Machocki and Machocki and Anor

[2017] FCWA 160

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MACHOCKI and MACHOCKI & ANOR [2017] FCWA 160

CORAM: O'BRIEN J

HEARD: 15 SEPTEMBER 2017

(FINAL SUBMISSIONS RECEIVED 13 NOVEMBER 2017)

DELIVERED : 17 NOVEMBER 2017

FILE NO/S: PTW 4365 of 2013

BETWEEN: MS MACHOCKI

Applicant

AND

MR MACHOCKI
First Respondent

MS MOORE
Second Respondent

Catchwords:

FAMILY LAW - PROPERTY - where part heard trial is shortly to resume - where parties sought orders in relation to interim property settlement, disclosure, injunctions and spousal maintenance - turns on own facts

Legislation:

Family Law Act 1975 (Cth) s 72, s 74, s 75, s 77
Superannuation Industry (Supervision) Act 1993 (Cth) s 31(h)
Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 6.22

Category: Reportable

Representation:

Counsel:

Applicant: Mr Rynne

First Respondent : Self Represented Litigant

Second Respondent : Self Represented Litigant

Solicitors:

Applicant: Paterson & Dowding

First Respondent : Self Represented Litigant

Second Respondent : Self Represented Litigant

Case(s) referred to in judgment(s):

Hall v Hall (2016) 257 CLR 490

In the marriage of Baber (1980) FLC 90-901

In the marriage of Page (1987) FLC 91-806

Mackah & Mackah [2017] FamCAFC 62

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1The court is required to determine a number of outstanding interim matters to the extent possible prior to the resumption of the trial in the substantive proceedings.

2The proceedings have a long and difficult history. It is unnecessary to recount that history in any detail for the purpose of these reasons. It is sufficient to note that the proceedings went to trial before the Honourable Justice Walters over a period of four days in July 2015 and that His Honour’s decision was reserved. Subsequently, certain interim and interlocutory applications were brought by the parties.

3In her Form 2A response filed on 26 May 2017, responding to a Form 2 application of the husband filed on 9 May 2017, the wife sought leave to reopen the proceedings and adduce further evidence.

4On 15 June 2017 the parties appeared before Walters J. The wife confirmed that she sought to reopen the proceedings and adduce further evidence; the husband also sought the opportunity to reopen the proceedings, while expressing a desire for the matter to be concluded as quickly as possible. His Honour indicated that if the parties did not pursue reopening, he would anticipate being able to deliver a judgment within approximately one month. If, however, the opportunity to reopen was sought there would obviously be an associated delay. In addition, His Honour explained that for reasons to do with his health he could not be confident as to the timeframe within which a reopened trial could resume before him, if at all, and raised squarely with the parties the possibility that they might find it preferable to jointly agree to a process whereby a reopened trial could resume before a different Judge.

5After the parties considered the matter, orders were made by consent as to the procedure to be adopted to finalise the outstanding proceedings by assigning the matter to another Judge for management and finalisation, including by reopened trial.

6The matter was subsequently assigned to me for that purpose.

7I made directions for the matter to proceed to a hearing before me on 15 September 2017 for argument on any outstanding interim and interlocutory applications, and for consideration of any further directions necessary to progress the matter to the resumed trial. I made further directions requiring the parties to file and serve minutes setting out any orders to be sought at that hearing, including any proposed orders as to the filing and service of any further affidavit material to be relied upon at the resumed trial.

8The wife and the husband each filed a minute of orders sought on 8 September 2017 as ordered.

9At the hearing on 15 September 2017 I was able to advise the parties that the Chief Judge had approved the fixed listing of the resumed trial to commence on 17 January 2018, somewhat earlier than they had understandably assumed might be the case. Consequently, there were discussions as to the possibility that some of the interim and interlocutory relief sought by the parties might not need to be pursued prior to trial. Orders were made for the filing of updated evidence prior to the resumed trial, and to give the parties leave to issue subpoenas. Further orders were made for the parties to confer in relation to valuation issues, and liberty was given to them to relist the proceedings before me in the event that there was a dispute regarding expert evidence. Otherwise, the parties were ordered to confer and file within 21 days either a joint minute setting out those interim orders which could now be agreed, or separate minutes setting out which of the orders sought by the other parties could be made by consent.

10With the consent of the wife and the husband, the record was noted to the effect that neither pursued the interim orders for disclosure sought in their respective minutes, on the basis that each took the position that the other was on notice as to the disclosure requested and as to the intention of the requesting party to invite the court to draw an adverse inference if the request was not met.

