Mallard and Mallard

[2008] FamCA 536

FAMILY COURT OF AUSTRALIA

MALLARD & MALLARD [2008] FamCA 536

FAMILY LAW – INJUNCTIONS - Preservation of property
FAMILY LAW – COSTS - Between parties

Family Law Act 1975 (Cth)

Fedele and Fedele (1986) FLC 91-744
O'Dea and O'Dea (1980) FLC 90-896
Plowman v Plowman (1970) 16 FLR 447
Davis and Davis (1976) FLC 90-062

APPLICANT: MS MALLARD

RESPONDENT: MR MALLARD

FILE NUMBER: SYC 6101 of 2007

DATE DELIVERED: 9 July 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bell J

HEARING DATE: 9 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Carney

SOLICITOR FOR THE APPLICANT: Newnhams Solicitors

COUNSEL FOR THE RESPONDENT: Mr Tocker

SOLICITOR FOR THE RESPONDENT: J. R. Quinn & Co.

Orders

1. (a)     The Husband do pay to the Wife an amount of $140,000 capped by way of interim costs.

   (b)To be paid seriatim upon the presentation of accounts by the solicitors for the Wife.

2. I suspend the operation of the order in relation to Mr T.

3. I dismiss the Respondent’s application for an injunction.

4. I reserve the costs of both parties.

IT IS NOTED that publication of this judgment under the pseudonym Mallard & Mallard is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC  6101  of  2007

MS MALLARD

Applicant

And

MR MALLARD

Respondent

REASONS FOR JUDGMENT

1. There are competing applications before me in this Court.  The applicant, who is first in time, is the wife, the respondent is the husband.  I do not intend to enter into any in-depth discussion and repeating of the history of the marriage other than to say that what appears to be before me, after some discussions I understand between the parties, are three I think it is applications.

2. On the part of the wife there is, in effect, an application for a Hogan order.  She is seeking a sum of about $140,000 she says which will enable her to fund her application for property settlement against the respondent.  Insofar as the respondent husband is concerned, he wishes to seek an injunction for exclusive use and occupation of a property that I will refer to as the R property.  The property is referred to in exhibit 13.  He is also seeking that he be relieved from compliance with an order made in September 2007 wherein he was to ensure that a Mr T was to assist the respondent in the running of properties and there was other matters which he was seeking but at this stage not being proceeded with.

3. Insofar as the wife's application for interim costs, it is trite to say that I must be satisfied of various things, but in particular, as quite properly pointed out by Carney of counsel in his submission, that I must be satisfied that generally there is a disparity of financial circumstances, that the wife really does not have the capacity to meet her own costs to enable her to adequately put her case before the Court, that she has an arguable case and there must of course be evidence as to the particulars of the approximate costs.

4. Insofar as perhaps the primary concern, clearly the wife has an arguable case.  In this case I do not intend, as I have said, to enter into a history of the marriage other than to say that if her allegations in relation to the pool of assets are correct, she will receive a substantial amount of money.  If the husband's estimate, which appears in his summary is correct, she will still receive an amount of money which will not be insubstantial. 

5. I emphasise that my endeavours yesterday to get the parties to even agree at this early stage onto a percentage distribution between them regrettably fell on deaf ears.  I do not, with great respect to Mr Chapple who has put before - I assume it is Mr Chapple's estimates in relation to costs - with respect, I think he has been very miserly towards himself.  I would be surprised if in the fullness of time the costs in this case amount, insofar as the applicant wife is concerned, to $170,000 all up, the husband having already paid an amount of $30,000 as and by way of interim order I think it was in April.  I will be staggered.  I would not be surprised, as I indicated yesterday, that the costs for each of the parties, taking into consideration all the matters, having valuers value properties, the husband has already - not complained but indicated there is a considerable amount of money expended in relation to valuations, I think they will be lucky to get out of it at $400,000 to $500,000 each.

6. However, Queensland practitioners may be more greedy than New South Wales practitioners.  That is just a little homily to belittle you, but I hope that they do consider that once the properties have been valued, which I understand they had by Mr B is it not, by consent that they should consider deeply.  I am sure their respective legal advisers will advise them, that this is a case that must be settled.  It is better for them to have the money in their own pocket than perhaps pay justifiable costs on behalf of the lawyers.  The cost estimate, as I have already briefly touched upon, by Mr Chapple is supported by affidavit and he estimates that it would be $140,000.  I say $140,000, really it is $170,000 but $30,000 as I have already said has been paid.

