JACOBSEN & JACOBSEN

[2020] FamCA 551

FAMILY COURT OF AUSTRALIA

JACOBSEN & JACOBSEN [2020] FamCA 551

FAMILY LAW – PROPERTY – Where there are existing interim orders in place regarding the parties’ property – Where each of the parties seeks orders that vary or enforce those existing orders – Where some of the orders sought seek to litigate matters already determined – Where some of the orders sought should be resolved at a final hearing – Orders made to enforce or facilitate some of the existing orders – Applications otherwise dismissed – Where the parties agree to arrangements regarding expert valuations of the parties’ property – Orders made by consent.

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Variation – Where there are existing interim parenting orders in place – Where those orders were made by consent – Where the father seeks an increase in his time with one of the children – Where that increase in time is opposed by the mother and not supported by the Independent Children’s Lawyer – Where the existing arrangement is apparently working well – Where the Court is not satisfied that there has been a change in circumstances warranting the change – Application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 79

Eaby &Speelman (2015) FLC 93-654
Gabel & Yardley (2008) FLC 93-386
Goode & Goode (2006) FLC 93-286
Harris & Harris (1993) FLC 92 378
Hickey and Hickey and the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Rice & Asplund (1979) FLC 90-725
SS & AH [2010] FamCAFC 13
Strahan & Strahan (2011) FLC 93-466

APPLICANT: Ms Jacobsen

RESPONDENT: Mr Jacobsen

INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

FILE NUMBER: SYC 3701 of 2018

DATE DELIVERED: 15 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 15 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Wilkins

Orders

1. The husband’s application for variation of the interim parenting orders made on 23 November 2018 is dismissed.

2. By consent, orders are made in terms of the document titled “Consent Orders” received by email on 6 July 2020 and as set out hereunder:

   PARENTING

   High School Applications for Y

   1.That both parties shall do all things necessary to submit all necessary paperwork to secure Y a confirmed place at H School for Year 7 2022 with the wife meeting any fees and for this purpose, the husband is to complete the online form and any other necessary documentation within five (5) days of the date of these Orders. In the event that Y does not attend H School for Year 7 2022, the Wife shall indemnify the husband in relation to any fees or other financial consequences arising as a consequence of her non attendance.

   2.That the wife shall sign any high school application prepared by the husband to secure a confirmed place for Y at the N School for Year 7 2022 (with the husband meeting any fees for this purpose), within seven (7) days of receiving a request from the husband and/or from the N School. In the event that Y does not attend N School for Year 7 2022, the husband shall indemnify the wife in relation to any fees or other financial consequences arising as a consequence of her nonattendance.

   IT IS NOTED that the above Orders do not constitute a determination of which school Y should attend with such issue, in absence of agreement in writing, to abide further order of the court.

3. By consent, orders are made in terms of the document titled “Consent Orders” received by email on 6 July 2020 and as set out hereunder:

   PROPERTY

   Valuations

   3.That the husband shall:

   3.1.complete the 2019 Financial Statements and lodge the 2019 tax return for H Pty Ltd with the Australian Taxation Office by 7 July 2020;

   3.2.complete the 2020 Financial Statements and lodge the 2020 tax return for H Pty Ltd with the Australian Taxation Office by 30 July 2020; and

   3.3.provide the above documents to the wife within 48 hours of their finalisation.

   4.That the Court record that the parties have agreed to engage Ms P of Q Accounting to undertake a formal valuation of H Pty Ltd ACN ….

   5.That within fourteen (14) days, the parties shall jointly engage Ms P of Q Accounting pursuant to Part 15.5 of the Family Law Rules 2004 (Cth) to undertake a formal valuation of H Pty Ltd with such report to address the value of H Pty Ltd as at 30 June 2020.

   6.For the purpose of the above order:

   6.1.within seven (7) days of this Order, the wife shall either confirm her agreement to the release of, or propose amendments to be made to, the proposed joint letter of instructions prepared by the husband's legal representatives dated 8 July 2019, noting the letter is to request that the valuation be as at 30 June 2020 not 30 June 2018;

   6.2.in the event of agreement being received from the wife, the husband shall within seven (7) days of receiving written confirmation from the wife of her agreement to the proposed joint letter of instruction, cause his legal representatives to release the joint letter of instruction to Ms P; and

   6.3.in the event the proposed amendments are not agreed, the husband and the wife shall have liberty to relist the matter on the giving of seven (7) days’ notice for the purpose of settling the proposed joint letter of instruction.

   7.That the Court record that the parties have agreed to engage Mr R and S Company to undertake a formal valuation of the real properties listed at Orders 6 and 7 below.

   8.That within fourteen (14) days, the parties shall jointly engage Mr R pursuant to Part 15.5 of the Family Law Rules 2004 (Cth) to undertake a formal valuation of the following real properties:

   8.1.Property T ;

   8.2.Property A NSW ;

   8.3.Property B;

   8.4.Property G ;

   8.5.Property D;

   8.6.Property E;

   8.7.Property U ;

   8.8.Property V;

   8.9.Property W;

   8.10.Property Z;

   8.11.Property D;

   8.12.Property AA;

   8.13.Property BB;

   8.14.Property CC; and

   8.15.Property DD.

   9.That within fourteen (14) days the parties shall jointly engage S Company pursuant to Part 15.5 of the Family Law Rules 2004 (Cth) to undertake a formal valuation of:

   9.1.Property EE;

   9.2.Property FF; and

   9.3.Property GG.

   10.For the purpose of Orders 616 and 7:

   10.1.within seven (7) days of this Order, the wife’s legal representatives shall prepare proposed joint letters of instruction to Mr R and S Company and forward same to the husband's legal representatives;

   10.2.within seven (7) days of receipt by the husband’s legal representatives of the proposed joint letter of instructions as provided for in Order 8.1, the husband shall confirm his agreement to the release of the letter in its original form or propose amendments that he seeks be made;

   10.3.in the event of agreement being received from the husband, the wife shall, within seven (7) days of receiving written confirmation from the husband of his agreement to the proposed joint letter of instruction, cause her legal representatives to release the joint letters of instruction; and

   10.4.in the event the proposed amendments are not agreed, the wife and the husband shall have liberty to relist the matter on the giving of seven (7) days’ notice for the purpose of settling the proposed joint letters of instruction.

4. Unless the parties otherwise agree in writing, they are to each pay one half of the costs of any valuation prepared pursuant to Order 3(3), 3(6) or 3(7) within seven days of receipt of an invoice from the respective valuer.

5. The parties do all things and sign all documents necessary to appoint a Trustee for Sale of Property A.  The wife will provide the names of three persons qualified to undertake that role and within seven days thereafter, the husband shall select one of those persons.

6. The Trustee shall have the sole power to do the following:

   (a)       select the agent to have conduct of the sale (“the selling agent”);

   (b)       negotiate the commission rate with the selling agent;

   (c)       sign the agency agreement with the selling agent;

   (d)determine the method of sale, listing price and reserve price for Property A in consultation with the selling agent and/or with the assistance of a formal valuation if required by the Trustee;

   (e)select the solicitor to act on the sale of Property A and instruct that solicitor to prepare the contract for sale;

   (f)undertake any clearing of vegetation and undertake any minor maintenance or repairs as recommended by the selling agent with the costs to be met from the sale proceeds; and

   (g)do all other things necessary to sell Property A for the best price reasonably obtainable.

7. The husband and wife shall co-operate in every way with the agent and Trustee including (without limiting the generality of the foregoing):

   (a)       making the key available to the agent;

   (b)       signing all documents requested to sell Property A;

   (c)executing a contract for sale in the form prepared by the solicitors having the conduct of the sale and any other documents required to effect the settlement of Property A;

   (d)allowing inspection of Property A at all times as requested by the selling agent; and

   (e)doing or saying nothing to hinder or prevent a sale being effected.

8. That upon settlement of the sale of Property A, the Trustee and the husband and wife (as necessary) shall do all things and sign all documents necessary to distribute the proceeds of the sale in the following manner and priority:

   (a)discharge of any mortgages or other encumbrances secured on title of Property A;

   (b)in payment of any rate adjustments;

   (c)in payment of the reasonable expenses of the sale, including agent’s commission and advertising expenses, legal expenses and disbursements;

   (d)in payment of the Trustee's fees for selling Property A; and

   (e)the balance to be equally divided between the parties.

9. By way of enforcement of Order 4 of the Orders made on 6 September 2019 and in addition to that order, within seven days of the date of these Orders:

   (a)the husband shall set up online view access for the wife to the H Pty Ltd MYOB accounts including, but not limited to, all transactions and reports, banking, cards, inventory, payroll, purchases, sales and the Journal Security Audit Report;

   (b)the husband is to provide to the wife’s solicitors instructions and a password to allow the wife to access the MYOB accounts; and

   (c)the husband shall be restrained from changing the access privileges or password for the wife’s access to the MYOB accounts until the resolution of this matter on a final basis.

10. Within seven days of the date of these Orders, the husband shall provide to the wife by email a current loan account ledger which covers the period from the date of commencement of the shareholder loans until the current date and includes the following:

    (a)       all transactions for the above period; 

    (b)       a date for each transaction;

    (c)       the amount allocated to each shareholder;

    (d)       the relevant credit card or bank account; and

    (e)       a description of the transaction.

11. Within 14 days after the conclusion of each calendar month, the husband shall provide to the wife by email an updated loan account ledger as described above.

