Lesley & Lesley
[2015] FamCA 894
•23 October 2015
FAMILY COURT OF AUSTRALIA
| LESLEY & LESLEY | [2015] FamCA 894 |
| FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife sought an interim property settlement of $250 000 – Where the wife sought payment from the husband of her current and future legal costs –Where the husband objected on the basis that he is unable to access funds to satisfy such orders – Where the asset pool is estimated to exceed $10.8 million dollars – Consideration of Bing & Bing (2007) FLC 93-318 – Where the Court finds it just and equitable to make orders as sought by the wife – Where both parties sought injunctions restraining the other from dealing with various entities – Orders made restraining the husband’s dealing with those entities without written notice to the wife, unless in the ordinary course of business. |
FAMILY LAW – CHILD SUPPORT – INTERIM PROCEEDINGS – Where the wife sought a child support departure order – Where the Child Support Registrar had not been served pursuant to the Family Law Rules – Where the wife had not utilised the administrative mechanisms available through the Child Support Agency – Where the wife had not established that there are special circumstances to justify such an order – Application dismissed.
| Child Support (Assessment) Act 1989 (Cth) s 116, 117, 145 Family Law Rules 2004 (Cth) r 4.16, 4.23 |
| Acton & Burton [2015] FamCA 469 Bell & Bell [2000] FamCA 1301 Bing & Bing (2007) FLC 93-318 Child Support Registrar & Nixon (2007) 36 Fam LR 571 In the Marriage of Gyselman (1992) FLC 92-279 Iphostrou & Iphostrou and Ors [2011] FamCA 20 Kelleher & Anderson [2007] FamCA 137 Magnus & Magnus [2015] FamCA 429 Sieling and Sieling (1979) FLC 90-627 Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466 Vincent & Vincent [2013] FamCA 425 Yeh & Jyu [2014] FamCA 162 Yewen & Child Support Registrar & Anor [2014] FCCA 2399 |
| APPLICANT: | Mr Lesley |
| RESPONDENT: | Ms Lesley |
| FILE NUMBER: | SYC | 1313 | of | 2015 |
| DATE DELIVERED: | 23 October 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 20 August 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Blackah |
| SOLICITOR FOR THE APPLICANT: | Caroline Chung & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr White SC |
| SOLICITOR FOR THE RESPONDENT: | Michael Conley Lawyers |
Orders
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
Within two (2) months of the date of these Orders, the husband is to pay to the wife the sum of $250 000 by way of interim property settlement.
Within three (3) months of the date of these Orders, the husband is to pay into the wife’s solicitor’s trust account, the amount of $297 430 for the payment of the wife’s current and future legal costs in relation to these proceedings.
Unless it is in the ordinary course of business, the husband shall give at least fourteen (14) days’ written notice to the wife of:
(a)any proposal to sell, mortgage, charge or encumber any assets held either solely or jointly with the wife; and
(b)any proposal to sell, mortgage, charge or encumber any assets of the following entities:
(i)B Pty Ltd;
(ii)C Pty Ltd;
(iii)D Pty Ltd;
(iv)Lesley Family Trust;
(v)E Pty Ltd;
(vi)F Pty Ltd; and
(vii)G Pty Ltd.
The wife is to maintain the existing family health fund membership with the H Health Fund and, for the avoidance of doubt, is to ensure that the husband remains a member of that fund.
In the event it has not already occurred, within seven (7) days of the date of these Orders, the husband is to cause the joint letters of instruction to I Valuers and to Mr J (“the Valuers”) to be executed and sent to those Valuers, together with the supporting documentation, and failing which, the wife is to cause her solicitors to forward those letters of instruction to the Valuers.
In the event it has not already occurred, within seven (7) days of the date of these Orders, the husband is to confirm in writing his nomination of K Appraisals to value the parties’ City L properties and is to cause the joint letter of instruction to be executed and sent to that Valuer, and failing which, the wife is to cause her solicitors to forward the letter of instruction to that Valuer.
The wife’s application for a child support departure order, pursuant to s 117 of Child Support (Assessment) Act 1989 (Cth), is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lesley & Lesley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1313 of 2015
| Mr Lesley |
Applicant
And
| Ms Lesley |
Respondent
REASONS FOR JUDGMENT
Background
By Initiating Application filed 2 March 2015, the applicant husband sought interim orders relating to the collection of personal belongings from the former matrimonial home, the payment of periodic spousal maintenance to the wife and the payment of expenses relating to properties owned by the parties. By way of Amended Response filed 13 August 2015, the respondent wife sought an interim property settlement as well as orders in respect to the release of funds for the payment of her legal fees. The wife also sought orders for a departure from a child support assessment, payment of adult child maintenance for the parties’ eighteen year old daughter and payment of outgoings in respect to properties owned by the parties. Further, both parties sought a suite of injunctions restraining the other, together with orders of an ancillary nature related to the conduct of the proceedings.
In a case outline document provided by the wife prior to the hearing, it was indicated that wife no longer wished to proceed with the adult child maintenance aspect of her application.
Helpfully, the parties agreed to a joint chronology. Of most relevance are the following facts:
·The husband, currently aged 55, and the wife, currently aged 52, married in 1988 and separated on 7 February 2015. The parties have two children: Ms M aged 18 and N aged 16.
·The husband is a health professional and the wife currently works part time. The wife has also had other employment experience including working in the family businesses.
·In 1985 the husband entered into partnership in relation to a business at Suburb O and since that time several other pharmacies have been purchased. It is not disputed that these businesses have provided the foundation for a number of successful business and investment opportunities. These are operated through a complicated corporate and trust structure.
·The husband estimates that the net value of the property of the marriage is $10.8 million. The wife asserts that the actual amount is considerably higher.
·On 2 March 2015 the husband commenced proceedings in the Family Court seeking interim and final property orders.
·On 15 June 2015 the wife filed a Response seeking interim and final property orders.
·On 15 June 2015 the parties entered into interim consent orders in relation to certain interim orders sought by the wife.