7. The husband complains that should he be ordered to make some payment towards the wife's interim costs that a lot of these costs have not been incurred, they are prospective costs and in effect it is the only way you can do it.  I think there is much in what he says save that I think an order will be made if in fact I am persuaded that he pay those costs on notification or an account being given to him of the distribution of the costs by the solicitors for the applicant. 

8. Should I make such an order?  The husband points to the fact that the wife owns unencumbered a property at M which is worth on the wife's estimate $1.1 million.  It is unencumbered.  The husband having to pay out by a loan in excess of $500,000 even though he mortgaged it I think to the extent of $620,000.  He received moneys from BankWest to the extent of $500,000-odd and paid out the mortgage on this property.  She has also a considerable number of horses, the number and value of which are in dispute but the husband says that they must be worth at least $140,000, and that she should cull some of these horses by way of sale and use that towards the payment of her costs.

9. He says that notwithstanding the fact on the face of it he is running a particularly successful business, the business has had a downturn, he has had trouble I think with income tax, he has had to pay almost $500,000 earlier this year by way of tax and he had run into trouble with the National Australia Bank, though I note in one of the exhibits that it was not as a result of his failure to pay the servicing fees of that bank but it may have been a personality clash between himself and perhaps one of the managers of the bank.

10. Needless to say, I am satisfied that the husband is in quite a strong financial position income wise.  The wife is not.  She has set out in her affidavit her income and outgoings and also as the husband has set out her income and outgoings and he indicates that the horse part of her estate is nothing more than a hobby and a wasting hobby at that.  That may be the case but a great difficulty in cases such as this and mindful of some of the statements made by the learned and revered Court of Appeal that I should come to a certain conclusion one way or the other in determining, perhaps not so much costs but later on insofar as an injunction is concerned, that I cannot do it on an interim matter.  I have not seen the parties.  If in fact we fought this case out in a preferred way for everybody, that is, we called evidence, we cross-examined, we would be here for days on an interim matter.  It is well-known to the legal advisers that it is impossible to do it that way and we have to do it on the papers.

11. Financially I do not think she has the capacity to fund her own fees.  It has been submitted that she should in fact mortgage the property which is in her name unencumbered.  If that is the case, it really is lessening the assets of the parties of either of them or both of them.  Equally of course if I take the money from the husband he will say quite properly that the assets are being lowered.  But obviously that amount of money would have to be added back, I would have thought.  I do not attempt to bind any of my brother or sister judges but I would have thought that any monies forwarded by the husband in the way of interim costs would have to be added back into the assets of the parties.

12. He is in a stronger position.  He has substantial income notwithstanding he also says he has substantial outgoings and it may be this will excite the parties in an endeavour to settle the matter, although coming onto the question of an injunction it appears as though these parties would not agree on what day of the week it is, which is regrettable.

13. I think that I will in all the circumstances take into consideration that he is in a better financial situation, that he is more able to adequately fund not only his own fees, which I think at this stage are only $17,000.  I will make an order that he do pay to her costs an amount capped at $140,000.  That such payments only be made upon the verification from the solicitors for the wife that moneys have been expended.

14. The next matter is, and I will touch upon this, Mr T.  Mr T is the worker who the husband agreed to ensure would assist the wife in the running of the property which is some 400 acres in size, and that was in the order of 19 September 2007.

15. I understand that the husband wants to be relieved from this for two reasons.  One in particular, that Mr T is no longer in his employ as he was, and secondly, that Mr T appears to have shifted to the wife's camp after having been employed by the respondent husband and he indicates that it is unfair in all the circumstances that he should pay for a worker to assist the wife in the running of the properties, and he appears to be inimicable to the interests of the husband. 

16. I do not believe that the second of the two grounds is in any way sufficient for me to dispense with that order, but it appears to me to be an order that really is fraught with difficulty.  What am I supposed to do?  Am I supposed to order that he pay Mr T, that he ensures Mr T goes to the property, that he picks him up in the morning?  I am going to suspend the operation of that order pending the matter coming on before Fowler J on 20 October 2008.

17. The final matter I feel for my determination is the question of an injunction.  This looms somewhat large.  I have had the opportunity of a Legal Associate here looking into the authorities and they support my views.  I would say that virtually all the cases that have been reported in this Court in relation to s.114 and exclusive use and occupation refer to the former matrimonial home.  I have not been able to find one, save one of the cases where an injunction was made against the wife from moving onto the property of the alleged mistress of the husband.  This was dismissed on appeal, it was a judgment of Watts J, and it was dismissed, as I indicated, and they have no jurisdiction.