11The wife filed a further minute of proposed orders on 6 October 2017. While that minute did not strictly comply with the order I had made, on enquiry from my chambers the solicitors for the wife confirmed that it accurately set out all the relief sought by her on an interim basis.

12The second respondent filed a minute on 10 October, 2017.

13The husband wrote to the court on 25 October 2017 setting out various orders he would seek, and otherwise making various comments in relation to past events. Like the minute filed on behalf of the wife, that letter did not comply with the order I had made and it could not be said to be clear that the husband sought only the relief set out in it. On enquiry from my chambers, the husband confirmed that he in fact sought relief other than that set out in his letter.

14Subsequently, the husband filed a further minute on 13 November 2017 which set out the relief now sought by him.

15By that somewhat tortuous process, the relief sought by each of the parties on an interim basis has been identified.

16The consideration of the relief sought by each of the parties must be informed by:

1.the circumspection with which the court must couch any findings to be made an interim hearing where evidence is in conflict and cannot be tested, and the limitations inherent in the abridged process involved in an interim hearing;

2.the degree to which, against that background, it is necessary for interim orders to be made now in circumstances where the trial will resume in mid-January, and any prayer for interim relief can be renewed at the conclusion of the evidence at trial if the granting of that relief pending delivery of a final judgment is justified; and

3.the practical limitations associated with my own availability between now and the resumption of the trial.

The relief sought

17The interim relief sought by the wife may be summarised as follows:

1.that the husband pay her the sum of $50,000.00 as and by way of interim property settlement within 14 days, and that in order to comply with that order the husband be permitted to draw upon his superannuation entitlements up to that amount, with the orders made on 15 August 2013 which restrain him from accessing his superannuation being suspended to the extent necessary for that purpose;

2.in the alternative, that the urgent spousal maintenance order made on 6 October 2015 be varied to increase the weekly amount payable to the sum of $2,282.00, or that in the alternative an interim spousal maintenance order in the same amount be made in substitution for that order;

3.that the husband be restrained, by a series of injunctions, from dealing with “the apartment”, withdrawing monies from any bank account other than in the ordinary course of business or to meet his day-to-day living expenses to a maximum amount of $1,250.00 per week, and from dealing with property, or lending or borrowing, more broadly;

4.that the husband complete all outstanding tax returns for himself and any relevant entities;

5.that the husband provide disclosure in the form of a list of documents meeting the requirements of the Family Law Rules 2004 (“the Rules”); and

6.that her costs be reserved to trial.

18The husband had previously proposed, in his minute filed on 8 September 2017, that the sum of $100,000.00 be withdrawn from his member balance in the superannuation funds to meet outstanding arrears and repayments due under a loan from [Bank A] secured by mortgage against [Property A], and that the wife also receive $50,000.00 from [Superannuation Fund A] for “lifestyle expenses as part of the property settlement”.

19In that minute, he also sought various orders for the interim transfer of interests in land on the basis that he indemnify the wife in relation to associated liabilities, and certain other orders expressed in the alternative; that relief was not pursued in his letter to the court of 25 October 2017 and the proposed relief in the form of orders for transfer of various properties to him on an interim basis was expressly abandoned by him at the hearing before me.

20In his letter of 25 October 2017, the husband summarised the relief sought by him on an interim basis as follows:

1.that “all evidence [be] admissible due to the fragmentary (sic) circumstances of this case”;

2.that transcript costs of all hearings to date be waived, given the circumstances of delay which have given rise to the parties need for those transcripts;

3.leave to issue a series of further subpoenas, over and above those issued at his request on 31 October 2017 pursuant to my earlier orders;

4.that the second respondent should not be excused from personal attendance at the resumed trial; and

5.he reserved his position in relation to costs.

21In his minute of proposed orders filed on 13 November 2017, the husband sought relief which may be summarised as follows:

1.that the wife consent to him withdrawing $100,000.00 from his balance in the superannuation funds to be paid towards arrears and repayments to Bank A;

2.what he described as “consent for existing spouse maintenance of $1,000 net per month to be paid in the form of a distribution from [Trust A]”;

3.what I interpret to be a proposed order that ongoing repayments to Bank A be paid via distributions to the husband and wife from Trust A;

4.that the wife consent to a renegotiation of the loan from Bank A to reduce the associated interest costs;

5.that the wife consent to the properties at [Property B] and [Property C] being rented out, with the proceeds to be paid towards the joint Bank A loans and statutory expenses;

6.that the wife accept various distributions recorded as having been made to her for the financial years 2014-2018 inclusive, where the proceeds of those distributions have been used to pay the loans, on the basis that the husband and the Trust A indemnify her in relation to any tax payable, including overdue tax and penalties;