Relevant properties
The relevant properties which will ultimately be considered by the Court as part of a final property settlement include the following:
a)Q Street, Suburb R, NSW (“the Suburb R property”);
b)S Street, Suburb T, NSW (“the Suburb T property”);
c)1 U Street, City L, Country P;
d)2 U Street, City L, Country P;
e)V Street Suburb O, NSW;
f)W Street, Suburb X, NSW; and
g)Y Street, Suburb Z, NSW.
The Suburb O, Suburb X and Suburb Z properties are owned through the family corporate and trust structure.
The wife also asserted that two properties which are both located at AA Street, Suburb Z, form part of the property of the marriage – however, this was disputed by the husband. Those two properties are:
a)1 AA Street, Suburb Z, NSW; and
b)2 AA Street, Suburb Z, NSW.
In this judgment, the nine properties will be collectively referred to as “the relevant properties”.
Relevant entities
The entities relevant to the family businesses and investments include the following:
a)B Pty Ltd;
b)C Pty Ltd;
c)D Pty Ltd;
d)Lesley Family Trust;
e)E Pty Ltd;
f)F Pty Ltd; and
g)G Pty Ltd.
In this judgment, the above will collectively be referred to as “the relevant entities”.
Orders Sought
In summary, the orders sought by each of the parties are respectively:
The husband
(1)That the wife make available for collection by the husband various personal belongings from the Suburb T property, which is currently occupied by the wife.
(2)That the wife be restrained from participating in the management of the relevant entities which are associated with the commercial activities of the family businesses.
(3)That the husband provide further financial disclosure.
(4)That the husband pay all outgoings in respect of the Suburb T and Suburb R properties.
(5)That the husband pay to the wife the sum of $1 000 per week by way of spousal maintenance.
(6)That the wife maintain the family’s health fund membership, including ensuring that the husband remains as a member of the fund.
The wife
(1)That the husband pay for all expenses associated with necessary repairs at the Suburb T property and to pay land tax in respect to the Suburb R property.
(2)That the husband pay a higher rate of child support than that which has been assessed by the Child Support Agency, as well the child, N’s, private school education and extracurricular expenses and his private health insurance.
(3)That the husband be restrained from engaging in specified dealings in respect to the relevant entities.
(4)That the husband pay the wife’s legal costs by way of interim property settlement or on a dollar for dollar basis.
(5)That the husband pay the wife an interim property settlement of $250 000 having regard to the wife's changed financial position.
(6)That joint letters of instruction be sent to independent valuers, I Valuers, Mr J and K Appraisals to value the relevant properties and the relevant entities.
Consent Orders
On 15 June 2015 interim consent orders were made to the following effect:
(1)That provision be made for the husband to collect personal items from the wife.
(2)That the wife be restrained from changing any passwords or access codes for any email account, server or other facilities associated with the companies.
(3)That the husband provide the wife with monthly bank account and BAS statements in respect to the relevant entities.
(4)That the husband pay to the wife, by way of spousal maintenance, the sum of $1 000 per week.
(5)That, in respect to the Suburb T and Suburb R properties, the husband attend to the payment of:
(a)municipal rates;
(b)water rates;
(c)the repayments for the mortgages; and
(d)home and contents insurance.
(6)That the husband be restrained from conducting any meeting whereby it is proposed or resolved that all or any one of the following things might be done in respect to any of the relevant companies:
(a)to wind up the company;
(b)to issue any further shares in the company;
(c)to register any shares already issued but not yet registered in the company;
(d)to alter the rights attaching to any shares already issued in the company;
(e)to appoint any further or alternate directors of the company or to appoint any additional secretary or alternate secretary of the company; and
(f)not to change the appointer of any trust.
(7)That arrangements be made to obtain expert valuations in respect to the relevant properties and the relevant companies.
Issues
It is convenient to deal with the issues left unresolved by the interim consent orders, in the following sequence:
·Should a partial property settlement order be made for the husband to pay the wife the sum of $250 000?
·Should an order be made for the payment of the wife's legal costs, either by way of interim property settlement or pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”)?
·Should an order be made in respect to the repairs associated with the Suburb T property and land tax associated with the Suburb R property?
·Should an order be made pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) (“the CSA Act”) that there be a departure from the administrative assessment of child support currently assessed as payable by the husband for N?
·Is there a need for any further restraint on the parties in respect to their control or interaction with the entities?
·Is there a need for any additional procedural orders including in respect to valuations of the relevant properties?
Interim Property
Submissions
As noted, the wife seeks interim property settlement orders in respect to the following:
·Firstly, the wife seeks the sum of $250 000 as an interim adjustment to maintain the living standard of herself and the parties’ two children, who both reside with her.
·Secondly, the wife seeks an order for payment to her from the husband of the sum of $297 430 in respect to her past and anticipated legal fees.
These two purposes will be separately considered.
It was common ground between the parties that the Court’s task in determining whether an interim property settlement order should be made involves a two-step process. The first step requires the Court to consider whether the justice of the case requires such an order to be made. If that is determined in the affirmative, the second step requires the Court to determine what orders are appropriate and specifically what, if any, orders would be just and equitable in all the circumstances having regard to the considerations set out in sections 79(4) and 75(2) of the Act.
Senior counsel for the wife relied upon the analysis of interim property settlement orders by Macmillan J in Vincent & Vincent.[1] In that decision, her Honour referred to Strahan[2] where the Full Court cited with approval Riethmuller FM’s comment in Wenz v Archer[3] that:
It cannot be the case that a party who has an irresistible claim to a substantial share of the property of the parties should be held out of that property while the matter is litigated…
[1] [2013] FamCA 425.
[2] Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466 at 85,631.
[3] (2008) 40 Fam LR 212 at 223[53].
Senior counsel noted that, after analysing relevant authorities, Macmillan J in Vincent (supra) commented at [19]:
… the question is not what the party seeking the interim property settlement needs the property for, nor what they intend to do with that property if an order is made in their favour. The question is whether in the interests of justice an order should be made.
Senior counsel for the wife argued that, while it was not necessary to provide precise particulars, the objective evidence available to the Court established that the wife has a genuine need to obtain funds by way of an interim property settlement. In respect to the first purpose, it was argued that the wife's income and access to financial resources has significantly diminished since separation whereas the husband’s has not.
