Hansell and Hansell

[2009] FamCA 938

FAMILY COURT OF AUSTRALIA

HANSELL & HANSELL [2009] FamCA 938

FAMILY LAW – SPOUSAL MAINTENANCE

Family Law Act 1975 (Cth) ss 72(1), 75, 77

APPLICANT: Ms Hansell

RESPONDENT: Mr Hansell

FILE NUMBER: SYC 3086 of 2009

DATE DELIVERED: 30 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 2 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Batey

SOLICITOR FOR THE APPLICANT: Warren F Ball & Co

COUNSEL FOR THE RESPONDENT: Mr M Kearney

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

Orders

1. That by way of urgent spousal maintenance pursuant to s 77 of the Family Law Act 1975 the husband shall pay to the wife or as she shall in writing direct $440 per week as from 2 July 2009 until completion of the substantive financial proceedings between the parties.

2. Pending further order, and upon the wife providing a written undertaking as to damages, the husband is restrained from selling, encumbering, transferring or otherwise dealing with all of his interest in any real estate in which the husband has a beneficial and/or legal interest, whether such interest is held by the husband in his personal capacity or as shareholder, trustee, partner or joint venturer:

3. Pending further order, and upon the wife providing a written undertaking as to damages, the husband is restrained from selling, encumbering, transferring or otherwise dealing with his interests in the following:

   3.1      A Pty Limited ACN …

   3.2      B Pty Limited ACN …

   3.3      C Pty Limited ACN …

   3.4      D Pty Limited ACN …

   3.5      E Pty Limited

   3.6      F Pty Limited ACN …

   3.7      G Pty Limited ACN …

4. That within 28 days of the date of these orders the husband caused to be provided to the wife’s legal representatives:

   4.1Copies of the preceding two years statements to the date of this application for credit cards used by the husband whether in his own name or as a supplementary card on a third parties credit card account, and/or in the name of any corporation including but not limited to:

   4.1.1G.E. Mastercard

   4.1.2American Express

   4.2Profit and Loss Statements, and Balance Sheets for any private Company, Trust, Joint Venture or partnership in which the husband holds shares, or has a beneficial or legal interest or is the recipient of any payment or benefit for the financial years ended 30 June 2006, 2007 and 2008 including but not limited to

   4.2.1A Pty Limited ACN … (excluding 2006 & 2007)

   4.2.2B Pty Limited ACN … (excluding 2006 & 2007)

   4.2.3C Pty Limited ACN …

   4.2.4D Pty Limited ACN …

   4.2.5E Pty Limited

   4.2.6F Pty Limited ACN …

   4.2.7G Pty Limited ACN …

   4.3Details of any benefit received by the husband for any individual, corporation trust or any other entity for the provision of accommodation H Property over the last twelve months including the address of any accommodation so identified if different from H Property.

   4.4An itemised account for the receipt and disbursement of any proceeds of sale the husband received from the sale of E Pty Limited whether in his personal capacity or in his capacity as shareholder, director or trustee.

   4.5Taxation return for the husband for the financial year ended 30 June 2008.

5. Other than as provided for in these orders and pending further order and upon the wife providing a written undertaking as to damages, the husband is restrained from selling, encumbering, transferring or otherwise dealing with cash and/or assets of any Trust in which he has a legal and or beneficial interest whether discretionary or (“the Trust”) other than in the ordinary course of business or with the written consent of the wife, after the husband has given the wife 28 days notice in writing of his intention to do so.

6. Other than as provided for in these orders and pending further order the husband is restrained from doing all or any of the following things in relation to the Trust:

   6.1      To make any loan or advance to any beneficiaries

   6.2      To alter or vary the signatories to the bank accounts of the Trust

   6.3To alter the rights or appointments of the Trustees of the Trust, or otherwise amend the Trust Deed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3086 of 2009

MS HANSELL

Applicant

And

MR HANSELL

Respondent

REASONS FOR JUDGMENT

Introduction and applications

1. These are interim proceedings.  The parties are Ms Hansell and Mr Hansell.  For convenience I shall refer to them as “the wife” and “the husband” respectively.

2. The wife seeks orders to the following effect by way of urgent spouse maintenance:

   ·That within 21 days the husband pay to her solicitors the sum of $60 824.00 and upon receipt of such payment the wife will pay such monies as follows:

   $20 000 to Warren F Ball & Co, Solicitors being for the wife’s costs incurred;

   $6324 to the wife’s parents in repayment of the loan to the wife;

   $36 400 rental arrears; and

   $2500 Centrelink overpayment

   ·That the trial judge at substantive hearing remain at liberty to determine whether the above monies paid out are to be treated as an advance of corpus, a contribution by the husband towards the wife’s disbursements in these proceedings or provision of proper maintenance for the wife.