7.that the wife sign off on the outstanding financial statements and tax returns for the Superannuation Fund A for the years ended 30 June 2014-2017 inclusive;

8.that the wife be removed as a trustee and member of the Superannuation Fund A with immediate effect, as he would say is required by the order contained in paragraph 9 of the minute of consent orders annexed to the orders made on 7 March, 2014;

9.that the wife sign various share documents to enable certain specified shares to be registered on the Holder Identification Number of the Superannuation Fund A;

10.that the joint tenancy of the husband and wife in the block of land at [Property D] and Property B be severed on an interim basis;

11.in his words, “defer – amend $35,000 Concessional Contributions for [Ms Machocki] SSMF to $35,000 Non-Concessional Contributions to [Mr Machocki] to save Tax of $15,750 unless [Ms Machocki] accepts Trust A distribution for 2014. Subject to examination by each party’s tax accountant”;

12.he repeated the request for disclosure expressly abandoned at the hearing before me;

13.referring to [Ms R], his partner, that (presumably the trust) “allocate income to her of $1,000 per week, and a capital amount of $30,000” (sic);

14.orders for costs, including an injunction restraining both the wife and her lawyer from “recklessly incurring lawyer fees”; and

15.that the agreed value for [Company A] at $900,000.00 “be amended to $750,000, due to client list sale on 8/16 for $150,000”.

22He sought further that the application made by him for interim transfer of the various properties to him, subject to the associated liabilities, be “deferred”, presumably to trial, and that the relief sought by the second respondent similarly be addressed only at trial.

23In her minute filed on 10 October 2017 the second respondent sought a variety of interim orders which may be summarised as follows:

1.various orders relating to the maintenance, repair and insurance of [Car A] in her possession;

2.a weekly payment of $300.00 from the Trust A, backdated to 21 September 2017;

3.orders in relation to outstanding accounting fees;

4.a payment of $7,000.00 over a three month period, which she indicated she intended to use for the purpose of obtaining legal advice in preparation for trial;

5.the right to participate in future hearings by telephone rather than personal attendance, including at the trial of the proceedings, suggesting that I had already approved that course of action at the hearing on 15 September 2017, when in fact the permission I granted was limited to her participation in further procedural hearings; and

6.disclosure from the husband as to all distributions made from the Trust A, and leave to adduce further evidence if necessary.

The relief sought by the wife

1. The proposed payment from the superannuation funds

24Interim orders were made on 15 August 2013 restraining the husband (with certain limited exceptions which are irrelevant for present purposes) from accessing, or in any way dealing with, Superannuation Fund A and [Superannuation Fund B]. As noted above, the wife seeks the suspension of those orders to the extent necessary to permit the husband to pay her the sum of $50,000.00 by way of interim property settlement, and orders compelling him to do so.

25In her affidavit filed on 26 May 2017, in support of the application, the wife said that the value of Superannuation Fund A at 1 May 2017 was $132,961.00, and that the value of Superannuation Fund B at the same date was $116,385.60.

26In schedules tendered at the hearing before me, the husband asserted that the value of Superannuation Fund A was $235,000.00, and that the value of Superannuation Fund B was $130,000.00, while the wife asserted that the values were $320,000.00 and $45,290.00 respectively.

27The difficulty faced by the court in dealing with the matter on an interim basis in those circumstances is immediately apparent, even before any consideration of the principles applicable to an application seeking orders for interim property settlement.

28In any event, it is unnecessary to consider those principles as in my view the orders sought by the wife cannot be made.

29There is no evidence to suggest that either fund is other than a regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth) (“the SIS Act”). Section 31(h) of the SIS Act provides that the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS Regulations”) may prescribe standards applicable to the operation of regulated superannuation funds including “the payment by funds of benefits arising directly or indirectly from amounts contributed to the funds”.

30Regulation 6.22 of the SIS Regulations provides that, subject to certain regulations specifically dealing with superannuation splitting orders, “a member’s benefits in a regulated superannuation fund must not be cashed in favour of a person other than the member or the member’s legal personal representative…”.

31The Full Court in Mackah & Mackah [2017] FamCAFC 62 made it clear that the court cannot make orders the effect of which would be to require the trustee of a superannuation fund to act in breach of regulation 6.22.

32The order for interim property settlement sought by the wife, and the ancillary suspension of the order made on 15 August 2013, would clearly have that effect.

33That aspect of the wife’s application will be dismissed.

