Hughes and Hughes

[2009] FamCA 574

FAMILY COURT OF AUSTRALIA

HUGHES & HUGHES [2009] FamCA 574

FAMILY LAW – PROPERTY – Interim

APPLICANT: Mr Hughes

RESPONDENT: Ms Hughes

FILE NUMBER: MLC 10156 of 2007

DATE DELIVERED: 25 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 25 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.J. Indivino

SOLICITOR FOR THE APPLICANT: Harwood Andrews

COUNSEL FOR THE RESPONDENT: Mr J.R.T. Love

SOLICITOR FOR THE RESPONDENT: CA Haywood & Associates

Orders

1. That in the event the wife sells the real property registered in her name and being situate at and known as N property, Victoria and being the land better described in Certificate of Title Volume 9627 and Folio 598 the wife shall deal with the proceeds of any sale as follows:

   (a)Firstly, to payment of the costs and expenses of the sale;

   (b)Secondly, to repay any amounts due under the existing mortgage over the said property; and

   (c)Thirdly, the balance shall be either placed in a bank account in the wife’s name or used to acquire another property or other investment.

2. That the wife shall notify the husband as soon as practicable of the transactions referred to in paragraphs 1(a) and (b) and (c) of these Orders and provide documentation with respect to the said transactions.

3. That the wife, her servants and/or agents shall be and are hereby restrained from dealing, selling or encumbering any subsequent property purchased or investment or bank account in the wife’s name resulting from the sale of the N property without giving at least 28 days written notice to the husband’s solicitor of any intention to deal with the aforesaid property or bank account or investment property.

4. That there shall be liberty to apply in the event of the wife giving such notice referred to in Paragraphs 1 and 3 hereof.

5. That the husband’s Application in a Case filed on 19 June 2009 and the wife’s Response to an Application in a Case filed 25 June 2009 shall be dismissed.

6. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

7. That my Reasons for Judgment given this day shall be transcribed and retained on the Court file.

8. That each party’s costs of this application shall be reserved to the Trial Judge.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10156 of 2007

MR HUGHES

Applicant

And

MS HUGHES

Respondent

REASONS FOR JUDGMENT

1. This is a duty list matter. There were final property orders made by consent in 2001. There was a variation of those orders in 2003. The husband has since made an application under s 79A of the Family Law Act. 

2. On 11 July 2008 the case came before Young J.  The wife applied for the husband's application to be struck out.  His Honour refused to make that order.  He made various other orders and gave reasons for judgment.

3. Amongst Young J’s orders was a restraint (in paragraph 2) against the wife dealing, selling or encumbering the real estate properties registered in her name without first giving at least 28 days' written notice to the husband's solicitors.  In the course of giving his reasons for judgment, His Honour said at (paragraph 11):

   It is with this background however that I do conclude that the husband's material and those of his witnesses are sufficient to highlight that he does have an issue genuinely to be before the court for determination.

4. That is not to say of course that his Honour could in any way, and nor can I, determine the eventual outcome of the proceedings.  But I note that passage because it is an important element of what I need to consider today.

5. At this stage the wife wants to sell one of the properties referred to in paragraph (2) of his Honour's orders.  It is a farm property.  She has another property in mind that she wants to purchase.  She wants to be able to do that without any restraints placed on her in relation to the transactions, including in relation to any excess proceeds from the sale, or the property that she proposes to purchase. 

6. The husband does not seek to preclude her from being able to sell the property or buy another property.  It is simply that she should be permitted to sell the property, and to buy another property, but any excess funds should then be held in an interest‑bearing account, and Young J’s restraining order should otherwise continue. 

7. Mr Love, counsel for the wife, has argued that there is no basis for the injunction, that there is nothing beyond “concerns” expressed by the husband, and in accordance with the Full Court's decision in Waugh and Waugh (2000) FLC 93‑052, there is nothing beyond an assertion of concerns on the husband's part. Mr Love submitted further that the Full Court in M and DB (2006) FLC 93-293 did nothing to in any way alter the principles in Waugh's case.  Mr Love has argued there is no objective risk of dissipation and therefore no basis for an injunction and that, if I disagree with him, then any interference with the wife's rights should be of a minimal nature and should be by way of undertaking and not injunction. 

8. Mr Indivino for the husband has submitted that I should not discharge paragraph (2) of the Orders made by Young J, that there is no basis for that issue to be revisited and no capacity on my part to exercise appellate review of a decision of another judge.  He says that any undertaking offered by the wife in the course of her affidavit, to the effect that she will simply undertake that she will have sufficient assets to pay the husband, is not reasonable in the circumstances where clearly she has a diametrically‑opposed view as to what might reasonably be required to meet any claim by him.

9. Mr Indivino has submitted too that the farm property that is to be sold is apparently worth between $800,000 and $850,000. That is a little over half the apparent asset pool, and accordingly it is very substantial. He argues that there is an objective risk as to what would happen, in light of the looseness of what the wife says in her affidavit. What is clear is that the assets are in her name, and she has such a diametrically‑opposed view to the husband as to whether or not he has any claim at all under the section 79A proceedings.

10. Mr Indivino points to the principles that are set out M and DB in relation to the granting of an injunction, and I accept that they are general principles.  First, the applicant must show that there is an arguable case that the judgment against the other party or parties will be obtained.  I have noted in this case that Young J has already made a finding in relation to that, when he was asked to but refused to strike out the husband's application.

11. There must also be the demonstration by real evidence and not mere assertion that a refusal to make the order involves a real risk, and I am satisfied in this case that it does.  There is obviously a huge gulf between the parties as to what the husband's entitlement would be, to the extent that it is quite clear the wife says it would be none at all and that she should not be interfered with in any way in relation to these assets, and that in my mind raises a real risk when they are assets that she has the complete control over. 

12. The balance of convenience in this case satisfies me that an order should be made. 

13. This case is due to be listed next week to list the final hearing, and in any event the only order that I am being asked to make is to continue Young J's order, so that the fruits of this particular sale will be protected by the wife giving notice to the husband between now and the short time that is likely to pass before the hearing.  I made it clear in the course of argument that if he unreasonably withheld his consent, he would fall on that in due course.  Otherwise, the court can control what happens with the assets, to ensure that there are sufficient assets to meet any claim that the husband has.

14. I propose granting the orders.  I agree with Mr Love for the husband that I should do so with the minimal interference.  I shall try to stay within the framework of Young J's earlier order, because it is a minimal interference order in the way it is stated. 

15. I do not think there were many issues in terms of the fine detail.  The most contentious issue appears to be in whose bank account or whose trust account the monies are to be held.  It can be with any bank.  It is just not a significant issue. 

DISCUSSION

1. The orders that I make are in accordance with the minutes of orders, not by consent, dated today's date.  I will direct they remain on the court file.  I will add an order on the minutes that my reasons for judgment given this day shall be transcribed and retained on the court file. 

2. As to costs. Costs are a discretionary matter under s 117 of the Family Law Act.  This is an interim stage of what are quite complex proceedings.  I have heard arguments from each side as to why they should have costs today, but I am persuaded by the fundamental stance taken by the husband that the costs issue should be reserved.  I think that it is appropriate, given the complexity of the proceedings, for the trial Judge to look at the matter overall.  I do not think that the situation is as clear as either party would ask me to find, in terms of asking me to make a costs order in their favour today.  I shall add an order to these Minutes, that each party's costs of this application shall be reserved to the trial Judge.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau 

Associate:  Alison Power

Date:  25 June 2009