Counsel for the husband, on the other hand, argued that the wife has not established that the justice of the case requires an interim property settlement order to be made. In that respect, counsel for the husband referred to the fact that the mortgage commitments of the Suburb T property as well as educational expenses of the children continued to be met by way of a distribution of trust funds.
Counsel for the husband referred to a number of authorities regarding the legitimate expectations of a party after separation. Based on those authorities, he argued that there is no general rule that the pre-separation standard of living should be maintained simply because the other spouse can afford to do so.[4] In any event, he argued that such evidence as is available in these interim proceedings showed that the husband's financial situation had also deteriorated. Counsel submitted that this was demonstrated, for instance, by the fact that the husband is now living in rental accommodation.
[4] Reference was made in counsel’s case outline to Budding & Budding [2009] FamCAFC 165; Paterson & Paterson (1979) FLC 90 – 705 at 78,759; Nutting & Nutting (1978) FLC 90 – 410; Groutsch & Groutsch (1978) FLC 90 – 461 at 77,360 and Bevan & Bevan (1995) FLC 92 - 600.
Moreover, counsel for the husband argued that the interim property settlement orders sought by the wife were “double dipping” because she was already receiving spousal maintenance in the sum of $1 000 per week pursuant to the consent orders made on 15 June 2015. That amount, he argued, was reasonable and appropriate.
In summary, senior counsel for the wife argued that, in terms of the first stage of consideration, the interests of justice required an interim property settlement order to be made. Counsel for the husband argued that the "interests of justice" threshold had not been met.
In terms of the second stage of the consideration, senior counsel for the wife argued that, once it is established that the wife will at final hearing receive an amount in excess of that sought by way of interim property settlement, it is unnecessary to look at section 79(4) or section 75(2) factors, because it is necessarily assumed that those factors exist.
Counsel for the husband indicated that he did not disagree with that proposition, but he argued that it would be inappropriate to make the orders sought by the wife because she had not identified where the funds would come from to satisfy an interim property settlement order. In respect to corporate assets, counsel for the husband argued that those entities which the husband has control over have no commercial property assets.
In terms of residential property, it was argued that the question of ownership of the AA Street properties could not be determined in these interim proceedings and it was inappropriate to base an interim property order on the potential disposition of those properties. The only available residential properties to potentially sell, therefore, were either of the properties at Suburb T, Suburb R or City L, Country P. Counsel noted that the wife desires to continue residing in the Suburb T property and the husband wishes to re-develop and reside in the Suburb R property. In those circumstances, he argued that an interim order would necessarily remove options for final orders because the sale of one or both of those properties would prevent the expectations of one or both of the parties being satisfied at final hearing.
Counsel for the husband therefore argued that, if an interim property settlement order is to be made, it should be based on the sale of the City L properties. Senior counsel for the wife, on the other hand, argued that such a condition should not be included in any interim property order because the wife wishes to keep ownership of those properties, as it enables her to visit her parents who reside in City L.
Senior counsel for the wife relied on the authority of Bing & Bing[5] to argue that, in circumstances where it is evident that one party to a marriage has access to a substantially greater portion of the property of the marriage, and that property significantly exceeds the amount that would be specified in an interim property distribution, it is unnecessary for the Court to identify the source of funds that will satisfy the interim property orders.
[5] (2007) FLC 93-318.
The Law
The following principles are relevant to the Court’s consideration of this matter:
a)Together, sections 79 and s 80(1)(h) confer a power on the Court to make orders for interim property settlement.
b)Section 79 confers a discreet power to make orders for property settlement and the Court may exercise the power conferred by section 79 through “a succession of orders until the power ... is exhausted” or until a final order dealing with all the known property of the parties is made.[6]
[6] Gabel & Yardley (2008) FLC 93-386 as cited in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,640.
c)Section 80 is not in itself a source of jurisdiction for such an order to be made. Rather, the section is an “enabling provision” that provides various ways in which the general power in section 79 may be exercised in individual cases.[7] This includes, by section 80(1)(h), the making of “a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order”.
[7] Davidson & Davidson (No. 2) (1994) FLC 92-469 and Yunghanns & Ors v Yunghanns & Ors (1999) FLC 92-836.
d)There are two stages to the hearing of an application for interim property settlement orders.[8]
[8] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,645 – 85,646.
i)The first stage is a “procedural step” which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) to make an order for partial property settlement before a final hearing. At this stage, the “overarching consideration” is the interests of justice.
ii)The second stage is the “substantive step” where the provisions of section 79 must be considered and applied but with limitations, given that it is not the final hearing.
e)Given that an applicant is effectively seeking access to their own funds, it is unnecessary for a “detailed inquiry as to the purpose for which the funds are to be used”.[9]
[9] Felice & Felice [2011] FamCA 162 at [12].
f)Sufficient particulars must nonetheless be provided to enable the Court to determine:
i)that the application is “genuine”;[10]
[10] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at [227] at 85,657.
ii)to “identify the circumstances that make it appropriate to give consideration to exercising its power”;[11] and
[11] Ibid at [226] at 85,657.
iii)to sufficiently weigh the identified need “against the benefit of having only one exercise of a s.79 power”.[12]
[12] Ibid at 85-656 citing with approval of Reithmuller FM in Wenz v Archer (2008) 40 Fam LR 212.
g)While the usual section 79 considerations apply to the second stage of the process, a detailed analysis of those considerations is not required in an interim hearing.[13]
[13] Ibid at 85,646.
h)Nevertheless, an applicant is required to show more “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”.[14]
[14] Ibid at [139] at 85,646.
i)The exercise of the jurisdiction should be conducted with an appreciation that “as a generality, the interests of the parties and the Court are better served by there being one final hearing of section 79 proceedings.”[15]
[15] Ibid at [223] at 85,656 citing Harris & Harris (1993) FLC 92-378.
j)The overriding consideration at all stages of the process is that the Court is satisfied that it is “just and equitable” to make the order in circumstances before the Court.[16]
[16] Stanford & Stanford (2012) FLC 93-518 at 86,640 – 86,642.