   ·That within 7 days of payment by or on behalf of the husband of any monies in payment of accounts rendered by his lawyers or his accountants or a valuer engaged by him the husband pay or cause to be paid an amount equal to that paid by him to the solicitors for the wife.

   ·Or in the alternative that the husband pay in the first instance all costs of any single expert valuer and the wife reimburse him for a one half share of such costs upon conclusion of the proceedings.

   ·That pending further order the husband cause the wife to be paid by way of spousal maintenance the sum of $800 per week.

   ·Certain orders for provision of documents the details of which it is unnecessary  to specify at this point.

3. The husband opposed each of the above orders sought and sought an order to the effect that a single expert be appointed to value his interests in the companies B Pty Ltd, A Pty Ltd, C Pty Ltd and D Pty Ltd and that the parties share the costs of such valuation equally.  But this was not pressed.  In any event it is not clear to me how the costs of such an expert would be funded.

4. The parties agreed to the Court putting into place pending further order various injunctions the details of which it is unnecessary to specify at this point.

Background

1. The brief background is as follows.  The husband was born in 1972.  The wife was born in 1979.  They commenced cohabiting in approximately May 2002, they married in April 2005 and they separated in June or July 2007.  There is one child of the marriage born in June 2004.  A child support assessment issued on 26 March 2009 which requires the husband to pay child support at the monthly rate of $697.92 which is a weekly rate of $160.51.  The husband has been paying child support well in excess of this amount and in addition he has been paying the child’s day care costs.  I shall refer to this again below.

Urgent periodic spousal maintenance

1. Sub-section 72(1) of the Family Law Act 1975 provides that a party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, the other party is unable to support herself or himself adequately for one or more of the reasons set out in the sub-section.  These reasons are either by reason of having the care and control of the child of the marriage who has not attained the age of 18 years, by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason having regard to any relevant matter referred to in sub-section 75(2) of the Act. 

2. Section 77 of the Act provides in effect that where in such proceedings it appears to the Court that a party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine what order, if any, should be made the Court may order the payment pending the disposal of the proceedings, of such periodic sum or other sums as the Court considers reasonable.

3. The wife’s case is that she is unable to support herself adequately given her limited income and resources and that the husband has the capacity to be able to provide her with appropriate support.

4. The wife works as a payroll officer and her wages before tax are $403 per week.  In addition she receives the single parent parenting payment which is $197 per week, the Family Tax Benefit Part A of $24 per week and she receives $220 per week from the husband by way of child support.  This is a total weekly income of $844.  She estimates that her weekly expenditure comes to a total of $1312 and that therefore she is $468 per week short of her reasonable needs.  Although there was not a detailed challenge to the wife’s estimates but rather a broad criticism of the level of her estimates, in my view some are higher than what one would expect in one’s experience generally particularly food, petrol, clothing, entertainment and holidays, even taking account of the lifestyle which the parties appear to have led.  In my view the reasonable needs of the wife including say $300 of the $400 per week rent, the balance of $100 being attributed to the child’s rent, are $850.  In determining what income the wife has to meet these needs the Court is required under the legislation to disregard the single parenting payment and the Family Tax Benefit Part A.  These come to a total of $221.  In addition in this part of the exercise I would not regard the $220 received as child support as being income available for this purpose because clearly it has to provide for the child’s needs which are separate from this exercise.  Accordingly, the amount of income available to the wife to meet this need of $850 per week is simply her $403 wages.  On this basis the wife has a deficiency of $447 per week to meet her own needs.

Other urgent  spousal maintenance

1. It is asserted by the wife that she owes her parents $6324 for a loan, $36 400 by way of rental arrears and that she owes Centrelink $2500 apparently by way of an overpayment to her.  The $6324 is money paid by the wife’s parents by way of her legal costs.  In relation to the rental arrears, the wife’s parents own a home unit at J.  Shortly after the parties separated the wife required accommodation and her parents were unable to accommodate her and the child at their home.  So they entered into a lease with the wife which enabled her to rent the J home unit from them at the weekly rental of $400.  The wife has been unable to pay any of that rent and the $36 400 is an aggregation of that rent.  The wife’s father said that he and his wife permitted the wife to fall into arrears since the commencement of the lease as they expected her to stay only for a short period and anticipated that she would be able to pay rental arrears when she had arranged her finances.  But unfortunately that has not occurred.  The wife’s father says that he and his wife now require the arrears to be paid because they need the funds to assist them in their retirement.  They have asked the wife to either commence paying rent or obtain alternative accommodation so that they can lease the property to a paying tenant.