34As the matter is shortly to proceed to a resumed trial I consider it appropriate to record that my determination of that matter does not limit in any way the options available to the parties or to the court in any orders for superannuation splitting that might otherwise properly be made. I record further that it remains open to the parties to seek to persuade me that the proposal that the husband access $100,000.00 from his member account in the superannuation funds and apply that money towards the arrears on the debts to Bank A does not offend regulation 6.22, given the joint and several liability of the parties for those debts.

2. Spousal maintenance

35As the proposed order for interim property settlement is not to be made, the wife’s alternative application to either vary the quantum of the urgent spousal maintenance order made on 6 October 2015 to a weekly amount of $2,282.00, or for an interim spousal maintenance order, in the same amount, remains to be considered. The existing order requires the husband to pay the wife the sum of $1,000.00 per week, not $1,000.00 per month as indicated in the husband’s minute of orders sought.

36Section 74 of the Family Law Act 1975 (Cth) (“the Act”) provides that the court may make such order as it considers proper for the provision of maintenance in accordance with Part VIII of the Act.

37The right of a spouse to maintenance is defined by the provisions of s 72 and the matters to be taken into consideration in relation to spousal maintenance are set out in s 75.

38Section 77 makes provision for urgent spousal maintenance cases.

39Section 83 provides for the modification of spousal maintenance orders. It is unnecessary for the purposes of these reasons to consider the application of s 83 to an order made pursuant to s 77, and in particular whether that application is called into question by the requirement that an order made under that section be made when it appears to the court that the relevant party “is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made”. It is sufficient to say that I have some doubt as to whether an order made pursuant to s 77 is in any event capable of variation pursuant to s 83 as proposed, some two years after the original order was made.

40It is not necessary to consider that issue further as it cannot sensibly be said that the parties have not had the opportunity to place before the court sufficient evidence to enable a determination of the question of what order for spousal maintenance, if any, is proper on an interim basis, having regard to the threshold question raised by s 72, and the matters to be taken into consideration pursuant to s 75. I respectfully agree with the views expressed at first instance in In the marriage of Baber (1980) FLC 90-901 and In the marriage of Page (1987) FLC 91-806.

41As the High Court observed in Hall v Hall (2016) 257 CLR 490 at [7]-[8] (citations omitted):

It was established at an early stage in the history of the Family Court that the power to make an interim order under s 74(1) is separate and distinct from the power to make an urgent order that is separately conferred by s 77. Section 77 allows the court to “order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable” if a two-part condition is met. First, it must appear to the court that a party to the marriage “is in immediate need of financial assistance”. Secondly, it must be “not practicable in the circumstances to determine immediately what order, if any, should be made”.

Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).

42It follows that in my view the first alternative proposed by the wife, that the quantum payable to her pursuant to the existing order made under s 77 be varied, must fail.

43It therefore remains to determine the second limb of the relief sought, whereby the wife seeks that an interim spousal maintenance order in the sum of $2,282.00 per week be made in substitution for that order.

44The wife’s evidence is that she is not in receipt of a regular income, being employed [in a casual capacity] only. She says she has no recent or relevant work experience skill or qualifications which would enable her to better support herself. In her financial statement filed on 26 May 2017 she discloses an average weekly income from employment of $287.00, a contribution by her daughter towards rates in the sum of $24.00 per week, and maintenance from the husband in the sum of $1,000.00 per week.

45While the husband has not replied on oath to that affidavit evidence, both in his minute of orders sought filed on 8 September 2017 and in submissions at the hearing before me, he conceded the wife’s inability to adequately support herself and proposed an increase in the payments he presently makes to her.

46The threshold issue having been conceded, the questions remain as to the wife’s reasonable needs and the capacity of the husband to make payments, whether directly or through entities under his control.

47In her financial statement the wife set out her current periodic expenses, and what she would say would be her reasonable periodic expenses if she had the capacity to meet them.

48It is common ground that she is not presently meeting the various loan repayments referred to in her financial statement, and it is not suggested that she would do so if the maintenance order she seeks is made. For present purposes, therefore, the most relevant expenses are those set out at Part N of her sworn financial statement.

49Of those claimed current expenses, I do not regard those related to loans to, or education expenses for, the second respondent as being appropriate for inclusion in an assessment of the wife’s reasonable needs on an interim basis. Similarly, her claimed expenses of some $253.00 per week for various pets are not, in my view, appropriately to be taken into account.

50Adopting a robust approach to the claimed periodic expenses of the wife against that background, I find that her present expenses total approximately $1,063.00 before any consideration of her insurance expenses, motor vehicle registration and the like.