12. The husband’s application for permission to enter the former matrimonial home and remove his items of personalty is adjourned to the final hearing.

13. Order 16 made on 6 September 2019 is vacated.

14. Otherwise, the interim applications, including the applications for the sale of the Collector’s Number Plate, Company M shares and for the issue of a dividend by H Pty Ltd , are dismissed.

15. Leave is granted to each of the parties to restore the proceedings within 14 days in respect of the wording but without agreement, not the import of the above Orders.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3701 of 2018

Mr Jacobsen

Applicant

And

Ms Jacobsen

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interlocutory proceedings in the context of proceedings for parenting and property settlement between Mr Jacobsen and Ms Jacobsen.  Although the parties are now divorced they are also referred to in their documents as “the husband” and “the wife” respectively and I will do the same.  The interim proceedings were heard on 15 June 2020.  Some of the issues reflected in the parties’ respective applications and responses were resolved by agreement. 

2. The parties have two children; X and Y, who are 11 and 13 years of age respectively.  There are orders in force in respect of the living arrangements for the children and the father seeks a change to the orders affecting Y.  The mother opposes those changes but the parties agreed to orders about enrolment in schools.  There are interim financial orders in force and both parties seek changes to those orders.

3. Judgment was reserved on the contested issues.  What follows are the reasons for the orders set out above.

Applications

1. By his Response to an Application in a Case filed 4 May 2020 the husband sought the following orders:

   1.That Orders 1, 2 and 16 of the Interim Orders made on 6 September 2019 be discharged.

   2.That the husband be appointed the trustee for sale for the property situated at Property A and immediately list the property for sale for the best price reasonably obtainable.

   3.The manner in which Property A should be sold, including the appointment of an agent and the sale mechanism shall be determined by the husband.

   4.That upon the sale of Property A, the proceeds shall be paid as follows:

   4.1In order to pay the real estate agent’s fees and legal costs associated with the sale,

   4.2To reimburse the husband for any expenses he is paid directly with respect to Property A from 6 September 2019 to the date of settlement of the sale, including but not limited to any costs associated with getting the property ready for sale;

   4.3the balance shall be distributed equally between the parties.

   5.That the parties do all acts and things necessary to declare a dividend payable to each of the parties in the sum of $550,000, from H Pty Ltd and each of the parties shall apply those funds in order to pay their personal income tax, including any tax payable upon the dividend issued to each of the parties in the 2019 financial year and the balance shall be retained by each of the parties in order to meet any tax payable upon the lodgement of their income tax returns for the financial year ended 30 June 2020.

   6.The husband and wife forthwith do all acts and things necessary to sell the shares held in their joint names in Company M.

   7.Upon the sale of the Company M shares, the parties shall disburse the proceeds of sale equally between them and shall be responsible for any capital gains tax arising with respect to the sale of those shares incurred in their individual names.

   8.That the husband be granted access to the property situated at Property T upon providing the wife with 28 days written notice of his intention to attend upon the property.

   9.That the husband be permitted to remove any personal items, effects, paperwork, clothing, tools or other personal items from Property T.

   10.That the wife’s Application in a Case 9 March 2020 he [sic] and is hereby dismissed.

   11.That the wife pay the husband’s costs of and incidental to these proceedings.

2. The husband also presses Order 18.1 contained within his Response to an Application in a Case filed on 18 July 2019, which seeks the following:

   18.That Order 4 of the orders made 23 November 2018 be varied to provide the following:

   18.1Y live with the father during the school term as follows:

   18.1.1Week 1: from after school Wednesday (or 3pm if a non school day) to the commencement of school Thursday (or 9am is a non school day)

   18.1.2Week 2: from after school Wednesday (or 3pm if a non school day) to the commencement of school Thursday (or 9am is a non school day)

3. By her Amended Application in a Case filed 6 May 2020 the wife seeks the following orders in relation to financial matters:

   PROPERTY

   Sale of the Collector’s Number Plate

   1.That the mechanics as to the process of sale of the [Collector’s Number Plate] as ordered at Order 16 of the Orders made by Justice Rees on 6 September 2020 [sic] shall be varied such that:

   2.That the parties do all things necessary and sign all documents necessary to appoint Mr HH of JJ Company as the sole Trustee ("the Trustee") for Sale of the [Collector’s Number Plate] within seven (7) days.

   3.That the Trustee shall have the sole power to do the following:

   3.1Select the agent/organisation to have conduct of the sale ("the selling agent") for the [Collector’s Number Plate] with each party to have seven (7) days to advise the Trustee of their preferred method of sale and the trustee to advise of his decision within fourteen (14) days;

   3.2Set the sale price and/or net reserve price for the [Collector’s Number Plate] in consultation with the selling agent;

   3.3Negotiate the commission rate with the selling agent; and

   3.4Do all other things necessary to sell the [Collector’s Number Plate] for the best price reasonably obtainable.

   4.….

   5.That the Husband shall do all things and sign all documents necessary to:

   5.1.Cause the [Collector's Number Plate] currently held in the Husband's sole name to be produced to the office of the Trustee within fourteen (14) days of the date of these orders;

   5.2.Cause the following original documents to be produced to the office of the Trustee within fourteen (14) days of the date of these orders in relation to the [Collector’s Number Plate]:

   5.2.1.current registration papers;

   5.2.2.Roads and Maritime Services (RMS) 'on hold' receipt (if the [Collector’s Number Plate] is not currently on a vehicle); and

   5.2.3.any other documentation recording the Husband's ownership and legal interest in the number plate as requested by TT Company or the Wife from time to time for the purpose of effecting the sale of the [Collector’s Number Plate];

   5.3.Sign the RMS Transfer Right to Display form and any other documents required by the Trustee for the purposes of a sale of the number plate the sale and provide the signed forms to the office of the Trustee within fourteen (14) days of the date of these orders;

   5.4.The Husband and Wife shall co-operate in every way with the Trustee including (without limiting the generality of the foregoing):

   5.4.1.Doing all things and signing all documents as and when requested by the Trustee; and

   5.4.2.doing or saying nothing to hinder or prevent a sale being effected.

   5.5.The parties shall share equally the cost of the Trustee and any advertising expenses, auction costs, taxation costs, legal/conveyancing costs of the sale (if any) and any other reasonable costs of the sale (excluding the agent's commission) and shall pay such costs as and when they fall due.

   5.6.Upon settlement of the sale of the Collector’s Number Plate, the Trustee and the Husband and Wife shall cause the proceeds of the sale to be paid as follows:

   5.6.1.in payment of agent's commissions associated with the sale of the Collector’s Number Plate; and

   5.6.2.…

   5.6.3.in payment of the balance to the Wife by way of partial property settlement as she may direct.

   Sale of Property A

   6.That within seven (7) days of the date of these orders, the Husband shall pay, or cause to be paid the following expenses in relation to Property A:

   6.1.The building insurance premium to insure the property for the next 12 months; and

   6.2.all outstanding rates, water bills and land tax on the joint and individual land tax accounts of both parties (including interest incurred from late payment) owing in relation to Property A as at the date of these Orders.

   7.That the parties do all things necessary and sign all documents necessary to appoint Mr HH of JJ Company as the sole Trustee ("the Trustee") for Sale of Property A within seven (7) days.

   8.That the Trustee shall have the sole power to do the following:

   8.1.select the agent to have conduct of the sale ("the selling agent");

   8.2.negotiate the commission rate with the selling agent; and

   8.3.sign the Agency Agreement with the selling agent;

   8.4.determine the method of sale, listing price and reserve price for Property A in consultation with the selling agent and/or with the assistance of a formal valuation if required by the Trustee;

   8.5.instruct the JJ Company property law team to act on the sale of Property A to prepare the contract for sale;

   8.6.undertake any clearing of vegetation and undertake any minor maintenance or repairs as recommended by the selling agent with the costs to be met from the sale proceeds; and

   8.7.Do all other things necessary to sell Property A for the best price reasonably obtainable.

   9.The Husband and Wife shall co-operate in every way with the agent and Trustee including (without limiting the generality of the foregoing):

   9.1.making the key available to the agent;

   9.2.signing all documents requested to sell Property A;

   9.3.executing a contract for sale in the form prepared by the solicitors having the conduct of the sale and any other documents required to effect the settlement of Property A;

   9.4.allowing inspection of Property A at all times as requested by the selling agent;

   9.5.doing or saying nothing to hinder or prevent a sale being effected.

   10.That upon settlement of the sale of Property A, the Trustee and the Husband and Wife (as necessary) shall do all things and sign all documents necessary to distribute the proceeds of the sale in the following manner and priority

   10.1.Discharge of any mortgages or other encumbrances secured on title of Property A;

   10.2.In payment of any rate adjustments;

   10.3.In payment of the reasonable expenses of the sale, including agent’s commission and advertising expenses, legal expenses and disbursements;

   10.4.In payment of the Trustee's fees for selling Property A; and

   10.5.The balance to be equally divided between the parties.

   11.That pending settlement of the sale of Property A, the Husband shall pay or cause to be paid 100% of all statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to Property A and shall make all such payments as and when they fall due and the Husband hereby indemnifies and shall keep indemnified the Wife in respect of all such liabilities in relation to the property whenever and however arising.

