Jamieson & Jamieson
[2023] FedCFamC1F 295
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jamieson & Jamieson [2023] FedCFamC1F 295
File number(s): SYC 6996 of 2017 Judgment of: CURRAN J Date of judgment: 12 April 2023 Catchwords: FAMILY LAW – PROPERTY – application in a proceeding – heard on the papers – where husband seeks partial/interim property settlement and wife seeks partial/interim property settlement – the amount and the source of the funds remains in dispute – where the parties have significant assets – where parties have significant outstanding and estimated legal costs – upcoming final hearing – orders made pursuant to s 79 by way of partial property settlement – where parties agree that the existing restraints shall continue subject to these orders pending final hearing of the matter – orders made for updated valuation of property – orders made for disclosure Legislation: Family Law Act 1975 (Cth) ss 79, 80, 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.01
Cases cited: Salvage & Fosse (2020) FLC 93-966
Strahan & Strahan (Interim property orders) (2011) FLC 93-466
Zschokke & Zschokke (1996) FLC 92‑693
Division: Division 1 First Instance Number of paragraphs: 65 Date of last submission/s: 6 April 2023 Date of hearing: Heard on the papers Place: Sydney Counsel for the Applicant: Mr Wong Solicitor for the Applicant: Eakin McCaffery Cox Counsel for the Respondent: Ms Carter Solicitor for the Respondent: Mills Oakley ORDERS
SYC 6996 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JAMIESON
Applicant
AND: MR JAMIESON
Respondent
order made by:
CURRAN J
DATE OF ORDER:
12 April 2023
THE COURT ORDERS THAT:
1.The wife has leave to rely upon her affidavit in support of her Response to the husband's Application in a Proceeding filed 27 March 2023 on the basis that she has signed and had the affidavit witnessed by electronic means.
2.The wife has leave to annex and rely upon more than 5 annexures to her affidavit and her solicitor's affidavit in support of this Response.
3.Order 6 of the Orders made by Altobelli J dated 4 November 2022 be varied to permit compliance Order 4 below.
4.Pursuant to section 79 of the Family Law Act 1975 (Cth) by way of partial property settlement the husband sign all documents and do all things necessary within 7 days of the date of these orders to lodge a request in writing with the trustee of Superannuation Fund 1 in respect of his member entitlements, member number … for the withdrawal of the lump sum of $476,303.50 on the following terms and conditions:
(a)The husband is to authorise and direct the trustee to pay the sum of $246,303.50 to Mills Oakley Trust Account on behalf of the husband;
(b)The husband is to authorise and direct the trustee to pay the sum of $230,000 to Eakin McCaffery Cox Lawyers Trust Account on behalf of the wife.
5.Otherwise the Husband be restrained from drawing on the remaining funds in his Superannuation Fund 1 entitlement, without the written consent of both parties pursuant to Order 6 of the Orders of 4 November 2022.
6.The husband's solicitors and wife's solicitors are to confer within 7 days and are to send a joint letter of instruction to Mr C, Real Estate Valuer for the purposes of obtaining an updated valuation of the Suburb B property.
7.The wife is to make full disclosure in relation to the loan to Mr D including providing the account details and all particulars in relation to the person loan to him within 7 days.
8.Within 7 days, the husband is to make full disclosure in relation to:
(a)All relevant information and copy documents by way of disclosure in relation to the sum of $631,833.02 withdrawn from the husband's E Bank account on 22 December 2021.
(b)All relevant information and copy documents by way of disclosure in relation to the sum of $243,989.30 withdrawn from the NAB account number …51 in the name of F Pty Ltd on 26 February 2020.
(c)Copy documents by way of disclosure in relation to any and all transactions in his Westpac Bank account no. …63 for the periods from 1 September 2022 to 30 September 2022 and from 1 November 2022 to 30 November 2022.
9.The time for production under further subpoena be abridged to 7 days subject to the party seeking the issue of the subpoena obtaining consent of the recipient to the abridgement of time.