51There is no evidence to support any detailed analysis of the claims made by the wife as to the extent to which those expenses would reasonably increase if she had the capacity to spend more. By way of simple example, she claims to presently spend $80.00 per week on petrol, but that she would spend $100.00 per week if she had greater income. She claims also to presently spend $48.00 per week on maintenance of her car, but that expense would increase to $100.00 per week if she had more income. She similarly claims that her storage fees would increase as would her pet expenses; those claims are frankly difficult to understand.

52I bear in mind also the relatively short timeframe within which it is hoped by all parties that the interim maintenance order will operate.

53Doing the best that I can on the limited evidence available, and conscious of that evidence not having been tested, I find that the wife’s reasonable weekly expenses amount to approximately $1,260.00 before any allowance is made for contingencies, legal fees, and her share of the various liabilities, or for any reasonable increase in those expenses which might occur if she had a greater capacity to meet them.

54The wife’s affidavit material is largely silent as to the issue of the husband’s capacity to pay interim maintenance in the amounts sought. While that is understandable, it cannot be ignored.

55I note however that in his Form 2 application filed on 9 May 2017 the husband proposed that the amount of periodic maintenance payable by him be increased to the sum of $1,200.00 net of tax per week, albeit as a distribution from the Trust A. While the order he proposed was expressed by him as being conditional on other orders sought by him, including orders now abandoned, his proposal nevertheless can appropriately be regarded as an acknowledgement that the wife has a need for maintenance in that sum, and acknowledgement at least in part of his capacity to pay it. That was reinforced in the affidavit sworn by the husband in support of the Form 2 application in which he says that notwithstanding what he described as his deteriorating health and state of semi-retirement, his business “after tax on average earns around $250,000 per annum”. He acknowledges also having “recommenced” the spousal maintenance payments previously ordered, after stopping payments for a period as a result of a dispute between the parties arising from a unilateral withdrawal of funds by the wife.

56I am satisfied on the balance of probabilities that on an interim basis the wife has a need for spousal maintenance in the sum of $1,200.00 per week, and that the husband has the capacity to pay or cause to be paid that amount to her.

57The evidence does not support a conclusion, at least on an interim basis, that the husband has a capacity to pay any higher amount. It may well be, of course, that the further evidence to be elicited at trial will demonstrate otherwise.

3. Injunctive relief

58The wife’s evidence in support of the injunctive relief claimed by her is contained in three paragraphs of her affidavit sworn on 26 May 2017. In short, she asserts that over the period 15 June 2015 to 15 May 2017 the husband withdrew monies from a joint account in the total sum of slightly over $145,000.00, which she calculates to equal approximately $1,414.00 per week. She refers to evidence given by the husband at trial in which he said that he had personal living expenses of approximately $1,250.00 per week, which she finds unobjectionable.

59Otherwise, she notes that the husband has travelled overseas on at least three occasions since trial and points to his “willingness to fund overseas trips in preference to meeting [the] outstanding financial obligations”.

60In submissions at the hearing, the wife’s counsel pointed to differences between various items shown on the schedule of assets and liabilities tendered by the husband that day, and equivalent line items as they stood at trial in July 2015. While counsel’s observations were no doubt accurate, it is to be expected that the financial circumstances of the parties will have altered in the period since July 2015; indeed, that is the basis upon which each party sought that the evidence be reopened.

61The evidence before me at this stage does not permit any conclusion to be drawn as to the reasons for the changes that have occurred since July 2015, or as to the bona fides of the parties in any steps they have taken in the intervening period.

62The wife’s application must be considered in the context of the yet to be fully explored issues surrounding the financial circumstances of both parties. For example, their joint failure to reduce liabilities by renting out vacant property, and her own actions in unilaterally withdrawing the sum of $20,000.00 from funds standing to the credit of Superannuation Fund A on or about 28 July 2016 to meet various expenses, are already identified by the parties as issues for trial.

63The wife has not discharged the onus faced by an applicant for injunctive relief of the nature sought. I decline to make the orders proposed by her.

3. Completion of taxation returns

64Both parties seek orders requiring the completion and submission of outstanding tax returns and financial statements. Each would blame the other for the fact that there are returns and statements outstanding; nothing turns on that attribution of blame. The parties have existing legal obligations to lodge their tax returns and financial statements and I propose to order that they meet those obligations promptly.

Relief purportedly sought by the husband in his letter of 25 October 2017

65For the reasons which follow, issues which might arise from the procedural irregularity of the husband purporting to seek orders by way of correspondence rather than application need not be determined.

66The relief sought by the husband in terms of the evidence to be available at trial has, in my view, already been adequately addressed by the orders made by consent on 15 June 2017, and by the further orders made by me on 15 September, 2017.