k)In evaluating the competing contentions, it is necessary to have some regard to the fact that, in family law proceedings, one party may have the predominance of resources.[17]
[17] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,643 quoting Wenz v Archer (2008)40 FamLR 212.
l)While the majority of cases in which interim property orders have been made relate to applications to obtain funds to conduct litigation,[18] that is by no means the only instance where such orders have been made. Other instances include:
i)situations where a party may need access to resources “to meet debts which may result in the party being pursued by creditors”,[19] or
ii)the “need for the party to make payments to the benefit of the children”,[20] or
iii)to “take advantage of other financial opportunities”[21] or
iv)where the parties consent,[22] or
v)where there are “urgent situations” such as;
a.“where it is necessary to exercise this power if injustice is to be avoided. Examples include cases where it is necessary to do so to avoid an asset being eroded or lost in the intervening period, and
b.cases (beyond the maintenance power) where an order in favour of one party is necessary to preserve or obtain a home for or is otherwise necessary for the welfare of the children.”[23]
[18] Ibid at 85,631 and cases referred to therein.
[19] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,643 quoting Wenz v Archer (2008) 40 FamLR 212
[20] Ibid.
[21] Ibid.
[22] Harris & Harris (1993) FLC 92-378 at 79,930 –79-931.
[23] Ibid.
Consideration
It would be an error to extend the comment by Macmillan J in Vincent (supra), referred to by senior counsel for the wife, to an assertion that the purpose for which the funds are required is irrelevant in determining whether an interim property order should be made. The first stage of the inquiry referred to in Strahan[24] that is, determining that it is in the interests of justice for an interim property order to be made, necessarily requires the Court to “identify the circumstances that make it appropriate to give consideration to exercising its power”.[25] In undertaking that task, it is necessary to determine that the application is “genuine,”[26] and to weigh the identified need “against the benefit [for litigants and the public] of having only one exercise of a s.79 power”.[27]
[24] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466.
[25] Ibid at [226] at 85,657.
[26] Ibid at [227] at 85,657.
[27] Ibid at 85-656 citing with approval Reithmuller FM in Wenz v Archer (2008) 40 FamLR 212.
In that respect, as noted, senior counsel for the wife submitted that the wife has a genuine need to obtain funds by way of interim property settlement because her income and access to financial resources has significantly diminished since separation, whereas the husband’s has not.
The nature and extent of the husband’s income was strongly contested and, in these interim proceedings, it is not possible to make a determination in respect to that matter. Counsel for the husband also questioned whether the wife is reasonably exploiting her earning capacity. Similarly, it is not possible to make a finding in that respect.
Nevertheless, it appeared to be accepted that the wife’s income for the 2013 financial year was $187 041. It also appeared to be accepted that the wife’s current income is $1 376 per week (which includes $1 000 of spousal maintenance received from the husband). This equates to a gross annual income of $71 552 or, in other words, a reduction of $115 489 per year in income.
Further, it would appear that credit cards in the name of several of the relevant entities have, prior to separation, been regularly used by the parties for business, household and personal expenditure. That facility is no longer available to the wife but voluminous credit card records annexed to the wife's affidavit filed 15 June 2015[28] indicate that facility remains available for the use of the husband.
[28] at tabs 55 to 63.
In that respect it is unnecessary, in these interim proceedings, to determine whether the credit card usage by the husband reflects access to funds that should be regarded as forming part of his income, a distribution of trust funds or, whether the usage reflects control he has over assets of some or all of the relevant entities. It is evident that, since separation, the husband has had the benefit of access to those credit card facilities whereas the wife has not. In that respect, in Bell & Bell [2000] FamCA 1301, the Full Court said at [46] that it “may be appropriate, depending upon the circumstances, to make notional adjustments to the pool of assets to reflect identified items of property that …one party only has had the benefit of to the exclusion of the other party”.
For these reasons, the Court finds that it is in the interests of justice for an interim property distribution to be made to assist the wife to adjust to her changed financial circumstances since the date of separation.
Having determined that issue in the affirmative, it is then necessary to consider what, if any orders, are appropriate and just and equitable having regard to section 79(4) and section 75(2) of the Act. In that respect, in the Full Court have said:
Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. 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 and 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.[29]
[29] Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466 at [137] at 85,646.
As noted, both parties conceded that it was unnecessary for the Court to undertake a detailed analysis of the section 79(4) and 75(2) considerations in this case. It is nonetheless necessary to determine whether making a particular interim property settlement order would be appropriate and “just and equitable” in the circumstances.[30]
[30] Stanford & Stanford (2012) FLC 93-518 at 86,640 – 86,642.
While counsel for the husband conceded that there are considerable assets in the matrimonial property pool, it is not possible to point to any particular asset that can readily be sold or realised to obtain the funds necessary to satisfy the interim property settlement order sought by the wife. Indeed, counsel for the husband cautioned that the Court should not make an order which would be a “futility”.
On the other hand, as noted, senior counsel for the wife relied on the decision of the Full Court in Bing & Bing[31] as authority for the proposition that where one party controls the vast pool of assets, as in this case, questions regarding the potential source of the funds to satisfy an interim property order is not an impediment to such an order being made. In Bing (supra), at 81,478, the Full Court said:
…The mere assertion that there are no immediately available funds to provide to the applicant to enable him or her to continue on with the proceedings cannot simply be accepted at face value. If it is apparent that one of the parties controls a vast pool of assets (irrespective of whether those assets are readily capable of liquidation) then the Court has a broad enough discretion to enable an order to be made for the provision of funds by the holder of those assets to enable the other party to continue on with litigation.
…
Finally it has been asserted that the husband was and remains unable to raise the capital sum sought by the wife. This is a matter which may become relevant if and when the husband defaults in the order and an enforcement application is brought. However, the question of enforcement of the order remains a separate question from the propriety of granting the order in the first place.[32]
[31] (2007) FLC 93-318.
[32] Ibid.
As noted by Cronin J, in Yeh & Jyu,[33] those principles are relevant irrespective of whether the partial property settlement is being used to fund litigation or for another appropriate purpose.