10.In the event the husband or the wife refuses or neglects to comply with any of the Orders herein requiring a party to execute a deed or instrument, the Registrar of this Court at its Sydney Registry is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute, in the name of the husband or the wife as the case may be, any deed or instrument necessary to give effect to the orders herein, or any of them, and to do all acts and things necessary to give validity and operation to the said deed or instrument.
11.The Application in a Proceeding filed 17 March 2023 and Response to Application in a Proceeding filed on 27 March 2023 will otherwise be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jamieson & Jamieson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CURRAN J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
INTRODUCTION
The husband seeks interim orders for partial property settlement to meet expenses and legal cost and the wife seeks interim orders for partial property settlement or a costs order to meet legal costs. Each party in this Application in a Proceeding seeks procedural orders.
There was common ground between the parties that there should be a partial property settlement to each of them, but they could not agree on orders being made due to the differences that remained between them as to the amount of the funds for the husband and the source of the funds for the wife.
Both parties sought that the matter be determined on the papers after filing written submissions. The husband filed his submissions by 4.00pm on 5 April 2023 as directed. The wife filed her submissions at 4.44pm on 6 April 2023, the following day.
PARTIAL PROPERTY SETTLEMENT
Both the husband and wife make application for a partial property settlement, although the wife seeks the order be categorised as "partial property, costs or both."
The principles that apply to partial property settlement under s 79 of the Family Law Act 1975 (Cth) ("the Act") are well known. See Salvage & Fosse (2020) FLC 93-966 ("Salvage"); Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 ("Strahan"); and Zschokke & Zschokke (1996) FLC 92-693.
The first step is to determine whether the court should exercise its discretion to determine an interim property application. In undertaking the consideration of whether to exercise the power under s 79 and s 80(1)(h) of the Act, the overarching consideration is the interests of justice. It is not necessary to establish "compelling circumstances."
In the judgment of Boland and O'Ryan JJ in the matter of Strahan at paragraph 132, their Honour's stated:
All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
When a court proceeds to exercise the power in s 79 of the Act, the second step required is to consider the matters in s 79(4), including by reference to s 79(4)(e) and s 75(2) so far as they are relevant. In relation to this step their Honour's said at [137]:
However consideration of such matters may be brief and if it is established that "it seems likely to the Court that … the applicant … will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made": Zschokke; Polletti & Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, "provided scope can be found within the assets of the parties for an order of the size sought … then that should be the end of the matter". In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
In the present Application both parties are in agreement for an order for partial property settlement in the amount sought by the wife of $230,000, and both parties are in agreement that a partial property settlement order should also be made for the husband. Accordingly the first step as to whether the court should exercise its discretion has been satisfied. Absent those concessions, for the reasons that follow, I am satisfied that it is appropriate to make an order for partial property settlement for both parties in the circumstances.
The second step is to consider the nature of the orders to be made by reference to the relevant statutory considerations.
The parties both give evidence in relation to the property pool. Although there are areas of dispute in respect of the pool, there is no dispute that the pool is in the order of approximately $10 million. There is no dispute that the relationship of the parties was long, of some 24‑25 years.
The assets of the parties are:
(a)The former matrimonial home at Suburb B, registered in the name of the husband and valued at $4,500,000, subject to a mortgage of $300,000 in favour of NAB ("the Suburb B property");
(b)A joint interest in the property of G2 Trust of which G Pty Ltd is the corporate trustee, currently valued at $2,751,456;[1]
[1] Affidavit of Ms Jamieson filed 28 March 2023 [21].
(c)The wife's Superannuation Fund 2 at $1,089,850;[2]
[2] Affidavit of Ms Jamieson filed 28 March 2023 [25].
(d)The husband's Superannuation Fund 1 of $1,494,313;[3]
(e)Moneys owed to the wife from Mr D at $236,256;[4]
(f)The husband's savings of $60,065;[5]
(g)The husband's shares of $70,704;[6]
(h)The husband's tax debt of $30,678;[7]
(i)The wife's tax debt of $391,726;[8]
(j)$5,500 in the husband's solicitors trust account;[9]
(k)$85,717.18 in wife's solicitors trust account;[10]
(l)The husband's credit cards of $5,363;[11] and
(m)The wife's credit cards of $66,560.[12]
[3] Financial Statement of Mr Jamieson filed 16 March 2023.