67So that there can be no confusion, bearing in mind that both the husband and the second respondent are self-represented, I confirm that the affidavits which were in evidence before Walters J at trial in July 2015 remain in evidence for the purposes of the resumed trial. Pursuant to the orders made by His Honour on 15 June 2017, the transcript of the trial before him is accepted into evidence for the purpose of the resumed trial. Pursuant to the orders made by me on 15 September 2017, the parties are at liberty to file updating affidavit material for the purpose of the resumed trial.

68The husband also sought that transcript costs of all hearings to date be waived. The court file records that the parties have already been given, free of charge, a full copy of the trial transcript for the four days of hearing in July 2015. If any party suggests they have not received the transcript, that should be brought to the attention of the audio visual officer at the court urgently and the appropriate arrangements will be made.

69I accept that in the circumstances of this case it was appropriate for the transcript of the four days of trial before Walters J to be provided to the parties free of charge. I have already made an order waiving the hearing fees and setting down fees which would otherwise be associated with the resumed trial.

70The husband sought leave to issue further subpoenas, notwithstanding the order I made in that regard on 15 September 2017. No evidence has been provided as to the basis upon which the subpoenas listed in the husband’s letter to the court are sought to be issued. There is accordingly no information before me to enable a proper assessment as to whether or not leave should be granted.

71It remains open to the husband to make a proper application in that regard, although for obvious reasons the proximity to trial will impact on any consideration of that application.

72Otherwise, the husband sought to oppose any proposition that the second respondent be excused from personal attendance at the resumed trial. As already noted, that expressed position on his part reflected a misunderstanding of the orders already made by me; the second respondent has been excused from personal attendances only at hearings of a procedural nature.

Relief sought by the husband in his minute filed on 13 November 2017

1. The proposed payment of $100,000.00 from the husband’s superannuation member accounts to Bank A

73My observations earlier in these reasons as to the issue which potentially arises by virtue of regulation 6.22 of the SIS Regulations need not be repeated. That potential issue was not raised by any party at the hearing before me on 15 September 2017. It is appropriate that the parties have the opportunity to consider and address the matter, particularly as it was acknowledged on behalf of the wife at that hearing that there was otherwise no obvious detriment to her in the proposed application of funds to the discharge of agreed liabilities.

74The husband’s application in that regard will stand adjourned to trial, so that it may be revisited if such orders are considered necessary pending delivery of any reserved decision in the substantive proceedings.

2. Spousal maintenance

75The orders proposed by the husband in relation to spousal maintenance are already addressed in my reasons above in relation to the relief sought by the wife.

3. Ongoing payments to Bank A by way of distributions to the parties from the trust

76The orders sought by the husband in this regard are imprecise, both as to the manner and amount of any distributions, to whom they should be made, and as to any tax or other consequences. His affidavit in support of his Form 2 application contains no evidence in relation to this aspect of the relief now sought by him, as that relief was proposed for the first time in his minute of orders sought filed on 13 November 2017.

77There being no evidence in support of the proposal, and the wife not having had the opportunity to respond to it, I am not prepared to make the orders sought at this stage.

78That aspect of the interim relief sought by the husband will be adjourned to trial, again leaving open the possibility of orders along those lines being sought at the conclusion of the hearing, to operate during any period in which judgment is reserved.

4. Renegotiation of loan conditions

79Again, there is no current evidence in support of this aspect of the relief sought by the husband, and the relief sought is vague and imprecise. Again, this aspect of the relief sought was not previously raised and the wife has not had the opportunity to respond to it.

80Again, that aspect of the interim relief sought by the husband will be adjourned to trial.

81Of course, it remains open to the parties to confer to the extent possible and agree to any renegotiation of loan terms that would be to their mutual benefit in the meantime.

5. Rental of the properties at Property B and Property C

82The husband seeks orders requiring the wife to give him her written consent to Property B being rented out at $1,200.00 per month, and Property C being rented out to [Ms M] at $450.00 per week, with the rental payments on both properties being applied towards payment of the Bank A loans, and statutory expenses.

83Similar, but not identical, relief was sought by the husband in his Form 2 application filed on 9 May 2017. That said, his affidavit sworn in support of that application contained no specific evidence in relation to the issue. At the hearing before me, the husband complained that the parties were losing the opportunity to generate income from vacant properties and apply that income towards the Bank A loans; counsel for the wife said that there was no difficulty from her point of view with the concept of the properties being rented out, but that there were potential issues with the detail of the arrangements to be made.

