Janeiro & Janeiro (No 2)

[2016] FamCA 913

FAMILY COURT OF AUSTRALIA

JANEIRO & JANEIRO (NO 2) [2016] FamCA 913

FAMILY LAW – PROPERTY – Interim property – where the husband seeks the enforcement of an order made with the consent of the parties –where the husband seeks exclusive use of certain items of equipment which he says he uses in his business – where the husband seeks exclusive occupation of a particular portion of business premises – That the husband undertake repairs to the parties’ warehouse premises and that the parties contribute equally to the costs – where the wife seeks consent orders be discharged – where the wife seeks the husband pay the wife’s costs in the interim proceedings.

APPLICANT: Mr Janeiro

RESPONDENT: Ms Janeiro

FILE NUMBER: PAC 4764 of 2015

DATE DELIVERED: 31 October 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam

HEARING DATE: 15 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Snelling

SOLICITOR FOR THE APPLICANT: James Papas Solicitors

COUNSEL FOR THE RESPONDENT: Ms Picker

SOLICITOR FOR THE RESPONDENT: CM Lawyers

By Consent it is ordered

1. Except in the normal course of business for the husband and usual household and living expenses of the wife and the parties child or by written agreement signed by both parties, the wife and the husband be restrained from spending, disposing, selling or in any way encumbering any of the following:

   (a)The cash at hand and bank savings of the parties held in the name of the wife or held for the child of the parties or held in the name of any other party on behalf of the wife or the husband.

   (b)Any plant equipment and motor vehicles owned by the parties registered in the husband’s name or the wife’s name including:

   (i)4WD motor vehicle;

   (ii)German Motor vehicle;

   (iii)Motor home;

   (iv)Work Equipment 1;

   (v)Bobcat;

   (vi)Truck 1;

   (vii)Tipper truck;

   (viii)Work Equipment 2;

   (ix)Forklift;

   (x)Scissor lift;

   (xi)Work Equipment 3;

   (xii)Work Equipment 4;

   (xiii)Truck 2;

   (xiv)Vintage car.

It is ordered

1. Until the settlement or final hearing of this matter, the husband have exclusive use of the following:

   (a)       4WD motor vehicle;

   (b)       Work Equipment 1

   (c)       Bobcat;

   (d)       Tipper truck;

   (e)       Work Equipment 3

   (f)and that the wife deliver to the husband within seven (7) days, the registration and insurance documents for those vehicles.

2. By way of enforcement of Order 1 made on 1 February 2016, that the wife within 3 days do all things to withdraw $100,000 from her St George account described at item 37 of her Financial Statement filed on 9 November 2015, and pay it immediately after withdrawal to the trust account of the husband’s solicitor.

3. That the husband have exclusive occupation of the rear business premises, office and yard at D Street, Suburb E until the settlement or final hearing of this matter.

4. That the husband have the exclusive right to repair and make Council compliant, as soon as practicable, as required by the Order (ORD…) of F City Council dated 23 November 2015, the parties’ warehouse at D Street, Suburb E and that the wife pay and contribute one half of the costs incurred by the husband in complying with Council’s requirements in relation to the business premises on presentation to the wife of a copy of any invoice necessary for compliance with Council’s requirements.

5. The wife’s Application for costs in these proceedings be reserved.

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  Janeiro & Janeiro (No 2) 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 PARRAMATTA

FILE NUMBER: PAC 4764 of 2015

Mr Janeiro

Applicant

And

Ms Janeiro

Respondent

REASONS FOR JUDGMENT

Introduction

1. In property proceedings between the parties, each of the parties seeks interim orders.  Although the husband initially sought a range of orders, at the hearing he only pursued the following:

   ·Enforcement of an order made with the consent of the parties on 1 February 2016 requiring the wife to pay $100,000 from a particular bank account to the trust account of the husband’s solicitor.

   ·That the husband have exclusive use of certain items of equipment which he says he uses in his business.

   ·That the husband have exclusive occupation of a particular portion of business premises owned by the parties pending settlement or final hearing.

   ·That the wife pay to the husband half of the rent she receives from the lease of particular warehouse premises each month. (though the husband does not press this order if the above orders concerning exclusive occupation and exclusive use of the equipment are made)

   ·That the husband undertake repairs to the parties’ warehouse premises and that the parties contribute equally to the costs of ensuring that the property is compliant with Council’s requirements.

2. In the course of the hearing the wife agreed to another of the husband’s proposed interim orders restraining the parties from disposing of or encumbering certain items of property including cash at hand and bank savings pending settlement.