[4] Affidavit of Ms Jamieson filed 28 March 2023 [22].
[5] Financial Statement of Mr Jamieson filed 16 March 2023.
[6] Financial Statement of Mr Jamieson filed 16 March 2023.
[7] Financial Statement of Mr Jamieson filed 16 March 2023.
[8] Affidavit of Ms Jamieson filed 28 March 2023 [27].
[9] Costs Notice of Mr Jamieson filed 27 March 2023.
[10] Costs Notice of Ms Jamieson on 28 March 2023.
[11] Financial Statement of Mr Jamieson filed 16 March 2023.
[12] Affidavit of Ms Jamieson filed 28 March 2023 [29].
There are competing applications for adjustment and competing claims in relation to contributions.
The husband is seeking to retain the Suburb B property, and although the overall division proposed is difficult to understand from the Application given the current uncertainty as to the value of certain assets, the husband is clear that he seeks an overall adjustment in his favour.
The wife seeks something in the order of a 55% adjustment, to her, of the value of the Suburb B property; for her to retain the trust assets; and for the parties to retain assets held in their names. With the uncertainty as to the treatment of the cryptocurrency investment, the value of the Trust and the value of the Suburb B property, it is difficult to discern precisely what overall percentage adjustment either party is actually seeking.
The parties' final property hearing is fixed for 4 days commencing on 5 June 2023, some eight weeks from now. The parties await an updated Single Expert Report in respect of the Trust and the wife seeks an updated Single Expert Report in respect of the Suburb B property, which was last valued by Mr C in early 2021, over two years ago.
There is dispute about the extent of the husband's failed investment of between at least $500,000 and possibly $875,000, or more. There is dispute about the extent of the husband's expenditure on the Suburb B property. There is dispute about previously undisclosed accounts of the husband where it is alleged significant transfers were made by him.
The husband seeks that he receives the sum of $494,000 from his Superannuation Fund 1 which has a current balance of $1,494,313 as partial property settlement for living expense and legal costs. In respect of the husband's Application, the wife seeks that the husband receive $230,000 from his Superannuation Fund 1 as partial property settlement.
The wife seeks that she receives the sum of $230,000 from the husband's Superannuation Fund 1. The husband consents to the sum of $230,000 as partial property settlement, but says in submissions it should be from a source other than the Superannuation Fund 1 and suggests either from the cash available in the Trust or by calling in the debt owed by Mr D.
The questions for determination therefore are:
(a)Whether, by partial property settlement, the husband should receive $230,000, $494,000 or some other amount from the husband's Superannuation Fund 1; and
(b)What should be the source of the partial property settlement of $230,000 for the wife.
In this case restraints on the parties accessing funds without consent or order of the court were made pursuant to orders of Altobelli J dated 4 November 2022. In the absence of orders as sought being made by the husband, he contends he does not have capacity to meet his legal costs or provide for his reasonable needs; and the wife contends that she does not have capacity to meet her necessary legal costs.
There are significant assets, likely to be divided between the parties on either Application close to an equal division. The wife seeks something likely to be in the range of 55% and the husband seeks something likely to be in the range of 65%, noting that a precise analysis of the effect of the orders sought is currently not possible with the outstanding valuation issues. Whatever the outcome of their current Applications, the partial property settlement each party seeks falls within the scope of the assets they will receive.
That being so, the amount to be received pursuant to the competing applications is a small percentage of the property that each of the parties will actually receive in due course. There is accordingly no difficulty in adjusting the final orders to take into account the present orders, should that become necessary. If an adjustment were necessary, for example, the Suburb B property could be sold or the wife's superannuation could be transferred. The orders are reversible.
Each party in their submissions sets out the material they rely on and I have had regard to the material. The wife also filed a lengthy affidavit by her solicitor which identifies alleged financial dealings by the husband. That evidence is extensive, but it remains untested.
THE HUSBAND’S APPLICATION FOR PARTIAL PROPERTY SETTLEMENT
The husband deposes that he has no income. The husband is currently unemployed due to disability. Up until early 2023, the husband was in receipt of income protection of approximately $23,000 per month. His evidence is that his income protection policies ceased in early 2023 due to him attaining the life insured age of 65 years of age.