2. In my view this lump sum which is sought for payment of rental arrears is not a matter which I would regard as appropriate for a lump sum urgent spouse maintenance order.  I take a different view about the ongoing requirement to pay rent in circumstances where the wife’s parents have clearly indicated that they are no longer prepared to have this situation continue.  That is a circumstance which in my view brings about the urgency within the meaning of this as a matter of law.  But I do not accept that there is an urgent need to repay the arrears.  The question of whether that is an enforceable liability as against the wife is more properly a matter to be considered in my view in the context of the substantive proceedings.

3. In relation to the lump sum of $6324 sought by the wife to repay her parents for advance of monies to the wife to pay her legal costs again I am not persuaded that the elements required to satisfy urgency are present.  Again this might well be a recoverable liability.  But as with the lump sum arrears in my view this would more properly be considered in the context of the substantive proceedings.

4. In relation to the alleged $2500 Centrelink overpayment, as submitted on behalf of the husband there is no evidence to support this liability and in these circumstances again in my view it does not satisfy the test of urgency.

The husband’s capacity to pay spousal maintenance

1. It was submitted on behalf of the husband that he has no capacity to be able to pay any order the Court might make for either spousal maintenance or any other payment. 

2. There is a level of complexity about the husband’s financial circumstances.  He is a shareholder in four corporations which apparently form a part of the business operated by members of his family under the leadership of his father Mr Hansell Snr.  Relevant corporations are A Pty Ltd, the husband holding one ordinary share, B Pty Ltd in which the husband holds 1000 C Class shares, C Pty Ltd in which the husband holds 2000 C Class shares, 1000 G Class shares and 2000 H Class shares, and D Pty Ltd in which the husband holds 10 B Class shares. 

3. There is a considerable issue between the parties about what value the husband’s interest in these corporations might be worth.  In his Financial Statement the husband estimates the value of his shareholdings in the corporations respectively as having a value of $1, $2000, $5000 and $10.  The wife is sceptical about this and this issue of valuation has not been able to be resolved.  Given the circumscribed nature of these proceedings and particularly the fact that there is no expert evidence at this point to assist the Court to be able to determine the value of the husband’s interest in these corporations I have no idea whether the husband’s estimates of the value of his interests is correct. 

4. Turning to the husband’s current income the husband estimates his income in his Financial Statement from all sources as being $1776 per week.  This is said to consist of his salary of $865, AMP dividends of $3, income from the company F Pty Ltd of $346 and benefits provided by one or other of the companies in respect of provision of mobile telephone, motor vehicle use, petrol and an E-tag to which he attributes a value of $562 per week.

5. There is no question that the parties enjoyed a comfortable lifestyle during their cohabitation and marriage.  They enjoyed the use of a comfortable home unit at H which was provided by the company B Pty Ltd.  There were numerous holidays including a couple of overseas holidays, a very considerable amount of dining out at restaurants and from the wife’s perspective it seemed that money was no object. 

6. During the parties’ marriage and cohabitation, and to this day, the husband has been employed by one or other of the relevant entities.  It is also clear that during cohabitation and marriage the husband’s income of itself was far from sufficient to fund the parties’ comfortable lifestyle.  The husband enjoyed not only the provision of accommodation, payment of some utilities at least and provision of a motor vehicle but he also enjoyed the use of a credit card facility provided either by his father or one of the entities. 

7. The husband says that his total weekly personal expenditure is $1208 including what he pays for the child.  But these are urgent spousal maintenance proceedings and what I have regarded as reasonable for the wife at least in a broad sense, should guide me about what I should regard as reasonable for the husband.  In my view, his estimates for food, clothing, holidays and gardening are above what I would regard as reasonable in all the circumstances particularly bearing in mind the approach I have taken in relation to the wife’s estimates of her expenses.  In all the circumstances in my view a reasonable level of personal expenditure by the husband is $750 per week, bearing in mind that his accommodation and various other benefits are made available to him without him having to fund these.

8. The income which he has available to meet such a need consists of his salary of $865, his dividend of $3 and income from F Pty Ltd of $346 per week which is a total of $1214 per week.  If I subtract his $750 expenditure from $1214 he has surplus income of $464 per week available to meet a spousal maintenance order.

9. In these circumstances and taking account of the wife’s reasonable needs on an urgent basis in my view it would be appropriate to order the husband to pay to the wife the sum of 440 per week pending further order.

Urgent payment for wife’s legal costs

1. In relation to the wife’s application that the husband pay $20 000 to the wife’s solicitors to pay her legal costs it was conceded on behalf of the wife that there is no fund available to the husband from which an order in this amount could be paid.

2. Having said this, learned counsel for the husband submitted that the Court should make an order in the wife’s favour for payment by the husband to the wife’s solicitors $1 for each $1 paid by or on behalf of the husband to his solicitors for his legal costs and/or disbursements.

3. It was submitted on behalf of the husband that such an order would be most unfair to the husband because the husband has not been paying his legal costs, rather such have been paid by his parents.  It was submitted that the husband would not have the available funds from which such a liability could be met.  I accept this submission.  In my view this case is quite different from the well known cases such as Poletti and Poletti where a fundamental characteristic was that it was the husband who was in control of the “patrimony” of the parties.

4. This is not the position in the present case.  It is the husbands’ father who appears to be in the position of such control.

5. In these circumstances in my view the wife’s application must fail in this regard.

Injunctions

1. The parties have agreed that the following orders be made:

   “8.Pending further order, and upon the wife providing a written undertaking as to damages, the husband is restrained from selling, encumbering, transferring or otherwise dealing with all of his interest in any real estate in which the husband has a beneficial and/or legal interest, whether such interest is held by the husband in his personal capacity or as shareholder, trustee, partner or joint venturer:

   Other than for the purpose of complying with orders (which were sought but will not be made).

   9.Pending further order, and upon the wife providing a written undertaking as to damages, the husband is restrained from selling, encumbering, transferring or otherwise dealing with his interests in the following:

   9.1[A] Pty Limited ACN […]

   9.2[B] Pty Limited ACN […]

   9.3[C] Pty Limited ACN […]

   9.4[D] Pty Limited ACN […]

   9.5[E] Pty Limited

   9.6[F] Pty Limited ACN […]

   9.7[G] Pty Limited ACN […]

   Other than for the purpose of complying with orders (which were sought but will not be made).

   …

   11.Other than as provided for in these orders and pending further order and upon the wife providing a written undertaking as to damages, the husband is restrained from selling, encumbering, transferring or otherwise dealing with cash and/or assets of any Trust in which he has a legal and or beneficial interest whether discretionary or (“the Trust”) other than in the ordinary course of business or with the written consent of the wife, after the husband has given the wife 28 days notice in writing of his intention to do so.

   12.Other than as provided for in these orders and pending further order the husband is restrained from doing all or any of the following things in relation to the Trust:

   12.1To make any loan or advance to any beneficiaries

   12.2To alter or vary the signatories to the bank accounts of the Trust

   12.3To alter the rights or appointments of the Trustees of the Trust, or otherwise amend the Trust Deed.”

1. But the husband disagreed that there was any need for the Court to make the following orders sought by the wife:

   “10.That within 28 days of the date of these orders the husband caused to be provided to the wife’s legal representatives:

   10.1Copies of the preceding two years statements to the date of this application for credit cards used by the husband whether in his own name or as a supplementary card on a third parties credit card account, and/or in the name of any corporation including but not limited to:

   10.1.1G.E. Mastercard

   10.1.2American Express

   10.2Profit and Loss Statements, and Balance Sheets for any private Company, Trust, Joint Venture or partnership in which the husband holds shares, or has a beneficial or legal interest or is the recipient of any payment or benefit for the financial years ended 30 June 2006, 2007 and 2008 including but not limited to

   10.1[A] Pty Limited ACN […] (excluding 2006 & 2007)

   10.2[B] Pty Limited ACN […] (excluding 2006 & 2007)

   10.3[C] Pty Limited ACN […]

   10.4[D] Pty Limited ACN […]

   10.5[E] Pty Limited

   10.6[F] Pty Limited ACN […]

   10.7[G] Pty Limited ACN […]

   10.3Details of any benefit received by the husband for any individual, corporation trust or any other entity for the provision of accommodation [H Property] over the last twelve months including the address of any accommodation so identified if different from [H Property].

   10.4An itemised account for the receipt and disbursement of any proceeds of sale the husband received from the sale of [E] Pty Limited whether in his personal capacity or in his capacity as shareholder, director or trustee.

   10.5Taxation return for the husband for the financial year ended 30 June 2008.”

2. This was said to be because the husband said that he has already provided all this documentation to the wife’s solicitor.

3. I am unable to determine whether or not such documents have been so provided.  Accordingly, I propose to make such an order and if necessary the Court can determine at some future point whether or not it has been complied with.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston

Associate:     

Date:              30 September 2009