84In her affidavit filed on 26 May 2017, the wife expressed her understanding from the trial in July 2015 that Property B was to be sold, saying that she had endeavoured to negotiate a sale with the husband that he would not agree. She said further that she “could have let” Property C. She went on to explain that in about January 2016 Property C was water damaged, and the repairs were not effected until July 2016. She says that notwithstanding those repairs the unit requires painting, plumbing, maintenance and electrical work and that she had been advised by an unnamed real estate agent not to let the unit until those repairs had been carried out. She says that she does not have the funds to undertake the works, and that the condition of the property has deteriorated still further.

85The wife has not proposed the interim sale of either property, but I acknowledge that it is her case that the property is both likely to have to be sold as part of the overall resolution of financial matters between the parties.

86In those circumstances, there can be no sensible objection by the wife to the proposition that the properties be rented out and the proceeds applied towards secured liabilities, provided that any concerns she might have arising from the suggestion that the husband be solely responsible for those transactions are addressed, including any further concerns she might have as to the authenticity and term of any rental agreement.

87I propose, therefore, to make orders requiring both parties to do all things necessary to endeavour to rent out the two properties and apply the proceeds to the Bank A debt, but on the basis of no more than a monthly tenancy, unless otherwise agreed between them, and with the consent of Bank A having been obtained. In that way, neither party’s case at trial will be prejudiced, and the present stalemate whereby rental income is potentially available in circumstances were neither party is servicing secured debt will have at least some prospect of being addressed.

6. Orders for the wife to accept distributions for the years 2014 to 2018 inclusive

88In short, this aspect of the relief sought by the husband is properly a matter for trial. I am not persuaded to make orders on an interim basis.

7. Orders for the wife to execute financial statements and tax returns for Superannuation Fund A

89I have addressed this matter earlier in these reasons, in dealing with the relief in similar terms sought by the wife. In short, I propose to make orders requiring both parties to fulfil all their statutory obligations prior to trial.

8. Proposed removal of the wife as trustee of Superannuation Fund A

90Orders were made by consent on 7 March 2014 which provided for a superannuation split in favour of the wife in the sum of $400,000.00 in cash, and required the parties to also do all things necessary to enable the wife to roll over her own accumulation and pension accounts in Superannuation Fund A into another complying fund of her choice. The orders further provided that once those steps had been completed the wife was to resign as a trustee and member of the fund.

91It is unnecessary to repeat the observations already made above about the difficulty the court faces in determining on an interim basis the value of the respective member accounts of the parties in the relevant fund. In any event, it is clear that at the very least the complete rollover of the wife’s entitlements contemplated by the orders of 7 March 2014 has not happened; in her affidavit filed on 26 May 2017 the wife says that according to the draft financial statements for the fund as at 30 June 2015, her member entitlement remained at $30,843.11. In his affidavit sworn on 9 May 2017, the husband says that in July 2015 at the wife’s request he amended “a double concessional contribution superannuation of $70,000 made in June 2014 and amend the transaction so that $35,000 concessional contribution went to her and the remaining $35,000 went to [him]”.

92In all the circumstances, and as it appears that the wife still has her own member entitlements in the fund in an amount about which no precise finding can be made, I am not prepared to make an interim order requiring her resignation as a member and trustee.

9. Proposal that the wife sign documents to enable particular shares to be registered on the Holder Identification Number of Superannuation Fund A, and severance of joint tenancies

93The husband’s Form 2 application filed on 9 May 2017 sought orders that the wife signed documents in relation to shares in [Company B] and [Company C], but not in relation to the four other companies now listed in the minute filed by him on 13 November 2017.

94Again, his affidavit filed in support of the Form 2 application did not contain any evidence relevant to that aspect of the relief sought. At the hearing before me, he explained simply that there were assets in the superannuation fund which do not presently appear on the HIN register, saying that he wanted that aspect of the matter “tidied up”. No evidence was led in relation to the issue of joint tenancies.

95In the absence of evidence, and a clear lack of urgency, that aspect of the husband’s application will also be adjourned to trial.

10. Amendment of concessional contributions and disclosure

96The relief sought by the husband in relation to the amendment of concessional contributions already made is imprecise and difficult to understand. It is, in any event, expressed to be sought “subject to examination by each party’s tax accountant”. No evidence is led in support of it. I am not prepared to make the orders sought, and the matter can be revisited at trial if appropriate.

97As noted earlier in these reasons, at the hearing before me both parties confirmed that they no longer sought the specific orders for disclosure referred to in their documents, preferring simply to place each other on notice as to the inferences which they would each ask, the court to draw at trial in the event of nondisclosure. On that basis, no submissions were made in support of the specific orders previously sought.

98In those circumstances, I am not prepared to make the orders now sought in circumstances where the husband has revived his request for them without any supporting evidence.