The husband does not give evidence or deal is his submissions as to how or why he arrives at the figure of $494,000 that is sought. He does however give evidence of his outstanding and anticipated costs and of his current expenses.
The evidence from the husband's costs notice is that he has incurred costs and disbursements to date of $279,476.16 of which $166,730.00 was for previous lawyers and $97,574.40 has been paid to his current lawyers. The notice discloses he has unbilled works in progress and unpaid fees of $7,128 and $14,385.25, totalling $21,513.25 in outstanding legal costs. I find that the husband has $5,500 held in his solicitor's trust account. Further he has anticipated legal costs of $157,490. The outstanding costs, plus anticipated costs, less the amount held in his solicitor's trust account equals a total of $173,503.25 required to be paid.
The husband's evidence is that his total expenses are $2,800 per week. He was previously receiving $23,000 per month by income protection. His expenses, I infer, were previously met from the income protection payments he was receiving.
Although I accept that is not an essential step in the making of a partial property settlement order, need is a relevant consideration to be taken into account. There appears no capacity for the husband to meet his needs or pay his legal costs without an order of this court permitting his access to the assets of the parties, given the restraints that were previously ordered.
The wife gives evidence through her solicitor in an affidavit of over 168 pages, of financial transactions made by the husband without the wife's knowledge. There is no evidence that the husband now has access to those funds. The impact of those transactions appears to be an allegation that he has transferred or disposed of in excess of $500,000 and indeed it seems as much as $875,000. What I infer from that evidence is that the wife makes complaint that the husband failed to disclose significant transfers and investments, and that he imprudently, or at least without consent, has dealt with and possibly lost large sums of matrimonial property. The husband may well have utilised these funds as alleged by the wife and this may result in various findings being made at the trial. The evidence, however, has not been tested and remains something for final determination at the trial. While I accept that this potential consideration points against making a partial property order, the husband's evidence is that he has limited savings, no income or other funds from which to support himself and no income or other funds from which to pay legal fees. There remains a significant property pool for division which supports the making of an order for partial property settlement. I accept the husband's submission that "a level playing field is itself in the interest of justice and important in deciding the appropriateness of an interim property order."
The matter is listed for final hearing from 5 to 8 June 2023. The husband's expenses are $2,800 per week. The husband therefore, from filing of the Application until the hearing (and assuming completion of the trial in the allocated time and a decision being handed down within 3 months), will reasonably need the sum of $2,800 per week for approximately 6 months to meet those needs, being a total of $72,800. This is without allowance for additional unexpected expenses. I note however that the husband has savings of approximately $60,000 from which further expenses could be met.
I find the husband's legal costs that are required to be paid are $173,503.25. I find the husband requires a further sum of $72,800 to meet his expenses.
The total that I am able to identify from the evidence filed and submissions received in support of this Application is $246,303.50.
Accordingly I order that the sum of $246,303.50 be released from the husband's Superannuation Fund 1 entitlements by way of partial property settlement.
THE WIFE’S APPLICATION FOR PARTIAL PROPERTY SETTLEMENT
The wife's submissions sought in effect equalisation of the partial property settlement; however I was not taken to any authorities as to the need for there to be an equalisation or parity of positions. As set out in Strahan at [139]:
… in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
As with the husband's Application, it is necessary to be satisfied of the two step process that it is appropriate to make the order, with the overarching consideration being the interests of justice, and that after having regard to the relevant matters in s 79 of the Act, it is just and equitable to do so.
For her part, the wife seeks orders that there be a partial property settlement by payment of $230,000 to each the husband and the wife from the husband's Superannuation Fund 1 entitlement (a total of $460,000), to be characterised as partial property settlement, costs or both.
I have considered the material filed by the wife in support of her Application.
The wife's evidence is similar to the husband's in terms of the property pool, the length of the marriage and identifying the ambit of the dispute including the value of the Trust, the value of the Suburb B property and the treatment of the investment and other financial transactions. The Applications of the parties in the context of the substantial asset pool and alleged adjustment factors, as also referred to above, have been considered by me in determining whether it is appropriate to make an order for partial property settlement for the wife, noting also the consent of the husband to the order and amount of the order.