3. At the interim hearing the wife sought the following orders:

   ·The husband’s application for interim orders (as outlined above) be dismissed.

   ·That order 1 of the orders of 1 February 2016 be discharged.

   ·The husband pay the wife’s costs in the interim proceedings.

Background

Uncontested Facts

1. The husband and wife who are both aged 44 met at the husband’s workplace which later became their business.  The wife became the Director of the company that operated the business.

2. In 1999 the parties purchased a property at Suburb G (“the Suburb G property” or the “former family home”) financed by the parties’ savings and a loan secured by a mortgage.

3. In 1999 the parties were married.

4. At some time in 2000 the husband sold a property owned by him and with the proceeds and a loan purchased a business premises at Suburb H.  The loan was secured by a mortgage over this property.

5. In about 2005 the parties set up another business.  The husband undertook the business activities and the wife attended to administrative and bookkeeping functions associated with the business.

6. The parties’ only child was born in 2008.

7. At some time in 2010 the Suburb H business premises was sold for $1,100,000.  With the proceeds and a loan of $400,000 the parties purchased a warehouse at Suburb E (“the Suburb E warehouse”). 

8. In February 2014 the parties separated but both remained living in the former family home.  The parties’ businesses ceased trading at around this time.

9. On 8 May 2015 there was an incident at the former family home and as a result an interim Apprehended Domestic Violence Order (ADVO) was made for the protection of the wife against the husband.  As a result the husband left the home where the wife and child continued to reside.  The application for final ADVO was subsequently dismissed.

10. A few days later, on 11 May 2015, F Council issued a notice to the parties requiring them to carry out substantial repairs on the Suburb E warehouse.  Each of the parties have obtained quotes for the cost of the necessary repairs which vary considerably.  For example, the wife maintains that the cost to rectify a wall at the warehouse is in the vicinity of $100,000 while the husband says it will cost $300,000 to repair.

11. The Suburb E warehouse consists of two buildings.  The front building is leased to a third party and the rear building was used for the purposes of the parties’ business.  During the course of the marriage the husband also used the rear warehouse premises to store his tools and equipment and park his vehicles securely. 

12. Following separation and the cessation of the parties’ business, the rear building at Suburb E has been locked and the wife has not permitted the husband to gain access to it.  This building is currently unoccupied and not utilised by either party for any purpose.  The husband is seeking in his interim application to be permitted to have exclusive access to this part of the Suburb E warehouse to resume carrying on his business.  He also wishes to have exclusive use of particular equipment and a vehicle for the purposes of carrying out this business. 

13. The front building at the Suburb E warehouse is rented at $8900 per month.  The wife says that the rent is deposited into a joint account which is controlled by both parties while the husband maintains that the rent is received by the wife and she has not paid any amount to him since separation.

14. In November 2015 interim orders were made in the parties’ associated parenting proceedings providing that the child who is eight is to, live with the wife and spend defined time with the husband. 

15. On 1 February 2016 the parties reached agreement in relation to some matters in the property proceedings.  In particular, agreement was reached at a court event before a Registrar that the wife would pay $100,000 to the husband immediately.  Orders made by the Registrar with the consent of the parties include an order in the following terms:

    That the wife pay to the husband the sum of $100,000.

    Although there is no timeframe specified in this order for the payment of the $100,000 I understand that the parties do not dispute that this was to occur forthwith upon the making of the orders in February 2016. 

16. The wife has not paid the $100,000 and now seeks to have this order discharged.

17. The former family home and the Suburb E warehouse are the two main items that make up the matrimonial asset pool.

Contested facts

1. There are many matters in dispute between the parties which are unable to be resolved in this interim application. 

2. So far as the order on 1 February 2016 requiring the wife to make payment of $100,000 to the husband is concerned, there is a dispute between the parties as to the purpose to which the $100,000 was to be applied.  It is the wife’s case that she and the husband reached agreement that the money would be used for the rectification costs in relation to the Suburb E warehouse as required by Council.  The husband disputes that such an agreement had been reached and contends that this payment was to be an interim property distribution and the funds were to be used for various purposes at the discretion of the husband.

3. There is a significant dispute between the parties concerning the husband’s current employment and income.  It is the wife’s case that the husband continues to conduct his business and uses various items of equipment and a vehicle for that purpose.  The wife contends that the husband has not provided full disclosure as to his financial position.

4. It is the husband’s case that he has not been engaged in conducting his business since separation.  It is central to his application that it is necessary for him to gain exclusive use of the various items of equipment and access to the rear of the Suburb E warehouse to resume conducting his business as he previously did prior to being locked out of that building.