   Valuations

   12.That the Husband shall:

   12.1.complete the 2019 Financial Statements and lodge the 2019 tax return for H Pty Ltd with the Australian Taxation Office by 1 July 2020;

   12.2.complete the 2020 Financial Statements and lodge the 2020 tax return for H Pty Ltd with the Australian Taxation Office by 30 July 2020; and

   12.3.provide the above documents to the Wife within 48 hours of their finalisation.

   13.That the Court record that the parties have agreed to engage Ms P of Q Accounting to undertake a formal valuation of H Pty Ltd ACN … ("H Pty Ltd").

   14.That within fourteen (14) days, the parties shall jointly engage Ms P of Q Accounting pursuant to Part 15.5 of the Family Law Rules 2004 (Cth) to undertake a formal valuation of H Pty Ltd ACN … with such report to address the value of H Pty Ltd as at 30 June 2020.

   15.For the purpose of the above order:

   15.1.Within 7 days of this Order, the Wife shall either confirm her agreement to the release of, or propose amendments to be made to, the proposed joint letter of instructions prepared by the Husband's legal representatives dated 8 July 2019, noting the letter is to request that the valuation be as at 30 June 2020 not 30 June 2018;

   15.2.In the event of agreement being received from the Wife, the Husband shall within 7 days of receiving written confirmation from the Wife of her agreement to the proposed joint letter of instruction, cause his legal representatives to release the joint letter of instruction to Ms P;

   15.3.In the event the proposed amendments are not agreed, the Husband and the Wife shall have liberty to relist the matter on the giving of seven (7) days' notice for the purpose of settling the proposed joint letter of instruction;

   15.4.The parties shall share equally the costs associated with the valuation in accordance with Order 20 below.

   16.That the Court record that the parties have agreed to engage Mr R and S Company to undertake a formal valuation of the real properties listed at Orders 17 and 18 below.

   17.That within fourteen (14) days, the parties shall jointly engage Mr R pursuant to Part 15.5 of the Family Law Rules 2004 (Cth) to undertake a formal valuation of the following real properties:

   17.1.Property T ;

   17.2.Property A NSW ;

   17.3.Property B;

   17.4.Property G ;

   17.5.Property D;

   17.6.Property E;

   17.7.Property U ;

   17.8.Property V;

   17.9.Property W;

   17.10.Property Z;

   17.11.Property D;

   17.12.Property AA;

   17.13.Property BB; and

   17.14.Property CC.

   17.15.Property DD

   18.That within fourteen (14) days the parties shall jointly engage S Company pursuant to Part 15.5 of the Family Law Rules 2004 (Cth) to undertake a formal valuation of:

   18.1.Property EE;

   18.2.Property FF; and

   18.3.Property GG.

   19.For the purpose of Orders 1716 and 18:

   19.1.Within 7 days of this Order, the Wife's legal representatives shall prepare proposed joint letters of instruction to Mr R and S Company and forward same to the Husband's legal representatives;

   19.2.Within seven (7) days of receipt by the Husband’s legal representatives of the proposed joint letter of instructions as provided for in Order 19.1, the Husband shall confirm his agreement to the release of the letter in its original form or propose amendments that he seeks be made;

   19.3.In the event of agreement being received from the Husband, the Wife shall, within 7 days of receiving written confirmation from the Husband of his agreement to the proposed joint letter of instruction, cause her legal representatives to release the joint letters of instruction;

   19.4.In the event the proposed amendments are not agreed, the Wife and the Husband shall have liberty to relist the matter on the giving of seven (7) days' notice for the purpose of settling the proposed joint letters of instruction; and

   19.5.The parties shall share equally the costs associated with the valuations, in accordance with Order 20 below.

   20.That the cost of obtaining the valuations listed at Orders 15, 17 and 18 shall be shared equally between the parties and for this purpose:

   20.1.The Husband shall pay his 50% share of the valuation cost within seven (7) days of an invoice being issued by the valuer;

   20.2.The Wife shall pay her 50% share of the valuation cost as follows:

   20.2.1.The Husband shall do all things necessary to initially pay the Wife's 50% share by way of a shareholder's loan to the Wife from funds held in the H Pty Ltd J Bank account within seven (7) days of an invoice being issued by the valuer.

   For this purpose only, the Wife consents to the Husband withdrawing more than $10,000 from the H Pty Ltd J Bank account in accordance with Order 2.3 of the Orders made 6 September 2019 capped at the sum of $25,000; and

   20.2.2.The Wife shall repay her 50% share of the valuations to the H Pty Ltd J Bank account (via the H Pty Ltd Westpac account) upon receiving the proceeds of sale of ... Number plate or of Property A and the Husband shall ensure that this is reflected in the Wife's shareholder loan account.

   MYOB Data File

   21.By way of enforcement of Order 4 of the Orders made on 6 September 2019 and in addition to that order, within seven (7) days of the date of these orders the Husband shall set up online View access for the Wife to the H Pty Ltd MYOB Accounts including, but not limited to all transactions and reports, banking, cards, inventory, payroll, purchases, sales and the Journal Security Audit Report.

   22.That within seven (7) days of the date of the orders the husband is to provide to the Wife’s solicitors  instructions and a password to allow the Wife to access the MYOB accounts.

   23.The Husband shall be restrained from changing the access privileges or password for the Wife’s access to the MYOB Accounts until the resolution of this matter on a final basis.

   24.….

   Loan Account Ledgers

   25.That within seven (7) days of the date of these orders, the Husband shall provide to the Wife by email a current loan account ledger which covers the period from the date of commencement of the shareholder loans until the current date and includes the following:

   25.1.all transactions for the above period; 

   25.2.a date for each transaction;

   25.3.the amount allocated to each shareholder;

   25.4.the relevant credit card or bank account; and

   25.5.a description of the transaction.

   26.That within fourteen (14) days after the conclusion of each calendar month, the Husband shall provide to the Wife by email an updated loan account ledger as described above.

   Husband's personal items

   27.That within twenty eight (28) days of the date of these orders the Wife is to move the Husband’s personal belongings to Property KK and provide to the Husband by email an itemised list of boxes and their contents.

   28.That within thirty (30) days thereafter the Husband shall organise with Mr VV, the resident owner at Property KK a single collection day and time not more than 30 days thereafter to collect his personal items, currently stored in boxes.

   29.That the Husband's Response filed 4 May 2020 be and is hereby dismissed.

   COSTS

   30.That the Husband pay the Wife's costs of and incidental to this Application.

Evidence

1. The wife relied on:

   ·Amended Application in a Case filed 6 May 2020;

   ·affidavit of the wife filed 6 May 2020 and tender documents; and

   ·Financial Statement of the wife filed 3 June 2019.

2. The father relied on:

   ·Response to an Application in a Case filed 18 July 2019;

   ·Response to an Application in a Case filed 4 May 2020;

   ·affidavit of the husband filed 18 July 2019;

   ·affidavit of the husband filed 4 May 2020; and

   ·affidavit of Mr LL filed 19 July 2019.

The Hearing

1. On 15 June 2020 the hearing was conducted by telephone.  Each of the parties was represented by Senior Counsel.

2. There had been issues between the parties about school enrolment and in relation to the appointment of single expert valuers.  During the hearing I was told that there was general agreement about the issues and invited the parties to provide an agreed minute.  Otherwise, judgment was reserved and the parties were excused on delivery of judgment.

3. Eventually, a minute reflecting the parties’ agreement in relation to school enrolment and valuations was received and those orders are included in the orders set out above.  

Background Facts

1. The husband is 44 years of age and the wife is 43.  They started living together in 2000, were married in 2001 and separated in about August or September 2017.  Their divorce became final in 2018.

2. The parties’ children are X, who was born in 2006 and is aged 13 years and Y, who was born in 2009 and is aged 11 years.

3. X suffers from Autism Spectrum Disorder - Level 2, Generalised Anxiety Disorder, Attention Deficit Hyperactivity Disorder, Separation Anxiety Disorder and Sensory Processing Disorder.  X attends frequent appointments with a psychologist to manage his condition and has recently been approved to receive funding under the National Disability Insurance Scheme.

4. The husband has re-partnered with Ms MM.  The wife does not have a new partner.

5. The husband is a manager and operates a business through H Pty Ltd in which the parties are equal shareholders.  The wife is self-employed through WW Company.

6. The wife continues to occupy the former matrimonial home, Property T.  She lives there with her mother.  The husband and Ms MM live in Property G which was purchased by the husband in July 2019.

7. The husband instituted these proceedings on 13 June 2018 and the wife’s Response was filed on 17 July 2018.

8. On 26 July 2018 interim parenting orders were made by consent, providing that the parties have equal shared parental responsibility for the children and that the children live with the wife. Y was to spend each alternate weekend and overnight on Wednesdays in the other week, with the husband.  The orders also appointed Dr NN as the single expert in the parenting proceedings. 

9. A report by Dr NN was released on 5 November 2018.  On 23 November 2018 the following interim orders were made by agreement:

   1.That by consent and pending further order, orders are made in terms of the typed document headed ‘BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER’ signed by all parties and marked Exhibit 1, set out herein:

   1.That all prior parenting Orders be discharged.

   2.That the parties have equal shared parental responsibility for the children, X born in 2006 and Y born in 2009 (collectively known as "the children").

   3.That X spend time with the father in accordance with X's wishes and the mother shall take all steps necessary to actively encourage X to spend time with the father so as to promote X spending time with the father pursuant to the time that applies to Y as set out in Order 4 hereof.