[33] [2014] FamCA 162 at [17].
It is not possible, in these interim proceedings, to assess the operations of the relevant entities (both combined and individually) nor to determine the extent to which the husband exercises control over them. Nevertheless, the husband acknowledged that he has taken steps to “prevent [the wife] from having access to the bank accounts of the various companies and entities owned by both of us other than the [City L] properties”.[34] As noted, the net value of property in the matrimonial pool is in the order of at least $10.8 million.[35]
[34] Husband's affidavit filed 2 March 2015 at paragraph 17.
[35] Ibid at paragraph 15.
In circumstances where the wife’s financial circumstances since separation are significantly inferior to those of the husband, it would not be a just and equitable outcome to leave the overwhelming majority of the assets in the hands of the husband as against those of the wife, even on an interim basis.[36] Accordingly, the Court will make the interim property settlement order in payment to the wife of the sum of $250 000 as sought by her.
[36] Yeh & Jyu [2014] FamCA 162 at [23].
In view of such an order being made, it is not considered necessary to make an additional order for the payment of repair expenses associated with the Suburb T property in which the wife resides with the parties’ two children. This outcome was contemplated by senior counsel for the wife who did not strongly voice a contrary position.
In light of a commitment by the husband to attend to the payment of land tax associated with the Suburb R property, it is also unnecessary to make orders to that effect.
Interim Property – Legal Fees
The two stage process for considering whether interim property orders should be made also applies to the wife’s application for funds to pay her legal expenses. In addressing the interests of justice consideration, it has been observed that “cases involving complex commercial family disputes are often not a level playing field. It is important that, if possible, an attempt is made to level that field.”[37]
[37] Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [60].
In the context of interim property orders, in Strahan,[38] Boland and O’Ryan JJ analysed relevant authorities and noted:
In Poletti and Poletti Nygh J, when describing an application for “interim costs”, referred to the reasons of the Full Court in Wilson and Wilson and said it is a “situation where one party to the marriage controls almost exclusively what might be described as the patrimony of the parties and has control of the bulk of the assets and funds of the parties, where an order may be made to ensure that the other party, who does not have the fortune of controlling those funds, at least has an equal or near equal opportunity to present his or her case”: see also In the Marriage of Polletti at 796 per the Full Court (Ellis, Strauss and Butler JJ). The Full Court in Zschokke at 83,220 made a number of relevant remarks about the “desirability of legal representation for both parties in family law proceedings. (References omitted)
[38] Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466 at 85,631.
Applying those principles, it is determined that the interests of justice require an interim property settlement order to be made to enable the wife to continue to engage competent legal representation.
The application of the relevant section 79(4) and 75(2) considerations have been discussed in determining that is appropriate to make an interim property settlement order to assist the wife to adjust to her post separation financial circumstances. Those same considerations apply in determining that it is appropriate to make interim orders in respect to the payment of her legal fees.
In determining the appropriate amount to include in an order in respect to payment of the wife’s legal fees, the Court has considered the affidavit of Mr Michael Conley, solicitor acting for the wife, filed 13 August 2015. That affidavit estimates the wife’s total future legal expenses to be the sum of $255 310. When added to an outstanding invoice of $42 120.77, the total amount comes to the sum of $297 430.77
While the amount is substantial, it is noted that this case involves complex corporate and trust structures and issues regarding beneficial ownership of property as well as dealing with property that is located overseas. In those circumstances, an order will be made for an interim property order in the amount sought by the wife for her current and future legal costs.
Source of funds
As noted, the main objection by the husband to an interim property distribution was his inability to access funds to satisfy the order. In response, senior counsel for the wife relied on Bing (supra) to argue that identifying the source of the funds was not necessary on the facts of this case. In Bing,[39] the Full Court said:
The mere assertion that there are no immediately available funds to provide to the applicant to enable him or her to continue on with the proceedings cannot simply be accepted at face value. If it is apparent that one of the parties controls a vast pool of assets (irrespective of whether those assets are readily capable of liquidation) then the Court has a broad enough discretion to enable an order to be made for the provision of funds by the holder of those assets to enable the other party to continue on with litigation.
…
Finally it has been asserted that the husband was and remains unable to raise the capital sum sought by the wife. This is a matter which may become relevant if and when the husband defaults in the order and an enforcement application is brought. However, the question of enforcement of the order remains a separate question from the propriety of granting the order in the first place.
[39] Bing & Bing (2007) FLC 93-318 at 81,478.
In this case, the husband has taken steps to prevent the wife from having access to the bank accounts of the various entities owned by the parties[40] and is seeking interim orders to exclude the wife from participating in decision-making in respect to the management of the relevant entities. As noted the bulk of the marital assets, which exceed $10.8 million, are held through those entities.[41]
[40] Husband's affidavit filed 2 March 2015 at paragraph 17.
[41] Husband's affidavit filed 2 March 2015 at paragraph 21.
In those circumstances, the Court will make the interim property orders as sought by the wife without identifying the source of the funds.
As the wife’s need to fund legal fees is being satisfied by way of an interim property distribution, it is unnecessary to consider the wife's application for a “dollar for dollar” costs order pursuant to section 117 of the Act.
Departure from Administrative Assessment of Child Support
Division 4 of Part 7 of the Child Support (Assessment) Act 1989 (Cth) (“the CSA Act”) deals with orders for departure from an administrative assessment of child support in special circumstances (“departure orders”). Section 117 relevantly provides:
Section 117 Matters as to which court must be satisfied before making order
Court may make departure order
(1) Where:
(a) application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order. (Emphasis added)
There are a number of difficulties with the wife’s application for a departure order in this case. Those difficulties are:
(1)The Child Support Registrar (“the Registrar”) has not been served with the wife’s application.
(2)The application is premature in that the wife has not sought a remedy through the administrative processes that are available in the CSA Act.
(3)In the context of the evidentiary limitations associated with these interim proceedings, the wife has been unable to adduce sufficient evidence to satisfy the Court that there are special circumstances that justify departure from the administrative assessment.