I do not propose to make any orders pursuant to s 117 of the Act in the circumstances of this case, as the preferred approach where available is by partial property order, which is both appropriate and available in this case.
The wife seeks a payment of $230,000 for the payment of past legal fees outstanding and legal costs to be incurred, together with some debt. Her evidence sets out her anticipated future legal costs and I find that she has legal costs to meet in the sum of $230,450 in professional costs and disbursements, plus $55,000 of unbilled WIP for her solicitors and counsel, being a total of $284,450 in legal costs. I find that the $82,794 held in her solicitor's trust account is held on account of costs to be incurred by the single experts and her counsel. The wife's anticipated future legal costs, less the amount held in her solicitor's trust account, is therefore $202,656.
The wife remains in receipt of her income protection payments which currently meet her needs, although noting the wife has ceased to pay the outstanding ATO instalments such that there is no current deficit in her income and expenses. There is no significant excess, however, after meeting her expenses from which she can pay legal costs. Accordingly I do not accept the contention that the wife can meet her legal costs from her income as it is unsupported on the evidence available to me.
The wife's evidence is that she has a quarterly instalment of $27,559 due 28 April 2023 that is a "final demand before collection." The legal costs plus the debt amount to $230,215.00
The husband complains that the wife has provide an unsecured loan of $236,256 to Mr D. The wife agrees that she has used such funds for that purpose. It appears the husband complains that the wife has without his consent dealt with matrimonial property. He contends that this could be the source of the wife's partial property settlement. There is no evidence as to the capacity of Mr D to repay these funds at short notice and with the final hearing imminent the effect of such an order may be that the wife does not receive the funds she deposes that she requires to be able to prepare this matter for the final trial.
The husband contends an alternative source "such as the G2 Trust of which at least $700,000 is held as cash." [13] The wife contends "The parties have been at an impasse as to how to manage their entities known as [G Pty Ltd] as trustee for the [G1 Trust] and [G Pty Ltd] as trustee for the [G2 Trust] (referred to as the "hybrid trust" by the parties during these proceedings)." She further notes "neither party seeks orders to deal with the assets of the [G2 Trust] to satisfy the relief they seek on an interim basis. Further, the controversy in relation to the management of the hybrid trust, whether during cohabitation and/or post-separation is the subject of an investigation and pending report from the single expert accountant, [Mr H]."[14]
[13] Husband’s submission paragraph 15.
[14] Wife’s submission paragraph 5.
From the submissions of the wife, the value and treatment of the G2 Trust asset apparently remains in dispute or at least awaits single expert opinion. According to the wife's submission, further updating and currently outstanding expert evidence is required to deal with the controversy of the Trust assets. In those circumstances, on an interim basis where the evidence is untested and submissions are in conflict, I must proceed with caution. Accordingly I do not propose to accede to the husband's application for the source of the wife's partial property payment to be from the cash funds available from the trust or from the monies lent by the wife to Mr D. The depletion of the husband's superannuation fund is something that can be reversed on final determination by, for example, by a transfer from the wife's superannuation fund. That also satisfies the clawback issue.
The wife also contends that a division of superannuation at this stage from the source of the husband's superannuation could diminish his capacity to pay her in a timely way at the conclusion of the trial, if he is to retain the Suburb B property. While I accept that if the husband retains Suburb B property (and a cash source of funds is ordered and the superannuation fund is diminished) there may be some delay in the immediacy of the husband's ability to secure funds. That contingency is not unusual and is not something that is irreversible. A sale order for the Suburb B property can be arranged in a timely way if that is the ultimate outcome. The asset pool is such that the balance of the assets, even with a reduction in the husband's superannuation pool, will be significant. Accordingly a reduction of the husband's Superannuation Fund 1 pool and the identified possibility of delay in receiving payment is not a reason that persuades against a partial property order from that source. In any event the effect of the orders I will make are that the total sum of $476,303.25, which is only marginally more than the sum sought to be transferred by the wife's own Application where she sought that the sum of $460,000 be transferred.