5. As I understand it, there is also a significant dispute concerning matters central to the substantive property proceedings including contributions and valuation.

The orders sought

Enforcement of order to pay $100,000

1. The husband seeks an order that the order made by consent on 1 February 2016 that the wife transfer $100,000 to the husband [forthwith] be enforced by requiring compliance by the wife within three days.

2. I am not satisfied that there was an agreement between the parties that the $100,000 ordered to be transferred on 1 February 2016 was for any particular purpose.  It is to be noted this order was made by the Registrar with the consent of the parties on an occasion when both parties were legally represented.  The wife has not appealed against the making of this order and is bound to comply with it.

3. The wife has not put forth any reason why she should not be required to comply with an order made with her consent.

Exclusive access to equipment

1. The wife does not dispute that the husband used various pieces of equipment to which he now seeks exclusive access in the conduct of their then joint business.  It is central to her case that he continues to use some of the equipment for the purposes of carrying out his business and earning income in relation to which she contends he has not provided disclosure. 

2. Apart from asserting that the husband is utilising the equipment for his own benefit exclusively and that the value of the equipment is depreciating as a result, the basis for the wife’s opposition to the husband having exclusive access of the equipment was not made clear at the interim hearing.

3. There is no dispute that the husband needs to have access to this equipment for the purposes of earning an income.  Any appropriate adjustment to the parties’ position may be made at a final hearing to take this into account.  The wife does not propose that any alternate use be put to the equipment pending settlement.  In these circumstances, I am of the view that it is appropriate for the husband to have exclusive use of this equipment. 

Exclusive occupation of rear building at the Suburb E warehouse

1. As I understand it, the wife does not dispute that the parties previously used the rear of the Suburb E warehouse for the purposes of their then jointly-operated business and that the husband stored his tools and equipment and parked his vehicles securely in the rear of those premises.  The wife also does not dispute as I understand it, that she has secured the rear building and has not permitted the husband to have access to it since separation, though there is a dispute between the parties about the circumstances in which this occurred. 

2. The wife has apparently offered the husband the use of the “yard” at the Suburb E warehouse but does not agree to him occupying the rear premises.  It is the wife’s position that if she allowed the husband to utilise this building it would then become unavailable to her in the future.  However, the wife has not utilised this building since separation though in her affidavit she states that her intention is to lease it.  The wife even claims that as a result of the building not being leased the parties have lost up to $70,000 per annum in potential rent.  The wife says elsewhere in her affidavit that if the husband has exclusive occupation of these premises she would “lose the opportunity to ever be able to run [her] own business from the warehouse”.

3. There is no dispute between the parties that the rear portion of the Suburb E warehouse was previously used for the purposes of the parties’ business.  The husband wishes to gain access to the building for the purposes of resuming his business and the wife, who has had control over the premises for around 18 months has not utilised it for any purpose.  The husband’s use of the premises for the purposes of earning an income can be taken into account in the final property settlement and I am not satisfied that there is any prejudice to the wife in such an order being made.  In these circumstances, I am of the view, that the order sought by the husband should be made.

4. As previously indicated, the husband’s case was conducted on the basis that if the orders in relation to exclusive occupation and exclusive use of the equipment were made, he would not press the application that the wife pay to him half of the rent from the front building at the Suburb E warehouse.  Accordingly those orders having been made, this application does not need to be considered.

Repairs to the Suburb E warehouse

1. The parties reached an impasse in relation to payment for the necessary repairs to the Suburb E warehouse some time ago.  Although there seems to be a dispute as to the quantum required to carry out the necessary repairs, both parties appear to concede that the matter has some urgency as Council may take legal action against them if the defects are not rectified. 

2. The parties have not been able to reach agreement to resolve the practical matters of obtaining and accepting quotes for the outstanding work and making the arrangements for this work to be carried out. 

3. The wife’s opposition to the husband taking on the responsibility for payment of the necessary repairs appears to be part of the entrenched dispute relating to the property proceedings. 

4. In my view, the proposal of the husband that an order be made requiring him to assume responsibility for the building rectification presents an opportunity for the impasse to be overcome and the necessary repairs to be carried out. There seems to be no dispute that the warehouse is a joint asset and the costs of repair are a joint liability.

Conclusion

1. For the reasons given when discussing each of the orders sought, I make orders as sought by the husband in his Amended Application in a Case.  The wife’s application for payment of her costs is reserved.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on

31 October 2016.

Associate: 

Date:  31 October 2016