Failure to serve the Child Support Registrar
Rule 4.23(1)(c) of the Family Law Rules 2004 (Cth) (“the Rules”) requires the Child Support Registrar to be served with an application under Division 4.2.5 of the Rules. Division 4.2.5 deals with “Child support and Child maintenance”. “Application” is defined in Rule 4.16(a) as “an application under the Assessment Act, other than an application for leave to appeal from an order of a court exercising jurisdiction under the Assessment Act.”
The obligation to serve the Registrar is in the context of the right of the Registrar to intervene in proceedings before the Court pursuant to section 145 of the CSA Act.
In the case before the Court, the husband raised the non-service of the Registrar as amounting to denial of natural justice. Despite that issue being raised by the husband, no evidence of service of the Registrar has been presented to the Court and the reasonable inference is that such service has not occurred.
Failure to serve the Registrar in accordance with the Rules is fatal to the Court dealing with the application at this time. Requiring service to be effected is not simply insisting on ritualistic compliance with the Rules for the sake of mere compliance. Non-service on a person or entity that has a statutory right of intervention is a fundamental denial of natural justice that, in the absence of urgency, prevents the Court from dealing with that aspect of the application. In Child Support Registrar & Nixon,[42] the Full Court said:
…given the emphasis placed by the High Court in both Taylor and Allesch v Maunz on the right of a party to be heard when an order is to be made affecting that party, we accept that where a party has not been given notice of the proceedings in which the order was made, and thus not been heard on the making of the order, that that is a matter which should be given very significant weight in the exercise of the discretion to set aside the order. As his Honour did not refer to the fact that the order had been made without notice to the Registrar, it has to be assumed that he gave this fact no weight, and thus his discretion must be regarded as having miscarried on account of his failure to have regard to this important matter.
We add that we do not accept, as we understood to be submitted by the respondents, that a distinction should be drawn between a party to the proceedings as opposed to a third party. (References omitted)
Discretionary considerations in circumstances where an available administrative remedy has not been pursued
[42] (2007) 36 Fam LR 571 at [47] - [48]. See also Official Trustee in Bankruptcy v Donovan and Donovan and Stevens (1996) FLC 92-703.
Section 117 of the CSA Act empowers the Court to make an order under section 116 departing from an administrative assessment made under the CSA Act. In Magnus & Magnus,[43] Stevenson J held that, in the circumstances under consideration, it was premature to make an application for a departure order before such time as the applicant had utilized “the tools available to the Child Support Agency.”[44]
[43] [2015] FamCA 429.
[44] Ibid at [22].
The approach of Stevenson J in Magnus (supra) is entirely consistent with the legislative framework. After undertaking a detailed analysis of the legislative history of the CSA Act, in Yewen & Child Support Registrar & Anor,[45] Judge Brown said:
The rationale for the exclusion of the court, from the process of review, is readily explicable in light of the objects as outlined in section 4 of the Assessment Act. Court proceedings, regarding child support assessments, should be the exception rather than the rule. This is particularly so, since the inauguration of the external level of appeal, in child support matters, provided by the SSAT.
The instigation of appeals to SSAT, in child support matters, was part of a wide ranging reform of the child support system inaugurated by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (the “Reform Act”). The SSAT is intended to be a specialist tribunal, dealing with child support matters, in preference to a court such as this one.
….
The important matter to note, in my view, is that departure applications are to be heard by the court in what are categorised as being limited circumstances, given the desirability of such issues being determined in a manner characterised as being less adversarial, whilst, at the same time, remaining fair.
[45] [2014] FCCA 2399 at [76], [77] and [79].
In applying to the Court for a departure order, practitioners should be aware of the limited ability of the Court to resolve factual controversy in interim proceedings. These same complications do not exist when making an application for determination under Part 6A of the CSA Act to the Registrar. In dealing with such a matter, the Registrar is acting in an administrative rather than judicial capacity and the procedure adopted is inquisitorial as opposed to adversarial (section 98H(1)(b) of the CSA Act). Moreover, the Registrar is not bound by the rules of evidence (section98H(4)).
This is not the case when the Court is exercising its jurisdiction under Division 4 of Part 7 of the CSA Act. In such proceedings, the Court exercises a judicial function and the proceedings are adversarial. As will be discussed below, in interim proceedings, the Court is generally unable to test evidence by cross examination. An applicant for interim orders must essentially take the evidence of the respondent at its highest or otherwise rely on evidence that is non-controversial or is, at least, objectively verifiable. This can present significant evidentiary difficulties for an applicant who carries the onus of satisfying the Court that orders should be made.
Even if service on the Registrar had been effected, the wife has still not pursued more appropriate remedies available to her under the CSA Act.
Difficulty in crossing the “special circumstances” threshold in interim proceedings
As noted, in the present case, it is acknowledged that the net value of the matrimonial property pool is at least $10.8 million. It is also acknowledged that the wife has suffered a significant reduction in earnings since separation. The main area of controversy is, however, in respect to whether the husband is understating his income. To establish that fact, the wife sought to rely on banking records including credit card records. Those documents constitute business records for the purpose of section 69 of the Evidence Act 1995 (Cth) and, arguably, provide objectively verifiable confirmation of the husband’s ability to access funds held in company accounts associated with the family businesses.
In response, however, counsel for the husband argued that the entries in the credit card statements, which were referred to by senior counsel for the wife, by and large related to business, educational, mortgage and household expenditure. These items of expenditure, he argued, are in the nature of a distribution of trust funds to or on behalf of family members.
Final determination of this issue cannot occur without additional evidence as to the nature of the trust arrangements and the benefit of detailed submissions. The level of required analysis is simply not possible in interim proceedings. In that respect, in Iphostrou & Iphostrou and Ors,[46] Cronin J said at [44]:
In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction.
[46] [2011] FamCA 20 at [44].
Similarly in Acton & Burton,[47] which also involved an application for child support departure orders in the context of interim proceedings, Hogan J said:
The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them.
[47] [2015] FamCA 469 at [26].