   4.That Y (and X if he elects to do so) spend time with the father as follows:

   4.1During school terms:

   4.1.1In week 1, and each alternate week thereafter, from the conclusion of school or 3:00pm on Friday until the commencement of school or 9.00am on Monday with such time to commence on 30 November 2018;

   4.1.2In week 2, and each alternate week thereafter, from the conclusion of school or 3:00pm on Wednesday until the commencement of school or 9.00am on Thursday with such time to commence on 21 November 2018;

   4.2For one half of all school holiday periods (except for the school holiday period falling at the end of Term 4 in 2018) as agreed between the parties and failing agreement for the first half of the school holiday periods in 2019 and each alternate year thereafter and for the second half of school holiday periods in 2020 and each alternate year thereafter;

   4.3From 10am on 13th January 2019 to 11am on 28 January 2019;

   4.4On Father's Day from 5:00pm on the Saturday prior to Father's Day until 9:00am on the Monday following Father's Day;

   4.5In the event that the father's birthday occurs on a day when the children are living with the mother, from after school on the father's birthday until before school the following day if it falls on a weekday and from 10.00am on the father's birthday until 10.00am the  following day if it is a weekend or school holiday period, the mother to drop the children to the father at the commencement of the period and the father to return the children to the mother at the conclusion of the period in the event that changeover does not occur at the children's school;

   4.6In the event that Y is living with the mother on Y's birthday, from 3.00pm until 6.00pm on her birthday in the event that her birthday occurs on a weekday, and from 10.00am until 4.00pm on the other day of the weekend in the event that her birthday occurs on a weekend, the mother to drop the children to the father at the commencement of the period and the father to return the children to the mother at the conclusion of the period in the event that changeover does not occur at the children's school; and

   4.7At other times as agreed between the parties in writing.

   5.That the children otherwise live with the mother and in addition, the children live with the mother as follows:

   5.1From the conclusion of school on the last day of the school term in Term 4, 2018 to 10am on 13 January 2019, the father to drop the children to the mother at the front gates of her residence at the commencement of the period and the mother to return the children to the father at the conclusion of the period in the event that changeover does not occur at the children's school;

   5.2In the event that the mother's birthday occurs on a day when the children are spending time with the father, from after school on the mother's birthday until before school the following day if it falls on a weekday and from 10.00am on the mother's birthday until 10.00am the following day if a weekend or school holiday period, the father to drop the children to the mother at the front gates of her residence at the commencement of the period and the mother to return the children to the father at the conclusion of the period in the event that changeover does not occur at the children's school;

   5.3In the event that Y is spending time with the father on Y's birthday, the mother shall spend from 3.00pm until 6.00pm on her birthday in the event that her birthday occurs on a weekday, and from 10.00am until 4.00pm on the other day of the weekend in the event that her birthday occurs on a weekend, the father to drop the children to the mother at the front gates of her residence at the commencement of the period and the mother to return the children to the father at the conclusion of the period in the event that changeover does not occur at the children's school;

   5.4On Mother's Day from 5:00pm on the Saturday prior to Mother's Day until 9:00am on the Monday following Mother's Day, the father to drop the children to the mother at the front gates of her residence at the commencement of the period and the mother to return the children to the father at the conclusion of the period in the event that changeover does not occur at the children's school; and

   5.5At other times as agreed between the parties in writing.

   6.That for the purpose of these Orders:

   6.1School term shall be referrable to the school at which the parties' youngest child who is still attending school, attends;

   6.2The first day of each school holiday period is deemed to commence at the conclusion of school on the last school day of each school term that students are required to attend school;

   6.3The last day of each school holiday period is deemed to be 10.00am the day prior to the commencement of each new school term that students are required to attend school;

   6.4Where changeover occurs on a day during the school holiday period, changeover will occur at 10:00am;

   6.5If the number of nights in any school holiday period as defined by these Orders is uneven, then the children shall spend the additional night with the father, with the father to return the children to the mother at the front gates of her residence at 10am the day after the midpoint in those years ending in an odd number and the mother to deliver the children to the father at 10.00am on the day before the mid-point in those years ending in an even number.

   7.That each party shall ensure the children are afforded privacy when communicating with the other parent.

   8.That the children shall be at liberty to initiate communication with each of the parties by telephone, email and Skype at all reasonable times and all days when the children are in the other party's care and for this purpose each of the parties shall permit and not restrict or interfere with the children initiating telephone calls to and from the other party.

   9.That each of the parties keep the other informed of their current email and residential address and the permanent occupants of the residence and provide written notice of any changes within 48 hours of any such change.

   10.That each of the parties provide to the other a mobile telephone contact number to be used only in the case of emergency communications regarding the children and for the purposes of day to day communications the parties shall use the "2Houses" app.

   11.That each party shall notify the other as soon as reasonably practicable upon becoming aware of the children, or any of them, being involved in a medical emergency.

   12.That each party shall keep the other party informed at the earliest opportunity of all medical and health issues affecting any and all of the children including any and all medical treatment that has been obtained, sought or is required for a child unless the issue is of a minor nature that does not require treatment from a medical/health professional.

   13.That each of the parties will ensure that they facilitate the children attending any medical appointments or extra-curricular activities whilst in their respective care.

   14.That forthwith upon the making of these Orders and continuously thereafter, the parties shall each provide all authorities and shall give all necessary consents to ensure that each child's treating medical practitioners are authorised and directed to communicate with, and provide information and copies of documents directly to, each party upon either party's respective request and at the requesting party's own cost.

   15.That forthwith upon the making of these Orders and continuously thereafter, the parties shall provide all authorities and shall give all necessary consents to ensure that the principal of each child's school (and thereafter each child's school teachers) are authorised and directed to communicate with, and provide information and copies of documents directly to, each of the parties upon either party's respective request and at the requesting party's own cost.

   16.That both parties shall be at liberty to attend all official school functions and events to which parents are invited or expected to attend on special days in which the children, or any of them, may be involved in or participating.

   17.That both parties shall be at liberty at all times to attend all sporting and other extra-curricular activities and events in which the children, or any of them, are involved and participating.

   18.That the parties do all acts and things necessary to ensure the child Y:

   (i)Re-enrols in the classes required by YY Sports to undertake annual exams and to continue her membership, until such time as she clearly expresses that she no longer wishes to make such a commitment; and

   (ii)Re-enrols in piano classes, until such time as she clearly expresses that she no longer wishes to make such a commitment.

   19.That the parties do all acts and things necessary to ensure that the child X is enrolled in piano and sports activities, until such time as X clearly expresses that he no longer wishes to make such a commitment.

   20.That without the written consent of the other party first obtained, each party is restrained from enrolling the children, or any of them, in any sporting and extra-curricular activity (other than those stipulated in Orders 18 and 19 above) which requires the child's attendance and/or participation at times and on days when the child is in the care of the other parent.

   21.Both parties shall be restrained from denigrating the other party or members of the other party's family in the presence and/or hearing of the children.

   22.Pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth) both parties are permitted to temporarily take and send the children from the Commonwealth of Australia for the purposes of overseas travel and holidays provided that:

   22.1The travel takes place, unless otherwise agreed between the parties in writing, during school holiday periods in which the children are in the care of the travelling parent pursuant to these Orders;

   22.2The party proposing overseas travel gives to the other party, at least 6 weeks' notice in advance of the proposed travel, written details of the names and places outside of the Commonwealth of Australia where it is proposed the children will be travelling (being countries, cities and towns);

   22.3The party proposing overseas travel gives to the other party, at least 6 weeks in advance of the proposed travel, written details of the proposed departure and arrival dates to and from each country to which it is intended travel will occur;

   22.4Not less than 3 weeks in advance of the proposed travel, the party taking or sending the children outside of the Commonwealth of Australia must provide to the other party for each child a copy of all written itineraries, including flight numbers;

   22.5Not less than 3 weeks in advance to the proposed travel, the party taking or sending the children outside of the Commonwealth of Australia must provide to the other party written notice of the contact telephone numbers and addresses of all places where the children will be staying overnight when outside of the Commonwealth of Australia;

   22.6The party proposing overseas travel must ensure each child travelling outside of the Commonwealth of Australia is covered by a valid travel insurance policy for the duration of travel outside of Australia and a copy of such policy should be provided to the other party not less than 2 weeks prior to the proposed travel; and

   22.7The travel proposed is not to a country that is subject to a Level 2 or above warning, per smarttraveller.gov.au at the time of travel.

   23.That each of the parties do all things and sign all documents necessary to ensure that the children have, at all times, a valid Australian passport and each of the parties will be responsible for meeting one-half of all costs associated with complying with this Order.

   24.For the purposes of effecting changeover pursuant to these Orders, the following will apply:

   24.1When changeover occurs at the conclusion or commencement of school, changeover shall occur at each child's school;

   24.2For all other changeovers, the mother shall deliver Y (and if he wishes to spend time with the father, X) to the father's residence at the commencement of the father's time and the father shall deliver the children to the front gates of the mother's residence at the conclusion of the father's time with the children.

   25.That the parties shall do all acts and things necessary to ensure that the children attend all agreed extra-curricular activities inclusive of practice, rehearsals, training, competition and performances when living with them or spending time with them pursuant to these Orders.

   26.That the mother shall ensure that X continues to attend upon Dr PP, Dr QQ and Ms SS of RR Clinic in accordance with their recommendations and the parties shall be granted leave to provide a copy of the report of Dr NN dated 24 October 2018 to those practitioners.

   27.That each of the parties shall ensure that X is administered all medications prescribed by Dr PP whilst X is in their respective care.

   28.That subject to Order 26, the father shall continue to attend upon X's health practitioners referred to in that Order in accordance with their recommendations.

   29.That each of the parties pay their own costs of and incidental to the interim proceedings.

10. The wife applied for interim financial orders and on 6 September 2019 Rees J made the following orders:

    1.That pursuant to section 114 of the Family Law Act 1975 (Cth) (“the Act”) and until further Order, the Husband, in his capacity of Director of H Pty Ltd and/ or by his agents be restrained by injunction from calling for, holding, attending and voting in favour of any resolution at any meeting in relation to H Pty Ltd where it is proposed that all or any one of the following things be done:

    1.1To declare any further dividends without the consent of the Wife;

    1.2To sell, dispose of, transfer or otherwise part with possession or control of any shares owned by the parties or either of them, registered in the name of the parties or either of them or held by any other person upon trust for the parties or either of them;

    1.3To issue any or further share in H Pty Ltd;

    1.4To alter the rights attaching to any shares or any issued in H Pty Ltd;

    1.5To resign from any directorship or position of office or causing, suffering or permitting the appointment of any further or other directors or office bearers;

    1.6To sell, mortgage, charge, encumber or otherwise deal with the assets of H Pty Ltd, other than in ordinary course of business save and except as regulated by these Orders; and

    1.7To cause, suffer or permit H Pty Ltd to increase any existing liability or to incur any further liability secured upon any real or personal property owned by the parties or either of them and/ or by H Pty Ltd;

    without first obtaining the Wife's written consent or an Order of the Court.

    2.That pursuant to section 114 of the Act and until further Order, the Husband, in his capacity of Director of H Pty Ltd and his agents be restrained by injunction from:

    2.1entering into any further loan debit accounts on IOF's behalf in excess of $10,000 without the prior written consent of the Wife or by Order of this Court;

    2.2further drawing down on the loan account the Husband holds with H Pty Ltd without the prior written consent of the Wife or by Order of this Court;

    2.3making any transfers from the H Pty Ltd Westpac Account and/or H Pty Ltd J Bank Account in excess of $10,000 without the Wife's prior written consent, other than in the ordinary course of business; or

    2.4acquiring any plant or asset on behalf of H Pty Ltd that is valued at over $10,000 without the Wife's prior written consent, other than in the ordinary course of business.

    3.That the Husband do all things necessary to provide the Wife with, and maintain at all times online and hard copy viewing access to the following accounts held by H Pty Ltd:

    3.1the H Pty Ltd Westpac Account;

    3.2the H Pty Ltd J Bank Account; and

    3.3Any other bank account in the name of H Pty Ltd and/ or through which H Pty Ltd transacts.

    AND the wife is restrained from operating on any account of H Pty Ltd or conducting any transaction on any account of H Pty Ltd.

    4.That no later than fourteen (14) days after the conclusion of each calendar month, the Husband shall provide the following material to the Wife in relation to H Pty Ltd:

    4.1MYOB (or any other software used by H Pty Ltd) accounts for the past month;

    4.2Directors and shareholders loan account statements/ledgers;

    AND the Wife shall thereafter be at liberty to request that the Husband provide her with source documents relevant to the transactions identified in the accounts and ledgers provided and the Husband shall provide such material within seven (7) days of receiving any such request from the Wife.

    5.That no later than twenty-one (21) days after the conclusion of each financial year, the Husband shall provide the following material to the Wife in relation to H Pty Ltd:

    5.1management accounts for H Pty Ltd for the past financial year; and

    5.2commission statements for H Pty Ltd clearly delineating recurring revenue and one-off revenue for the past financial year.

    6.That forthwith upon the making of these Orders the Wife do all acts and things and sign all documents necessary so as to cause the Husband to be appointed as attorney to manage and deal with Property A without requiring the consent of the Wife, including but not limited to attending to the following:

    6.1That the husband be appointed to manage Property A and to make all decisions relating to the management of the property;

    6.2That the husband be responsible for the payment of all outgoings in relation to Property A, whether incurred before or after the making of these Orders, and shall indemnify the wife in relation to all such outgoings;

    6.3That the husband shall be solely entitled to any rent received from letting Property A;

    6.4That the husband shall indemnify the wife in respect of any liability for tax in respect of rent received by him for Property A.

    7.That forthwith upon the making of these Orders the Wife do all acts and things and sign all documents necessary so as to cause the Husband to be appointed as attorney to manage and deal with Property B without requiring the consent of the Wife, including but not limited to attending to the following:

    7.1To negotiate the terms of the current lease in place and any future lease for Property B;

    7.2Manage Property B including but not limited to retaining a commercial real estate agent of his choosing to assist with the leasing of the property, carrying out necessary repairs on the property, managing the payment of outgoings and the release of the rental income.

    7.3Act as the representative for Property B on the strata committee.

    8.That the Husband pay, as they fall due, all expenses associated with Property B including but not limited to management fees, council and water, necessary repairs and maintenance cost, and land tax, and the Husband shall be permitted to deduct one half of all such expenses from the wife's share of her rental income by way of reimbursement and provide to the wife a copy of the invoice and a breakdown as to how the amount has been quantified.

    9.That the Husband do all acts and things to cause half of the rental income of Property B, after the payment of the wife’s half share of management fees, and cost of repairs and maintenance, council and water rates, to be paid  to an account nominated by the Wife and the balance to an account nominated by the Husband.

    10.That the parties shall have equal use of the Time Share, Town N , during the time that the parties are entitled to stay at the property, being Week 1 and  Week 52 each year and to give effect to this Order the following shall apply:

    10.1The husband shall be entitled to have exclusive use of Week 52 of the Time Share, Town N and during that week the Wife is restrained from entering and/or approaching the Time Share, Town N during that period;

    10.2The Wife shall be entitled to have exclusive use of Week 1 of the Time Share,Town N  property and during that week the Husband is restrained from entering and/or approaching the Time Share, Town N during that period;

    10.3That the parties shall equally pay all rates and other outgoings in relation to the Time Share, Town N as and when same fall due for payment.

    11.That within 7 days of the date of these Orders the Wife shall advise the Husband in writing of the motor vehicle she wishes to acquire, such motor vehicle to be at a cost of not more than $70,000 (including on road costs and taxes).

    12.That within 21 days thereafter the Husband shall in his capacity as director of H Pty Ltd do all things necessary to acquire the said motor vehicle so nominated by the Wife, such car to be registered in the name of H Pty Ltd and to make such motor vehicle available to the Wife in exchange for the motor vehicle presently driven by the Wife (being Motor Vehicle 1).

    13.That pending the exchange of motor vehicles the Wife must do all things necessary to keep the motor vehicle presently in her possession in good order and repair and she shall make the vehicle available to the Husband to facilitate any trade in valuation in respect to the new vehicle

    14.That the wife shall be responsible for the cost of expenses associated with the motor vehicle including the insurance costs, registration costs, maintenance and petrol and indemnifies the Husband and H Pty Ltd in respect to all expenses associated with the motor vehicle.

    15.That the Husband will promptly upon receipt by him of the registration papers, forward such documentation to the Wife or as she may otherwise direct in writing.

    16.That forthwith upon the making of these Orders the Husband do all acts and things to sell the Collector’s Number Plate for the best price reasonably obtainable and to give effect to that Order the Husband shall do the following:

    16.1Engage Mr K as broker to sell the Number the Collector’s Number Plate;

    16.2advise the Wife's lawyers of all offers received to purchase the number plate and keep the Wife informed of all steps to  sell the  ... number plate, including providing the wife on not less than a fortnightly basis the progress that is being made in respect to the sale of the Collector’s Number Plate.

    16.3Upon settlement of the sale of the Collector’s Number Plate the Husband shall cause the proceeds of sale to be paid as follows:

    16.3.1in payment of agents’ commissions and sale costs associated with the sale of the Collector’s Number Plate;

    16.3.2in payment of the balance to the wife by way of partial property settlement.

    17.That the Independent Children’s Lawyer have leave to relist the Husband’s Application in a Case seeking parenting orders for directions before a Registrar.

    IT IS NOTED

    18.That the wife gives an undertaking as to damages in the following terms:

    I undertake to the Court:

    Pursuant to Rule 17.06(4) of the Family Law Rules 2004 (Cth):

    a)to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as the Court may direct, to any person, whether or not that person is a party, adversely affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and

    b)to pay compensation referred to in paragraph (a) to the person there referred to.

    And I agree to be bound by this undertaking until excused by the court.

Interim Parenting Dispute

1. The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

The law as to parenting

1. Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in subsections 60CC(2) and 60CC(3) respectively.

2. The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility.  The presumption may not apply but if it does apply, it can be rebutted.  If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time.  Findings are made by reference to what is in the child’s best interests.

3. Here, orders are sought on an interim basis.  In Goode & Goode (2006) FLC 93-286 (“Goode”) the Full Court addressed the practicalities of interim parenting determinations in the context of what were recent amendments to Part VII of the Act. At 80,901 the Full Court said:

   68.... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

4. In Eaby & Speelman(2015) FLC 93-654 the Full Court (Thackray, Ryan and Forrest JJ) noted the reference in Goode to disputed facts in interim hearings:

   18. ...that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

5. In SS & AH[2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:

   100. ...