18. I believe that I do have jurisdiction to make an order excluding the wife from the property at R under s.114 and, if necessary, for the protection of the matrimonial assets and perhaps to a lesser extent for the person safety of the husband.  The reason why this matter has come about is that these parties now are starting to act in a manner which is younger than their children.  They are being, as far as I am concerned without finding this in a fact, they would appear to me to be going out of their way on both sides to irritate the other. The reason for this is that the wife has horses on the R property and I refer to exhibit 13, where I think she has up to 11 or perhaps even more on this property and as she says and I do not think this is being cavilled with, since 1993.  It would not be the same horses I would assume, but she has had about 11 on there.  She has at least two stallions and I see that there are stallion boxes there if my memory serves me correctly.  The reason the difficulty arises is that there appears to be only one main access road to the stables which are to the rear of the property from R Road. 

19. This goes past a shed which is where the husband says that he has workers there, the wife concedes that he has workers there, and that this causes a great deal of disruption by the wife allegedly obstructing this road from viewing him with binoculars, making his life generally miserable, that it would be preferable for her to move her horses in the first event to the property at M where he says the horses could be adequately stabled, or in the alternative and if that is not attractive to me that he would pay for agistment.

20. Insofar as the move to M is concerned, once again I am put in the invidious position of not being able to decide with whom the truth more probably lies. The wife alleges that the M property has I think four stables and one yard. She says it is totally inadequate for the stabling of all horses, it is at present being used as a cattle property, the cattle having been moved from R property at some time, which is disputed, to this property of the wife's and that it is totally impossible for her to remove the horses to there. As I have said, the difficulty is I cannot decide. The husband says it is perfectly capable of being used for the stabling of horses, whereas the wife says no. 

21. The alternative which attracted me initially was that the husband has suggested that he will pay for agistment of these horses and there has been some suggestion that in fact it is a property from which one of the horses I think was purchased at V.  Unfortunately, I think that the husband did not think this out early enough.  He did have a letter which he attempted to place before me, it was objected to by Carney, counsel for the applicant wife, that there was an agistment area available.  I would have thought that if the husband was really keen on this that he would have investigated this much more thoroughly.  If he in fact put up a viable proposition to this Court, whether it was agreed to or not, if he put up a proposition that there was adequate stabling on this agistment block, that the horses would be adequately looked after, fed and watered and indicate what the cost was, he is saying he would pick up the cost, it would have been very attractive to me.  But he has not done that and the Court is left with really only the alternative of moving the horses from R property to the wife's property or leaving them there.

22. The parties have been issuing AVOs against each other at the drop of a hat.  I think there are two or three running around or have expired.  Ms D who is the husband's present partner allegedly lives on the property, that is in the house which appears on the Y property exhibit, exhibit 13, and she is finding it difficult as well and there seems to be clashes between herself and the wife.

23. I indicate that I have considered the authorities of Davis, O'Dea, Fedele and in particular I refer to a matter of Plowman, (1970) 16 FLR 447. Carmichael J admittedly dealing with the Repealed Matrimonial Causes Act, but he indicates that among the factors that will determine how the discretion is to be exercised are, can the wife be adequately housed elsewhere, can we perhaps insert in lieu of "wife", "horses"? Is money available either from the wife's own resources and her husband's to provide that housing? Once again it could have been put before me.

24. For whom is it less convenient to have to live away from the matrimonial home?  Perhaps we might say is it less convenient for the horses to live away from their home.  What are the relative proprietary rights of the spouses? Would a non molestation order be an appropriate alternative?  Well, we have got that. Is there possible use of improper methods, either by way of intimidation or fraudulent condonation to prevent the wife from pursuing her rights if the spouses continue to reside in the one home?  The possible injustice of forcing the husband to establish himself - and I extrapolate this - himself in what appears to me to be a most unfortunate situation whether it is generate by the wife or the husband or by Ms D or either of them or all of them.  They are acting as children.

25. I would have thought unfortunately that if I could have been satisfied that these horses could have been housed in another area in a safe and proper manner that I would have made the injunction but in these circumstances I will not.  But I will make it quite clear that should I be called back, and I can be called back very readily, because of allegations of improper conduct of any of the parties it will be a matter for me to determine and if in fact I determine that the improper conduct is in one camp or the other, obviously severe orders will be made subsequent thereto.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court Bell J.

Associate:     

Date:  14 July 2008