In order to succeed in obtaining a departure order, it is necessary for the applicant to first cross the threshold issue by establishing that special circumstances exist such that it is appropriate for the Court to exercise power pursuant to section 117 of the CSA Act. In that context, In the Marriage of Gyselman, the Full Court, in respect of the phrase “special circumstances”, said:[48]
Whilst it is not possible to find with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something that is special or out of the ordinary, that is, the intention of the legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases.
[48] (1992) FLC 92-279 at 79,066.
Despite the evidentiary difficulty faced by the applicant in these interim proceedings, the applicant is not relieved “from the obligation of establishing the necessary prerequisites for the grant of the relief sought. The applicant, therefore, must still prove, to the requisite standard, those matters fundamental to the successful prosecution of her claim.”[49]
[49] Acton & Burton [2015] FamCA 469 at [29].
In Acton & Burton (supra), the applicant failed to satisfy the Court that “special circumstances” existed that warranted the Court making a departure order. While each case needs to be determined on its own facts, in light of the unresolved factual complexities to which reference has been made, the Court is unable to conclude that special circumstances exist that warrant the Court exercising power pursuant to section 117 of the CSA Act.
Nothing in these reasons, of course, presents an impediment to the applicant pursuing an equivalent remedy within the administrative procedures available in the CSA Act.
Injunctions
Contentions
As noted, both parties sought injunctive relief. In the husband’s case, relief was sought to restrain the wife from being involved in the management of the relevant entities save insofar as the husband undertakes to provide relevant financial reports to the wife. The wife, on the other hand, has sought injunctive relief with a view to the restraining the husband and the relevant entities from engaging in conduct that may deplete the matrimonial property pool prior to the matter being finally heard and determined.
The Relevant Law
When proceedings are before the Court, the Court has broad powers to grant injunctive relief including for the purpose of preserving the status quo, and/or otherwise regulating the conduct of the parties, pending final hearing.[50] In those circumstances, pursuant to section 114(3), the Court must be satisfied that it is just or convenient to grant such an injunction or make an interlocutory order. By way of summary, the following principles are relevant to the Court’s consideration of the respective applications for injunctions in this matter:
[50] See G and T (2004) FLC 93-176 at [53] – [54] and where it is “just or convenient to do so”: see Mullen & De Bry (2006) FLC 93-293 applying section 114(3).
a)The Court must address the question as to whether there is evidence of a risk of the disposal of any assets that would defeat any anticipated order in the substantive proceedings - but that is but one of a number of factors to be considered.[51]
[51] Lawson & Crawford and Ors [2014] FamCA 1012 at [52] referring to Mullen and De Bry (2006) FLC 93-293.
b)The applicant for such orders must establish “a real risk of assets being disposed of” prior to final hearing.[52]
[52] Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 427[122].
c)“In some cases, the possibility (based on some evidence) of an intention or scheme may, with other factors, be sufficient to establish the probability of an objective risk of disposal with intent to defeat an order.”[53]
[53] Mullen and De Bry (2006) FLC 93-293 at 80,999.
d)In assessing that risk, it is not necessary for the applicant to satisfy the Court about the probability of success of the applicant’s case.[54]
[54] Beacham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623.
e)In issuing an injunction, it may be appropriate for the Court to consider any undertaking as to damages offered by the party seeking the injunction but such an undertaking may not be essential in family law proceedings.[55]
[55] See Blue Seas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856.
f)A precondition to the Court issuing an interim injunction is that the Court finds that “there is a serious issue to be tried and that the balance of convenience supports the making of an order”.[56]
g)The applicant seeking an injunction order bears the onus of satisfying the Court that the circumstances justify the making of that Order.[57]
h)In considering the nature of the injunctive relief, it is important to be aware of the general principle that “equity intervenes to the minimum extent necessary to do justice”.[58]
i)In the context of family law, in Sieling and Sieling (1979) FLC 90-627 at 78,265, the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order and frame its order in such a way to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim.[59]
j)In Martiniello & Martiniello (1981) FLC 91-050, it was suggested that a party should not be restrained from using their money for ordinary business purposes unless “it could be shown that there was a fear that [the party] would dissipate [the] funds.”[60]
k)It is a particularly serious matter for the Court to make an order that effectively restrains the freedom of movement of a person.[61]
l)In considering an application for injunctive relief, it is important to recognise that section 114(3) empowers the Court to “grant an injunction...in any case in which it is just or convenient to do so...”[62]
[56] Blue Seas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856 at 86,128; Stowe and Stowe (1981) FLC 91-027 and Yunghanns & Ors v Yunghanns & Ors (1999) FLC 92-836.
[57] Sieling and Sieling (1979) FLC 90-627.
[58] See Giumelli v Giumelli (1999) 196 CLR 101 at [10] referred to in Norton & Locke (2013) 284 FLR 51 at [72].
[59] at 76,422. See also Menotti & Lamb [2014] FamCA 518 at [41] and Auricchio & Auricchio and Ors [2014] FamCA 185.
[60] See also Auricchio & Auricchio and Ors [2014] FamCA 185 at [50] and Torr & Amberson [2015] FamCA 290 at [76].
[61] Sampson & Hartnett(No. 10) (2007) FLC 93-350 and Cales & Cales (2010) FLC 93-459.
[62] Mullen and De Bry (2006) FLC 93-293 at 80,999.
Consideration
There is no question in these proceedings about the prospects of success of either party. Both parties acknowledge that there will be a property distribution at the conclusion of these proceedings. It is, however, necessary to consider the parties’ proposals from the point of view of a balance of convenience. In this case, that task requires the Court to examine the cases advanced by the respective parties for the orders they are each seeking and then to balance those claims against the impact that any such orders would have on each of the parties individually and commercially.
The husband’s justification for seeking injunctions against the wife are set out in paragraph 21 of the husband’s affidavit filed 2 March 2015 as follows:
I am also seeking a restraint or a number of restraints in relation to [Ms Lesley] dealing with staff and other people associated with the businesses. I do so because I have been informed by my bookkeeper … that he has received a significant number of emails and phone calls from [Ms Lesley] in the period since we have separated and that this is impeding his capacity to effectively work.