11. Allocation of income and capital to Ms R

99With his minute filed on 13 November 2017 the husband filed a short affidavit by his partner Ms R. That affidavit says that Ms R relies totally on the husband for his financial support, and otherwise lists a number of expenses she says that she is currently or will shortly be incurring. She says also that the husband “gives [her] $1,000 a week for provisions”.

100Leaving aside any issues as to the basis upon which it might be asserted by the husband that the orders sought by him are capable of being made, the matter was not previously raised and the wife has had no opportunity to respond to it. There is no sensible prospect of further hearing time being allocated to the matter prior to trial other than, possibly, in relation to valuation issues and other issues more critical to the progress of the case.

101I am not prepared to make the order sought on an interim basis.

12. Costs

102The order for costs sought by the husband is, presently at least, unsupported by evidence sufficient to enable a proper consideration of the matters set out in s 117(2) of the Act. That aspect of his application must appropriately await the outcome of the trial.

103The application in so far as it seeks an injunction restraining both the wife and her lawyer from “recklessly incurring lawyer fees” is misconceived. Even were it not, there is insufficient evidence to support the orders sought by the husband and the contentions raised by him (and, for that matter, several of the contentions raised by the wife) remain open to be the subject of evidence and submissions at trial in consideration of what order for alteration of property interests, if any, is just and equitable in all the circumstances.

13. Value of Company A

104Again, even were it possible for the court to “amend” a value previously agreed between the parties, no evidence is led to support the application for such an order to be made on an interim basis.

105Specific orders were made in any event on 15 September 2017 as to the steps to be taken by the parties to resolve any disputes as to valuation issues, including the valuation of the business. If the relevant values are not agreed they will no doubt be the subject of expert evidence so that they can be determined at trial.

106I am not prepared to make the order sought.

Relief sought by the second respondent

107The second respondent filed an affidavit on 12 September 2017 in support of the interim relief sought by her and summarised earlier in these reasons. While much of the evidence set out in that affidavit provides an understanding of the difficult circumstances in which the second respondent finds herself and the personal and financial struggles she has had, it is nevertheless not relevant to the relief which she seeks on an interim basis.

108More fundamentally, the second respondent purports to seek interim financial relief in circumstances where she presently has no application before the court seeking any form of relief on a final basis.

109The interim payments which she seeks can only be grounded in the establishment by her of an entitlement to payments from the Trust A. That is a matter which cannot be determined on untested and controversial evidence, and is not the subject of any application before the court in any event.

110For the same reasons, the second respondent’s application for disclosure from the husband is (at this stage at least) misconceived as no substantive relief is sought by her.

111The second respondent’s application seeking orders that she be excused from personal attendance at the resumed trial is, with no disrespect to her, also misconceived. If she wishes to pursue relief at trial it will be essential for her to participate in the hearing. If she does not seek to be heard in relation to the relief sought by the other parties, that is a matter for her choice given that she has been placed on appropriate notice of the relief sought and afforded procedural fairness.

112Otherwise, the second respondent sought leave to adduce further evidence if necessary; no further orders are required in that regard bearing in mind the orders already made by me on 15 September 2017.

Proposed orders

113Subject to any submissions as to form, I propose to make the following orders:

1.The application of the wife, [MS MACHOCKI], in so far as it seeks orders for interim payments of funds to her from the member interest of the husband, [MR MACHOCKI], in superannuation funds be and is hereby dismissed.

2.The order for urgent spousal maintenance made on 6 October 2015 be and is hereby discharged.

3.Until further order, the husband pay or cause to be paid to the wife interim spousal maintenance in the sum of $1,200.00 per week net of tax, with the first payment falling due on 17 November 2017.

4.The application of the wife in so far as it seeks orders for injunctive relief be and is hereby dismissed.

5.The husband and the wife are to promptly do all things necessary to complete and lodge any financial statements and tax returns for all entities in respect of which they have a duty to complete and lodge such documents, and any outstanding personal income tax returns.

6.Until further order, the husband and wife do all things necessary to rent out on a commercial basis [Property B] and [Property C] on the following conditions:

(a)any agreement to rent the properties or either of them shall be expressed to be capable of termination by the owner of the relevant property on no more than one month’s notice to the tenant, unless otherwise agreed between the husband and the wife and with the written consent of [Bank A] to such different terms; and

(b)the husband and the wife are to do all things necessary to pay the whole of any funds received by way of rent for the said properties or either of them to [Bank A] for application towards their secured liabilities.

7.All outstanding applications for interim relief otherwise stand adjourned to trial.

8.The costs of all parties be reserved.

I certify that the preceding [113] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate