Hatton and Hatton

[2008] FamCA 49

FAMILY COURT OF AUSTRALIA

HATTON & HATTON [2008] FamCA 49

FAMILY LAW – PROPERTY – Interim

APPLICANT: Mr Hatton

RESPONDENT: Ms Hatton

FILE NUMBER: SYF 2657 of 2004

DATE DELIVERED: 16 January 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: STEVENSON J

HEARING DATE: 11 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Twigg
Adrian Twigg & Co, Solicitors

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Mr Karras
Karras Partners, Lawyers

Orders

I make the following orders and directions:

1. That, until 4:15pm on 7 March 2008, the wife is hereby restrained from causing or permitting the disposal of any personalty in her name, possession or control or to which she claims to be entitled.

2. That within 14 days the wife shall provide to the husband:

   1.A list of the personalty in her name, possession or control or to which she claims to be entitled, to the best of her recollection and belief.

   2.A list of the personalty disposed of by her or at her direction from 31 July 2007 to the date of these orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYF 2657  of 2004

MR HATTON

Applicant

And

MS HATTON

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. I am required to determine a very limited interlocutory aspect of the ongoing litigation between the husband and the wife.  The parties consented to final orders for settlement of property on 31 July 2007. The wife filed an application pursuant to section 79A on 10 September 2007.  The husband has since filed applications for enforcement of the orders of 31 July 2007 and for summary dismissal of the wife’s section 79A proceedings.

2. On 30 November 2007 the application for summary dismissal and enforcement of certain orders in relation to chattels were listed for hearing.  The matter was not reached and is now listed for hearing on 7 March 2008.

3. The only issue for me to determine is whether there should be orders and directions in accordance with a handwritten document submitted on behalf of the husband on 30 November 2007.  He sought the following orders and directions:

   “2)     That pending further order, the wife be and hereby is restrained from causing or permitting the disposal of any personalty in her name, possession or control or to which she is entitled.

   3)That within fourteen (14) days the wife shall provide to the husband:

   3.1)a list of the personalty in her name, possession or control wherever situate;

   3.2)a list of the personalty disposed of by her or at her direction from 31 July 2007 to date;  and,

   3.3)in relation to the list pursuant to paragraph 3.1, a list of those items of personalty which the wife concedes are to be considered as the husband’s personalty for the purposes of order 5 of 31 July 2007.”

4. On 7 March 2008 the court will be asked to determine, inter alia, a dispute as to the distribution of personal property as between the parties.  This issue involves the construction and interpretation of the consent orders of 31 July 2007.  Meanwhile, the husband seeks an injunction to restrain the wife from disposing of any personalty in her name, under her control or to which she is entitled.

5. The wife opposes the making of the injunction, which her legal representative described as “a restraint in very broad terms”.  It was also submitted that the orders of 31 July 2007 exhausted jurisdiction under section 79, yet now the husband seeks to have the court determine the ownership of various chattels.  It was thus contended that it would be inappropriate to order the injunction in relation to chattels as sought by the husband.

6. With respect, I disagree with both of these propositions put on behalf of the wife.  There is a live dispute as to the interpretation of the orders of 31 July 2007 in relation to ownership of the parties’ chattels and/or the enforcement of order 5 made on that date. 

7. In these circumstances, I do not see why the wife should be left in a position where she can deal at will with all or any of the chattels presently in her possession or under her control before the court is able to address these issues on 7 March 2008.  I have some sympathy with the submission on behalf of the husband, to the effect that no proper redress, in terms of personal property, will be available to him if the wife does dispose of such items before these issues are determined by the court.  The consent orders provided for the distribution of personalty in specie, which could not be achieved if the wife disposes of such items before the next hearing.  I propose to make the injunctive order sought by the husband until 7 March 2008.

8. The husband also seeks directions to the effect that the wife provide three lists in relation to personalty, as set out above. The wife opposes this application, apparently on two bases.

9. Firstly, the wife has placed certain chattels in storage with a furniture removal firm.  She maintains that it would cost $4,560 to have the removalists redeliver these stored items to the former matrimonial home, where she currently lives.  She claims that it would be impossible for her to prepare the lists sought by the husband without physical access to these chattels.

10. This contention appears to have some logical basis.  It should not be impossible, however, for the wife to prepare a list of items of which she has disposed since 31 July 2007.  Further, it should not be impossible for her to provide a list, to the best of her recollection and belief, of the personalty in her name, possession or control or to which she claims to be entitled pursuant to order 5 made on 31 July 2007.  If she maintains that she has already done so by the contents of her affidavit sworn on 2 October 2007 and 11 December 2007, it is simply a matter for her to say so in order to comply with any such directions.

11. I can see no utility in the direction which the husband seeks to the effect that the wife provide a list of items which she concedes are his personalty for the purposes of order 5 made on 31 July 2007.  Clearly, there is a dispute as to the meaning and application of this order.  Again, if the wife maintains that she has provided the requested list by way of her affidavits she need only say so.

12. I propose to direct that the wife provide to the husband a list of items of personalty of which she has disposed since 31 July 2007.  Further, I will direct that she provide a list of all chattels in her possession, under her control, or to which she claims to be entitled, to the best of her recollection and belief.  She is not required to cause the removal of any chattels from storage. 

13. I am not asked to direct that the husband provide a list of items of personalty to which he claims to be entitled pursuant to order 5 made on 31July 2007.  I comment only that it may be of assistance to the court on 7 March 2008 if he were to do so.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              16 January 2008