Despite the husband indicating his understanding that the bookkeeper “will be swearing a separate affidavit as to his dealings with [Ms Lesley] since separation”, no such separate affidavit was relied upon by the husband in the proceedings.
The difficulty with the husband’s contention is that, aside from mere assertion based on hearsay, he has not shown any actual instance where the wife has interfered in the effective running of the family businesses since separation.
It is of significance that the wife agreed to the following order being made by consent on 15 June 2015:
2. That pending further order the wife is restrained from changing any passwords or access codes for any email account, server or other facilities associated with any other companies listed in the schedule of the companies.
It is further noted that, in paragraph 17 of his affidavit filed 2 March 2015, the husband states:
Shortly prior to moving out of the [Suburb T] property I took steps to prevent [Ms Lesley] from having access to the bank accounts of the various companies and entities owned by both of us other than the [City L] properties. I did that because I consider that [Ms Lesley] is financially irresponsible and liable to waste the family's resources.
The wife is not accessing the bank accounts of the relevant entities or engaging in conduct that interferes with the passwords or access codes for any email account, server or other facility associated with relevant entities. As noted by the Full Court in Sieling (supra),[63] injunctions are not issued lightly. In this case, the husband has failed to satisfy the onus that he carries of satisfying the Court that the circumstances justify the orders sought.
[63] (1979) FLC 90-627 at 78,265.
This is particularly the case in respect to his proposed Order 2(f) which seeks to restrain the wife from “entering any premises owned or occupied by any of the companies listed in the schedule of companies.” This order would restrict the wife's freedom of movement in circumstances where there is no material before the Court that justifies such a course of action. As was noted in Kelleher & Anderson:[64]
[The applicant] for injunctive relief… bears the onus of establishing, on the evidence, a real risk of assets being disposed of and also that such disposal may cause [his or her] claim to be defeated or prejudiced. It would not be sufficient merely to show that there is a risk of disposal of assets, or the asset pool being diminished, without also establishing that there is a risk that the [party’s] claim may be defeated or prejudiced if the injunction is not granted.
[64] [2007] FamCA 137 at [195].
Paragraphs 105 through to 112 of the wife’s affidavit filed 15 June 2015 refer to the wife’s concerns about the possibility of the husband taking steps to distribute or disperse matrimonial property contrary to her interests. Those paragraphs refer to correspondence between the parties’ lawyers concerning proposals and counter proposals in respect to possible undertakings to address the wife’s concerns. That correspondence forms Exhibits 40 through to 46 to the wife’s affidavit filed 15 June 2015. That exchange of correspondence has not addressed the wife’s concerns and she is therefore seeking injunctions to restrain the husband from dealing with the property of the marriage on his own behalf and through the relevant entities, contrary to her interests, prior to final hearing.
Further, senior counsel for the wife argued that the husband’s attempts to sever the joint tenancy of the parties in respect to the Suburb R property was evidence of such a risk that the husband will disperse or distribute the property of the marriage contrary to the wife’s interests. The husband argued, in response, that such an application simply reflects the reality that the parties have now separated.
The evidence presented by the wife in these interim proceedings is insufficient to satisfy the Court that there is a real risk of the husband dispersing or distributing the property of the marriage such that, at final hearing, the wife’s claim, will be defeated or prejudiced if her application for injunctive relief is not granted.
However, there is evidence that the husband has taken steps to significantly reduce the wife's management responsibilities in respect to the operation of the family businesses. In circumstances where the wife continues to hold office in some of the relevant entities, it is understandable that she would seek orders to be kept informed of major decisions concerning the operations of those entities. Such decisions would include any proposals to sell, mortgage, charge or otherwise encumber any property of the marriage, including any property owned or controlled by the relevant companies. It is therefore just and convenient for orders to be made to ensure that the wife receives reasonable notice of any such decisions.
Applying the principle that the Court will intervene only to the minimum extent necessary to give that protection,[65] the orders sought by the wife will therefore be modified to minimise the extent to which they impact on the day to day operations of the family businesses.
[65] See Giumelli v Giumelli (1999) 196 CLR 101 at [10] as referred to in Norton & Locke (2013) 284 FLR 51 at [72].
The Court will not grant an injunction in terms of the wife's proposed interim Order 8 because it would restrain the funds received by the family businesses from being used for ordinary business purposes,[66] in circumstances where the wife has not demonstrated a legitimate fear that the husband will dissipate those funds.[67]
[66] See Martiniello & Martiniello (1981) FLC 91-050.
[67] See also Auricchio & Auricchio & Ors [2014] FamCA 185 at [50] and Torr & Amberson [2015] FamCA 290 at [76].
The Court notes that the injunctions sought in paragraph 7.2.1 through to 7.2.5 of the wife’s Amended Response have been substantially addressed by the injunctions included in the consent orders made on 15 June 2015. Those consent orders will not be disturbed.
Payment of the Husband’s Health Insurance
Senior counsel for the wife indicated that it is desirable for the Court to sever the joint arrangements between the parties even in these interim proceedings. This included arrangements in respect to health insurance with the H Health Fund.
That submission did not, with respect, adequately address balance of convenience considerations. In particular the Court was not addressed, for instance, on whether the husband would be prejudiced in terms of waiting times in respect to treatment that he may be receiving and which may be being covered by the current family health insurance arrangements.
Given the relatively little additional expense that will be incurred in maintaining the husband’s current health insurance until final hearing, the balance of convenience favours the order being made in terms of that which is sought by the husband.
Ancillary procedural matters
The Court was only briefly addressed on ancillary procedural matters that may be required by the parties including, in particular, in respect to conducting valuations of the Australian and Canadian properties and entities.
The Court notes counsel for the husband acknowledged that it is important to obtain those valuations as soon as possible and indicated that he would provide his services to assist in preparing any necessary correspondence with a view to resolving proposed joint instructions to the proposed valuers.
In light of the competence and experience of counsel who appeared on behalf of the parties, the Court assumes that these remaining procedural issues have been or will shortly be resolved. However, in so far as it may be necessary to ensure that any unresolved issues are dealt with, the Court will make the procedural orders as sought by the wife.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 23 October 2015.
Associate:
Date: 23.10.2015
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