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

6. Here the interim parenting issues are raised despite the fact that there are parenting orders in place.  Although the general law principle of res judicata does not apply to parenting cases, there is protection against repeated parenting litigation.  In Rice & Asplund (1979) FLC 90-725 the Full Court dealt with an appeal from a parenting decision which reversed an order made three years before. As to revisiting an earlier parenting decision, in dismissing the appeal, Evatt CJ, with whom Pawley SJ and Fogarty J agreed, said at 75,680:

   ….

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.

7. Whether described as a rule or a principle, the approach expressed in Rice & Asplund has been consistently applied by this Court. 

8. The parties are within their rights to challenge any or all of the orders of 23 November 2018.  They could have sought to review the exercise of power by the registrar.  However, outside that power and outside issues of machinery orders or a stay, the parties do not have an unfettered right to seek to re-agitate issues that were addressed or that could have been addressed by those orders.

9. There needs to be some changed circumstance before the parenting arrangements for X and Y should be re-opened on an interim basis.  A changed circumstance might arise where the living arrangements of the parents themselves have significantly changed or where, for example, there are new issues of violence, substance abuse or the physical or mental health of a parent or child.  The requirement for significant change is perhaps even more important where the existing arrangements resulted from the parents’ agreement rather than being imposed by the Court.  Here, on 23 November 2018, the parties designed a very detailed regime and represented to the Court that it was in their children’s best interests.  The Court relied very much on the parents’ agreement.  Australian family law is designed to promote and prefer agreed decision making by informed parents.  Something significant needs to change if the Court is to impose new orders over the orders settled by the parents. 

10. There is an obvious change with the need to make arrangements for Y’s schooling from the start of the 2022 school year.  As I have said, the parties have agreed to orders with regards to her enrolment in high schools of their choice, although the question of which school she will ultimately attend is still at large.  The parties do not agree about the need to change the existing orders for Y’s living arrangements.

11. The husband largely relies on evidence of Y’s wishes.

The parties’ proposals

1. The husband seeks to increase his time with Y from four nights to six nights each fortnight by extending alternate weekends so that the time with him runs from Wednesday afternoon (instead of Friday afternoon) to Monday morning.

2. The mother opposes that change.  The Independent Children’s Lawyer (“ICL”) does not support the change proposed by the father.

Section 60CC considerations

1. Section 60CC of the Act specifies certain considerations.

2. The husband does not rely on most of the s 60CC considerations. He does not, for example, rely on either of the primary considerations to support his application.

3. Much of the husband’s evidence supports a conclusion that the current living arrangements are enjoyable for Y and highly successful. 

4. Firstly, the husband says that he seeks the change to “provide consistency and routine with Y”.  Secondly, he says that since at least the middle of 2019, Y has regularly and frequently expressed to him a strong desire to spend additional time in his care.  At paragraphs 50 – 55 of his affidavit the father gives evidence about matters that are critical of the mother, although the oral submissions made on his behalf focussed more on the benefits of increasing Y’s time with him rather than those that might result from reducing her time with her mother.

5. The husband does not provide any evidence about the improvements in consistency and routine that would come with his proposed orders and such an improvement is not obvious to me.  Again, the husband says that the increases in his time with Y, from July and then November of 2018, have been working well.  Of course, that does not necessarily mean that further increases will also work well.

6. The husband gives evidence that Y has expressed to him a wish to spend more time with him.  He says that Y often asks him to speak to the wife about increasing the time with her father.  The husband has responded by writing to the wife’s solicitors about increasing his time. 

7. Importantly, the wife, too, gives evidence about Y’s expressed views.  The wife says that Y has not told her that she wants more time with the husband.  The wife says that on return from school holiday time with the husband in April 2020, Y said that she needed more time with her mother.  The wife says that on occasions, Y has said that she misses her when she is with the husband.  The wife has heard Y say that she is happy spending time with the husband but she also tells the wife on Monday afternoons after being with him, that she has missed her mother a lot.  

8. As the husband criticises her, the wife is also critical of aspects of the husband’s parenting.  For example, she is critical of the husband failing to take opportunities to attend extracurricular events, including an end of year piano concert in November 2018; parent teacher interviews in April 2019; school open day and book parade in August 2019; and school and dance school performances on 24 June, 27 June, 9 August and 21 August 2019.  She gives examples of occasions when the husband’s partner has driven, picked up or cared for Y after school in the father’s stead.

9. The husband says that during a call-over conducted by the Chief Justice, the ICL supported an increase in the time Y spends with him.  The ICL disagrees.

10. The parties give different evidence about Y’s expressed wishes.  It is possible that each of them is correct.  As was alluded to in the wife’s case, Dr NN earlier reported that it was likely that Y had engaged in appeasing behaviour with both parents.  It is possible that the reported expressions resulted from Y trying to please each of her parents.  I am not in a position to make a finding about Y’s expressed wishes that would support the husband’s application. 

11. Even if the husband’s evidence about Y’s views is correct and that of the wife is not, there is still the issue of the weight to be given to Y’s wishes.  Dr NN’ comment about appeasement suggests that there might be a reason to give less weight to views she has expressed to the parties than might otherwise be given.

Conclusion

1. Looking at “the less contentious matters, such as the agreed facts and issues not in dispute”[1] the evidence is that the current arrangements are meeting Y’s needs.  There is no evidence of a significant change of circumstances.  I will make no changes to the living arrangements facilitated by the current orders.

   [1] See Goode & Goode above.

Interim Financial Dispute

1. I will deal with the financial issues in the order they were raised by the parties.

2. The husband’s application refers to seeking the discharge of Orders 1, 2 and 16 of the orders of 6 September 2019.  Senior Counsel for the husband said that the husband no longer pressed for the discharge of Orders 1 and 2.

The discharge of Order 16

1. At Order 16, Rees J provided for the husband to sell the Collector's Number Plate.  Her Honour was faced with an agreement between the parties that the plate would be sold.  The controversies before her Honour related to the wife’s application for interim property settlement.  Rees J found that the only asset available for immediate sale that the parties agreed to sell was the number plate.  There were shares in Company M but the wife opposed their sale.  As to proceeds of sale of the number plate, the wife had a claim greater than their likely value and the husband sought that the proceeds be evenly divided.  Rees J decided that the wife should have the entire net proceeds.  For reasons that are not satisfactorily explained, the husband did not sell the number plate.  In circumstances where he was not required to do so, he conferred with the wife about whether he should accept offers to purchase the plate and when the wife did not agree on the offers made, he did not accept those offers.  Since then the husband has changed his mind about selling the plate.  The husband’s father was born in 1947 and he is ill.  The husband now wants to retain the plate.

2. It is submitted for the wife that, orders having being made to sell the plate, it is no longer possible to interfere with those orders short of an appeal or application under s 79A of the Act. The argument runs that the Court’s power under s 79 in respect of the number plate has been spent by the orders of 6 September 2019. In aid of the wife’s contentions, I was referred to the Full Court decision in Gabel & Yardley (2008) FLC 93-386 where the Full Court discussed the issue of revisiting an earlier interim or partial s 79 order. The particular issue before the Court related to the adjournment of issues about superannuation in the period prior to amendments to the Act which permitted orders directly affecting superannuation – splitting orders et cetera. However, in Gabel & Yardley the majority of the Full Court (Bryant CJ & Coleman J, with whom Finn J substantially agreed) said:

   66.In Hickey and the Attorney-General for the Commonwealth of Australia (Intervenor) [2003] FamCA 395; (2003) FLC 93-143 the Full Court accepted that:

   Although there may be partial or interim orders (section 79(6) of the Act) ultimately there is only one exercise of power under section 79 in respect of the property of the parties, even though that single exercise of power may be reflected in a complex order of many paragraphs or clauses, each dealing with a different item of property and some dealing with questions of implementation.

   67.Logically, until that “one exercise of power under s 79” has been completed, most obviously by the making of orders with respect to the totality of the “property” of the parties to the marriage or either of them, the power has not been spent or exhausted, but exercised partially or in an interim manner.

   68.It remains to consider the second issue raised on behalf of the wife. That concerns whether the 1999 orders for settlement of property could now be varied other than by consent or pursuant to section 79A of the Act. Learned senior counsel for the wife aptly described this issue as the “non-reversibility” argument. There is logical force in the submission of learned senior counsel for the wife that the 1999 orders did not deprive the Court of the power to vary any of the orders for settlement of property then made. It would be surprising if the Court could adjourn proceedings pursuant to section 79(5) of the Act, but be unable to revisit orders made with respect to the property of the parties pursuant to section 79(6) of the Act when the hearing of the proceedings resumed. As was also submitted, it is difficult to see how the Court could exercise its residual power with respect to the husband’s superannuation interest in a manner that satisfied the requirements of section 79(2) if the capacity to revisit the earlier orders made settling property was lacking.