As discussed in Salvage, where one party to matrimonial proceedings has control of all the assets to be divided between the parties, orders can be made so as to provide the other party with the means of prosecuting the proceedings. Such orders can be made by way of costs orders, partial property settlement orders or maintenance orders. Similarly where an injunction exists, as in this case, which prevents both parties from having the means to prosecute the proceedings, an order for partial property settlement can be made to provide the parties with the means to prosecute the proceedings.
Taking these factors into account, I am satisfied that the appropriate order is that there also be an interim partial property settlement in the agreed sum of $230,000 to the wife. That sum should also come from the Superannuation Fund 1.
In my opinion these orders are just and equitable.
PARTICULARISATION OF THE USE OF THE FUNDS
The wife seeks that the parties particularise the use of the funds. In circumstances where the parties are obliged to provide updated costs notices and the obligation for disclosure is a continuing one, I find that the requirement to do so is unnecessary and onerous. I see no basis upon which anything other than the usual and ongoing duty of disclosure should be imposed on the parties. I note that the trial is some 8 weeks away.
DISCLOSURE
The husband seeks an order requiring the wife to give full and frank disclosure of documents in relation to the loan to Mr D. This is what the wife is required to do in any event pursuant an existing obligation under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). The wife acknowledges the debt. It is sought that the wife discloses details of her loan to Mr D, including all transaction listing and bank statements showing transactions to and from Mr D, including the bank account details of Mr D. The details of this account should have been disclosed. An order for disclosure of this information will be made.
The wife seeks an order requiring the husband to give specific disclosure as set out in Annexure "A" to the wife's submissions, specifically paragraphs 1, 2, 4 and 5. The husband's submission observes that the request seeking "all relevant information" is "exceptionally broad." The husband is required to make full and frank disclosure in compliance with the Rules. The husband's submissions assert he has "provided copies of all relevant documents which he has in his possession or control in relation to the accounts and transactions identified by the wife … and there is nothing further to produce."
The duty of disclosure is explained in r 6.01 of the Rules. The terms of the rule make it clear that each party to the proceedings has a duty to the court and to each other party to give full and frank disclosure of "all information relevant to the proceedings," in a timely manner. Accordingly, an order for disclosure in the terms sought will be made, noting the contention that there is nothing further to produce.
UPDATING SINGLE EXPERT – SUBURB B PROPERTY
The wife seeks updating material from the expert in relation to the value of the Suburb B property. The valuation is over two years old and an update is appropriate. The husband's written submissions appear to identify that the proposed letter to Mr C is agreed "save that in relation to improvement and defects that are not easily visible upon inspection, the husband proposes the parties jointly write to Mr C with a list of such improvement and defects." In those circumstances I will direct the parties to confer in relation to the proposed joint update from the single expert. If there is need to file a further Application in respect of this aspect the parties can do so in the usual way and the matter will be listed before me on 48 hours' notice if there are any difficulties. It would be expected that the parties would cooperate and send a joint letter of instruction within 7 days of the date of these orders in order to ensure the receipt of the updated valuation report prior to the final hearing.
It is also appropriate to make an order pursuant to s 106A of the Act as sought to ensure compliance as the final hearing commencing in a little under two months.
CONCLUSION
The parties agree that the existing restraints shall continue subject to these orders, pending final hearing of the matter.
The orders will be pursuant to s 79 of the Act by way of partial property settlement.
A s 106A order will be made.
The wife is to make disclosure in respect to of the Mr D loan within 7 days.
The husband is to make disclosure as particularised in Annexure A of the wife's submissions within 7 days, insofar as he has not already done so.
An updated valuation of the Suburb B property from the single expert will be obtained and to facilitate this order the parties are to cooperate and send joint letters of instructions within 7 days of these orders, within liberty to relist on this issue.
That otherwise the husband be restrained from drawing on the remaining funds in his Superannuation Fund 1 entitlement, without the written consent of both parties pursuant to Order 6 of the Orders of 4 November 2022.
The Application in a Proceeding and Response to Application in a Proceeding will otherwise be dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 31 May 2023
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