deposed at paragraphs 26 to 29 in her affidavit sworn 1 November 2013 that the property at F Town is largely vacant and has not been used in the last four years during the summer period because the family has travelled to Country W at that time.  The wife believes that the property has been unused save for approximately two nights in the last two years.

   [8] The husband’s affidavit sworn 30 September 2013 at paragraph 48.

   [9] The husband’s affidavit sworn 30 September 2013 at paragraphs 48 and 50.

4. Counsel for the wife did not identify the relevant source of the Court’s power to grant the relief that the wife seeks. I have assumed that it is either the power to order an interim sale of property under s 79 and

   
   

   s 80(1)(k) or an injunction pursuant to s 114(1)(e) directed to the preservation of property.

5. As with any exercise of the Court’s power under s 79, the Court must be satisfied that it is appropriate to make the order. It also requires consideration of whether it is just and equitable that the F Town property be sold prior to a final determination of property matters.

6. If I regard the wife’s application as injunctive relief, s 114(3) of the Act provides that the Court must be satisfied that it is just and convenient to grant the injunction either unconditionally or upon such terms and conditions as the Court considers are appropriate.

7. The husband resists a sale of the property at F Town.  The husband seeks to retain the property as part of his final property entitlement.  It was submitted by counsel for the husband that it is a property that the husband and children enjoy and that, given the lifestyle of the parties during the marriage, it is not unreasonable that the husband retain the property as part of his final entitlement to an alteration of property interests if he chooses to do so.  It was not suggested by counsel for the wife that the husband would not be able to afford to retain the F Town property as part of an appropriate final alteration of property interests.

8. The husband deposes that the property at F Town has not been rented out at any time during the relationship and that he plans to spend time at F Town in November, early December 2013 and February, March and April 2014.[10] 

   [10] The husband’s affidavit sworn 11 November 2013 at paragraph 21.

9. There is no evidence of any urgent need for funds to preserve the parties’ interests.  The wife has not demonstrated a need for the property at F Town to be sold before the final determination of the property settlement proceedings.  Whilst it is common ground that the property at F Town is expensive to maintain, the husband’s case is that he will be solely responsible for the upkeep of the property and that he will apply funds from his interim property settlement to that end. 

10. I am satisfied that requiring the parties, but more particularly the husband, to offer the property at F Town for holiday or other rental would impinge on the right of the husband to enjoy the property with or without the children and at his convenience.  This is regardless of whether he and the children occupy it over the summer holidays.  In any event, the husband accepts responsibility for maintaining the F Town property using the proceeds of his interim property entitlement to do so.[11]

    [11] See paragraph 16(c) of the husband’s Outline of Case filed 14 November 2013.

11. If I were to accede to the wife’s application for an interim sale that would deprive the husband of the opportunity of retaining the property as part of his entitlement to an alteration of property interests.  The bona fides and practicability of his application to retain the property at F Town is not an issue.

12. I am not satisfied that the relief sought by the wife:

    a)is appropriate or just and equitable, as discussed by the Full Court in Strahan in the context of an interim property settlement;

    b)would be just or convenient within the meaning of s 114(3) of the Act in order to preserve the property of the parties; and/or

    c)would be appropriate or just and equitable if granted as a combination of an interim property settlement and an injunction to preserve assets.  

Conclusion on the wife’s application for an interim sale of the F Town property

1. I am not satisfied that it is appropriate for the Court to make the order for sale as sought by the wife.

2. The property at F Town was not tenanted during the marriage and the husband has assumed responsibility for maintaining the property.  It is not appropriate to make the order sought by the wife for the F Town property to be rented.

Case management

1. The parties agreed that certain relief sought by the wife on an interim basis could be consolidated and determined at the final hearing.  That relief is set out at paragraphs 4, 5, 6, 7 and 8 of the Orders Sought in the wife’s Response to the husband’s Amended Application in a Case, being that:

   a)funds totalling approximately $827,260, of which she alleges the husband has had the benefit, be characterised as having been received by the him as partial property settlement;

   b)the husband reimburse the wife $26,550 in relation to expenses paid by her and associated with the T Town farm property; and

   c)the husband pay the final electricity account for the former matrimonial home in the sum of $13,672.

2. I will make an order in those terms.

3. The parties have compromised or reached an accord on other matters arising out of the husband’s Amended Application in a Case and the wife’s Response.  Accordingly, those applications will be otherwise dismissed.

4. The substantive proceedings are listed for a first day hearing on 7 March 2014.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 23 December 2013

Associate: 

Date:  23 December 2013

ANNEXURE 1

The husband relied upon the following material:

·Affidavit of the husband sworn 30 September 2013;

·Affidavit of the husband affirmed  11 November 2013;

·Affidavit of Philip Daniel Grant, accountant, affirmed 9 July 2013;

·Financial Statement of the husband filed 30 September 2013.

·Outline of Case for Hearing 14 November 2013.

The wife relied upon the following material:

·Affidavit of the wife affirmed 1 November 2013;

·Financial Statement of the wife filed 1 November 2013.