   69.As we have earlier explained, in our view the focus of our attention should be whether or not the power to make orders pursuant to section 79 has been exhausted. Unless it has, we see no basis in law or logic for concluding that further orders may not be made with respect to property the subject of earlier orders. There can be little doubt that the exercise of power under section 79 involves the exercise of discretion by reference to the provisions of Part VIII of the Act. It would be surprising if, in circumstances clearly involving less than such an exercise of discretion, orders made pursuant to the power conferred by section 79(6) of the Act could not be revisited and altered. Indeed, there may be cases where the Court could only exhaust the power conferred by section 79 in a “just and equitable” manner as required by section 79(2) of the Act by altering an earlier order with respect to the property of the parties or either of them as learned senior counsel for the wife submitted. If the Court could not do so, there may be cases where the Court was precluded by section 79(2) from making orders which exhausted the power conferred by section 79 of the Act. To so construe section 79 of the Act would in our view be to prefer a construction “that would not promote” the “purpose or object underlying” that provision of the Act to one that would promote that purpose or object, contrary to the principle of statutory construction expressed in section 15AA of the Acts Interpretation Act 1901 (Cth).

   70.In Harris and Harris (supra) it was accepted that the Court had power “in a proper case in section 79 proceedings to make what may be conveniently described as an interim order, that is an order dealing with some of the property of the parties prior to the final hearing” (page 79, 929). Their Honours identified three areas which required consideration in the exercise of that power. Nowhere did the Full Court there suggest that orders made prior to the power to make orders for settlement of property being exhausted were incapable of variation at the final hearing of the proceedings. The suggestion that one of the matters a judge making orders prior to the final hearing of proceedings for settlement of property needed to be satisfied of being “that the order which is contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so” appears to acknowledge the potential for that to occur.

   71.The facts in Harris (supra) differ significantly from those in the present case where orders were made following a hearing, but the matter was adjourned in relation to one item which was not then capable of determination or division, that being the husband’s superannuation interest. Nevertheless, we consider the principles to be the same, the issue being whether or not the orders were interim in the sense that they were made pending the final hearing, or whether they were partial in the sense that they altered interests in property after a hearing in circumstances where it was anticipated that there was further property to be dealt with at some future time, the power of the Court to alter interests in property and make orders pursuant to section 79 not being finally exhausted until those further determinations were made. In the circumstances of this case, that would be when the Court was in a position to make an order in relation to the adjourned issue, the vesting of the husband’s superannuation interest determining when that was.

   72.It follows in our view that when the Court finally determined the proceedings which had been adjourned, whether categorised as “partial”, “interim”, or otherwise, earlier orders altering property interests could be varied or reversed without resort to section 79A of the Act or an appeal, the power to make such orders not having been “spent” or “exhausted”.

   73.The circumstances in which the Court would be likely to vary or reverse earlier orders altering interests in property will depend on the circumstances of the individual case. Matters such as the disposition of property transferred, the length of time since the original orders were made, the extent to which the parties had acted in reliance upon the orders and whether the orders were made by consent or otherwise would all be matters relevant to the question of whether any variation of partial orders affecting the parties’ interests in their property should be made. Nevertheless, if there is only one exercise of power under section 79, albeit that occurs in a series of stages and by the making of a number of orders, the orders must ultimately be just and equitable as between the parties. A consideration of justice and equity would take into account the matters to which we have referred.

   74.To the extent that the decision of the High Court in Mullane (supra) may appear to create an obstacle to the acceptance of the contentions of Senior Counsel for the wife, we are not persuaded that such is the case.

   75.In the passage to which we have earlier referred, the High Court considered the nature of an order under section 79 and said further in that regard:

   The effect of treating the order as if it had been made under s. 79 is that, subject to a limited jurisdiction to vary it or set it aside, the power of the Family Court to make an order under s. 79 is treated as having been exercised and as exhausted by that notional exercise. The limited jurisdiction to set aside or vary such an order is that conferred by s. 79A and exists only in special circumstances, namely, where the court is satisfied that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance: s. 79A, and cf. In the Marriage of Taylor [(1977) 30 FLR 17; 15 ALR 266)] and on appeal sub nom. Taylor v. Taylor [(1979) [1979] HCA 38; 143 CLR 1]; In the Marriage of Branchflower [(1979) [1979] FamCA 76; 44 FLR 16]. It is common ground that s. 79A has no application in the present case.

   76.The issue in Mullane (supra), was whether a particular order had the effect of altering the interests of parties to a marriage in the property of those parties rather than whether the power to make such order had thereby been exhausted. Having concluded, for reasons which the Court explained, that the order did not alter the parties’ interests in property, no consideration of the nature of the power created by section 79 of the Act arose. Significantly, the Court referred to whether or not the power had been “exhausted”. In this case, there seems little doubt that the power to make orders under section 79 had not only not been exhausted but had been specifically preserved. We perceive no logical difficulty with accepting, as we must, that once the power to make orders under section 79 has been “exhausted”, further orders can only be made in the circumstances described by the High Court in the passage we have cited and concluding that, if the power has not been exhausted, it may be exercised to make orders with respect to earlier orders.

   77.For the reasons we have recorded, we conclude that the orders altering property interests made on 18 August 1999 are capable of variation in the exercise of the Court’s discretion pursuant to section 79 of the Act at the final hearing of the adjourned proceedings.

1. The power in s 79 is to change interests in property. There was no such change effected by the orders made by Rees J on 6 September 2019. The Collector's Number Plate was, and remains, the property of the husband. Rees J was told that the parties agreed to that plate being sold and she ordered the husband to sell it. The order went on to provide for the disposition of the net proceeds of sale, in favour of the wife. There is no sense in which the Court’s power to make orders about the number plate or its proceeds was exhausted by her Honour’s orders. The obligation to make a settlement that is just and equitable overall continues until the last element of the orders are made.

2. If there is to be a settlement, the Court is obliged to make a just and equitable settlement. In my view, the number plate not having been sold, the Court retains power to make an order that affects the ownership of the number plate or of the net proceeds of sale of the number plate, as the case may be, without recourse to an appeal or s 79A.

3. The wife is sceptical about the husband’s change of mind.  I gather that she sees it as yet another example of the husband acting to frustrate her desire to progress the proceedings and to thwart her attempt to access funds in the short term.  She might be right, of course, but it is also possible that the husband is genuine.  Where the circumstances are unclear, I am not permitted to make the finding the wife requires.

4. The husband says he wants to retain the number plate on a final basis.  Selling the plate would frustrate that outcome.  I will not make further interim orders for the sale of the plate.  Of course, if there continues to be an issue about the retention or sale of the number plate at the final hearing, that question can be revisited then.

The sale of Property A

1. Before Rees J, there was no agreement about the sale of Property A and no order was made for its sale.  The parties now agree about a sale.  The husband seeks that he have carriage of the sale and that the net proceeds of sale be equally divided between the parties.  The wife agrees that the property be sold and that the net proceeds of sale be equally divided.  However, the wife seeks that a trustee for sale be appointed and that the husband pay certain outgoings on the property. 

2. The parties have a very poor relationship.  The failure of the husband to sell the number plate demonstrates the problem.  I will order the appointment of a trustee for sale.  Ideally both parties would have confidence in the trustee or at least, they will have no reason to suspect his or her motives or conduct.  I will order that they agree on the trustee.  If that is not possible within 14 days or such later time as the parties might agree, the wife shall nominate three candidates and the husband will select one of them and that person shall be the trustee for sale.

3. I will otherwise make the orders in the format sought on behalf of the wife.  Rather than naming the solicitor to act on the sale, as with the agent, I will leave that to the trustee.  The orders sought by the wife at paragraphs 6 and 11 seem to overlap and in any event they appear to cover the same territory as order 6.2 made by Rees J.  I will not address the issue covered by the existing order.

The declaration by H Pty Ltd of a dividend of $550,000 to each of the parties

1. The husband proposes that dividends issue for the purposes of the parties meeting their personal income tax, including the tax payable on the dividends paid in the 2019 financial year and that the balance be retained to meet the tax payable in the 2020 financial year.

2. The wife strongly opposes the declaration of a dividend in those terms.  The wife seeks the issue of a limited dividend for the purposes only of putting the parties in funds to meet the valuation costs for these proceedings.

3. Again this echoes a dispute that existed before Rees J.  Her Honour recorded:

   H Pty Ltd DIVIDENDS

   25.      The wife seeks:

   •An order that H Pty Ltd pay to her the fully franked dividend of $1,488,800 which H Pty Ltd declared on 28 June 2019;

   •An order that H Pty Ltd pay the fully franked dividend of $1,488,800 which it declared to the husband and that the husband, from those funds, pay any sums lent to him by H Pty Ltd, outstanding land tax on Property B, outstanding rates and water rates and insurance owed in relation to Property A and the ongoing expenses related to Property A;

   •An order that the husband file an affidavit explaining movements in the loan accounts of H Pty Ltd which, she asserts, substantially increased her indebtedness;

   •In the event that she does not receive the dividend of $1,488,800, an order that the husband pay any tax assessed by virtue of her having been declared entitled to the dividend.

   26.The husband opposes the making of orders as sought by the wife and seeks an order that, upon the issue of the income tax assessments for each party for the year ended 30 June 2019, H Pty Ltd declare a dividend sufficient to pay the tax assessed.

   27.I accept the submission on behalf of the husband that these are matters which can be dealt with at trial.

4. At times, each of the parties has sought that dividends be declared but they disagree about the timing, the amount, the application of proceeds and the approach to deal with the taxation implications.  I will take the same approach as Rees J.  In my view these are not matters for the Court, let alone for an interim hearing.  The Court’s role is to identify the property of the parties and, if a settlement is appropriate, to change the parties’ interests in that property so as to achieve a just and equitable settlement.  It is not part of the Court’s role to run the business or its accounts, to invest money in the business or to draw income or capital out of the business.  If there is a financial advantage for the parties in declaring a dividend then the party proposing it should be able to satisfy the other party of the benefits of that course.  If the parties wish to have the Court involved in the declaration of dividends, they might give consideration to applying for the appointment of an independent manager or a receiver manager.

The sale of Company M shares

1. The husband seeks that:

   6.The husband and wife forthwith do all acts and things necessary to sell the shares held in their joint names in Company M.

   7.Upon the sale of the Company M shares, the parties shall disburse the proceeds of sale equally between them and shall be responsible for any capital gains tax arising with respect to the sale of those shares incurred in their individual names.

2. The wife wants to retain the shares in the final settlement.  The wife does not want to sell the shares because of her brother’s involvement in that company, because the shares lost value due to the consequences of COVID-19 and because Company M is a very successful company. 

3. The effect of the authorities is as follows: It is usual and preferable that there be one final settlement of property. However, property settlement orders can be made in parts and can be made on different days. There needs to be a reason for an interim property order to be made but it does not have to be a compelling reason. As with an application for final property settlement orders, an application for interim property settlement involves an exercise of power under s 79 of the Act. That, in turn, involves some preliminary assessment about the pool of assets, about the parties’ contributions and about any adjustments that might be made by reason of ss 79(4)(d), (e), (f) and (g). The Court must consider whether it would be just and equitable to make any distribution of property, and if so, the particular distribution must itself be just and equitable. Because interim decisions are usually made without the ability to test any evidence, the interim order must either be conservatively within the property settlement claims of the parties, and/or an order that can be adjusted or reversed on a final hearing.[2] 

   [2] Harris & Harris (1993) FLC 92 378; Hickey and Hickey and the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; and Strahan & Strahan (2011) FLC 93-466.

4. Given the restraint on interim property settlements, it is not appropriate to make an order for the sale of the Company M shares where the wife wants to retain them.  The shares fall into a slightly different category than the number plate that the husband wants to retain because shares in Company M are not unique and if they were sold, they could be replaced in the future.  Nevertheless, selling the shares at a time when their value is down may realise a significant loss. 

5. The wife wants to retain the Company M shares and in my view, the Court should not require their sale on an interim basis.  Of course, the wife might change her mind about that, allowing the shares to be sold.  Otherwise the issue can be left to the final hearing or agreement.

Conclusion

1. I was told that the parties have net assets with a value of about $15 million.  Nearly half of that sum is represented by the former matrimonial home occupied by the wife.  Over two interlocutory hearings the parties have required Court assistance about how to raise cash to pay their debts, including tax and legal fees.  At least part of these proceedings have been necessitated because the parties did not comply with or enforce the first set of orders that were made and changed their minds about what they would like done.  Substantial legal costs have been incurred in prosecuting the interim proceedings. 

2. There is no doubt that the tax and the legal fees will be paid, sooner or later.  In those circumstances, I wonder about the utility of the interlocutory proceedings.  It is not for the Court to raise funds for the parties.  The parties know far better than the Court what assets they have and what options there are for raising funds.  For example, I understand that there are two other number plates and I was not told of any particular emotional attachment to them.  Could either or both of those plates be sold?  I imagine that for a fraction of the costs of repeated interlocutory proceedings, parties who own net assets worth in the order of $15 million would be able to make the necessary arrangements to fund their outgoings while they sort out a property settlement.

The husband’s personal items from Property T

1. The husband seeks access to the former matrimonial home for the purpose of identifying and removing his personal property.  The wife objects to the husband coming onto the premises whether she is present or not.  It is her evidence that in August 2019, immediately following receipt of a similar request from the husband, she boxed up the husband’s personal belongings and offered them for collection within a week or two.  She says that the husband did not respond to that letter and the boxes have never been collected.

2. The wife says that there has been a history of the husband demanding items from the former matrimonial home with little notice and occasions when he entered Property And removed items of value while she was away.

3. The remarkable fact is that the husband left Property T on 1 September 2017 and has presumably been without the personal items in question, since then. 

4. There are merits on each side of the argument on this issue.  The wife is entitled to the quiet enjoyment of her present accommodation and the husband is entitled to his personal possessions.  As with much of the parties’ dispute, the facts are suggestive of a degree of bloody mindedness but I cannot simply reject the position taken by one of the parties and make orders in favour of the other.  One would imagine that there is an available solution to this issue that respects those two interests.  The husband could attend at the home and mark and catalogue the items that he wants to retain.  If the wife did not wish to be present, that attendance could be undertaken in the presence of a delegate or delegates of the wife.  Without express agreement, the husband would not remove any item from the home.  There may then be agreement about the husband receiving at least some of the items and a process could be devised to resolve the issue of any disputed items.  Again, the parties and their lawyers should resolve those issues.  After nearly three years, I gather that the issue is not urgent, particularly if the husband has not taken the items that have been boxed and available from the wife for nearly 12 months.  If necessary, the matter can be dealt with at a final hearing, where the substance of the parties’ positions can be fully explored and their evidence tested.  Hopefully that will not be necessary. 

5. I will make no orders about the husband having access to the former matrimonial home.  In the meantime, the husband might give consideration to receiving the boxed items. 

6. I turn to those of the issues raised by the wife that have not been agreed or dealt with above.

Property A outgoings

1. The wife seeks an order that pending settlement of the sale of Property A, the husband shall pay, or cause to be paid, 100 per cent of all statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to Property A and shall make all such payments as and when they fall due and the husband hereby indemnify and shall keep indemnified the wife in respect of all such liabilities in relation to the property, whenever and however arising.

2. This issue has already been addressed.  Order 6.2 made on 6 September 2019 provides that the husband is responsible for the outgoings on Property A and for indemnifying the wife in relation thereto.

The costs of the valuations

1. By paragraph 20 of her minute of orders, the wife seeks machinery orders in respect of the cost of the valuations agreed to by the parties.  Although the parties agreed about the appointment of valuers, the minute provided no indication as to how the parties intended to split the costs of those valuations.  I will make an order that, at least in the first instance, the costs be met equally by each party, with liberty for the parties to take another course if that arrangement is agreed upon in writing.

2. The parties did not agree to paragraph 20 of the wife’s minute and the question of the wife’s proposed mechanism for meeting those costs is apparently unresolved. 

3. The wife proposes that the husband pay his share of the valuation costs within seven days of receipt of an invoice from the valuer.  She seeks that the husband facilitate her raising her share of the costs by way of a shareholder loan and she seeks an order requiring her to repay that loan from the proceeds of sale of the number plate or Property A, as the case may be.

4. As was referred to in the submissions on behalf of the husband, Rees J did not make orders about the parties raising funds by way of shareholder loans or dividends.  Rees J observed[3]:

   However, there is no evidence of the tax implications which would flow if a significant sum were removed from the accounts of H Pty Ltd either by way of loan or by way of dividend.

   [3] Paragraph 110 of the judgment of 6 September 2019.

5. Here the wife proposes a modest borrowing on her account by way of shareholder loan and she intends to repay the advance.  She will have funds from the sale of Property A.  There are apparently other assets that could be realised to meet the parties need for funds.

6. I will not impose an obligation on the husband to facilitate the loan proposed by the wife although it would seem to meet the parties’ need for urgent action to move their litigation forward.  If the husband is not attracted to that course, he might look at selling a different number plate or raising the money some other way.  I will make an order requiring that the parties each meet one half of the costs of the valuations ordered herein, within seven days of receipt of an invoice from a valuer.

MYOB data file

1. It was contended on behalf of the wife that she has not had access to the MYOB account transactions from the date of the company’s inception, including in regards to a dramatic increase in company profit since the parties’ separation. Therefore her knowledge as to its financial position is extremely limited and she seeks orders for the husband to provide her with access to such records. I do not recall this matter being addressed in submissions by Senior Counsel for the husband.  It may be that the parties have agreed about this issue.  By the orders of 6 September 2019 the wife was to have access to company records.  She now seeks electronic access to the MYOB accounts.  For the reasons given by Rees J, she should have that access.  I will make an order in terms of the wife’s application “unless the parties otherwise agree”.

Loan account ledgers

1. The wife seeks a broadening of the existing orders so as to enable her access to information in regards to the loan account ledgers.  Submissions on behalf of the wife were to the effect that she is simply asking for access to records and documents for a company of which she is a 50 per cent shareholder.

2. I do not recall any submissions being made on behalf of the husband on this point and it may be that the parties have agreed about this issue.  Since separation, the husband has transacted on the company accounts, without prior notice to the wife.  What was done during the marriage, when the parties were in the same interest, is not permissible where the parties are potentially no longer in the same interest.  The husband is a trustee for the wife in his dealings with the company that affect her.  She is entitled to be consulted in advance about anything that could affect her and that consultation has not occurred.  Where the parties are at loggerheads and there is no communication or trust between them, that consultation is even more important.  The wife shares the ownership of the company and she is entitled to the records sought.

3. I will make the orders sought by the wife.

Conclusion

1. I will give the parties leave to restore the matter within 14 days in respect of the wording but, without agreement, not the import of the above orders.

2. I suggest that the parties and their lawyers commission the required valuations and put in place a mediation as soon as practicable.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 15 July 2020.

Associate: 

Date:  15 July 2020