Manellis & Andreou (No 4)
[2022] FedCFamC2F 1289
Federal Circuit and Family Court of Australia
(DIVISION 2)
Manellis & Andreou (No 4) [2022] FedCFamC2F 1289
File number: PAC 2845 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 26 September 2022 Catchwords: FAMILY LAW – PROPERTY – Interim distribution – Where the husband has made financial and non-financial contributions to the property pool – Where the Court is satisfied it is in the overarching interests of justice to exercise an interim property power – Orders made.
FAMILY LAW – PROPERTY – Injunctions – Preservation of property – Where the wife unilaterally dispensed with the husband’s involvement in the companies – Where it is just and convenient to restrain both parties from increasing the liabilities of the parties so as to preserve the asset pool pending final hearing – Injunctive orders made.
FAMILY LAW – PROPERTY – Exclusive occupation of the former matrimonial home – Where there are interim Orders for the children to live with the husband – Where the wife consents to the husband having exclusive occupation of the home – Order made for the wife to vacate the property.
FAMILY LAW – PROPERTY – Payments related to the property – Where the mortgage and other outgoings are paid for by either the corporation or the Trust – Where the wife has control of the corporations – Where it is reasonable and proper for the property of the parties to maintain the former matrimonial home pending final hearing – Orders made as sought by the husband.
FAMILY LAW – PROPERTY – Spousal maintenance – Where the husband has the care of the three children – Where the husband will have sole occupation of the former matrimonial home – Where the husband had been working for the businesses of the parties of which the wife has now removed him as director – Where the wife is currently voluntarily paying the husband a sum of money and pays in excess of a child support assessment – Consideration of the husband’s reasonable needs – Orders made for spousal maintenance.
FAMILY LAW – PROPERTY – Where the husband seeks that the parties enter into a lease agreement to facilitate the running of a business – Where it is not the role of the court to make commercial decisions for the parties – Application dismissed.
FAMILY LAW – CHILDREN – Costs – Husband’s application for costs in relation to the wife’s failed attempt to re-litigate parenting issues – Where the wife’s application was summarily dismissed and the husband was wholly successful – Order made for the wife to pay the husband’s costs.
FAMILY LAW – Proceedings transferred to Division 1.
Legislation: Family Law Act 1975 (Cth) ss 74, 75, 79, 80, 114, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 6, r 1.04
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1
Cases cited: Bevan & Bevan (1995) FLC 92-600
Black v Kellner (1992) FLC 92-287
Felice & Felice [2011] FamCA 162
Fewster & Drake (2016) FLC 93-745; [2016] FamCAFC 214
Hall v Hall (2016) 93-709; [2016] HCA 23
Harris & Harris (1993) FLC 92-378; [1993] FamCA 49
In the Marriage of Pavey (1976) FLC 90-051
Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Penfold & Penfold (1980) FLC 90-800; [1980] HCA 4
MS v PS (2006) FLC 93-268; [2006] FamCA 588
Stanford & Stanford (2012) FLC 93-518; [2012] HCA 52
Strahan & Strahan (2011) FLC 93-466; [2009] FamCAFC 166
Division: Division 2 Family Law Number of paragraphs: 122 Date of hearing: 13 September 2022 Place: Parramatta Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Matthews Folbigg Pty Ltd The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Did not participate ORDERS
PAC 2845 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANELLIS
Applicant
AND: MS ANDREOU
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MURDOCH
DATE OF ORDER:
26 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Within 14 days the Husband file and serve a Further Amending Initiating Application particularising the final relief he seeks as to property issues.
2.Within 14 days thereafter the Wife is to file and serve an Amended Response particularising the final relief she seeks as to property issues.
3.Within 14 days the parties do all acts and things, sign all documents and provide all consents as are necessary to pay to the Husband’s nominated account the total sum of $100,000 from the following accounts:-
(a)Commonwealth Bank Home Loan account #...99;
(b)Commonwealth Bank Home Loan account #...80;
(c)Commonwealth Bank Home Loan account #...36;
(d)Commonwealth Bank Home Loan account #...99;
with such sum to be categorised as an interim property distribution.
4.Within 28 days the wife shall pay the husband’s costs of and incidental to the interim applications filed 17 January 2022 and 15 February 2022 in the fixed sum of $4,321.00.
5.By consent and pending further order both parties are restrained by injunction from dealing with any and all joint accounts and joint offset accounts of the parties including but not limited to the parties redrawing or increasing the loans to the Commonwealth Bank for accounts #...99 and #...80, other than to comply with Order 8 herein.
6.Within 30 days the Wife is to vacate the property at AC Street, Suburb G in the state of New South Wales being the whole of land in folio identifier … (“the AC Street, Suburb G property”) and the Husband shall thereafter have exclusive use and occupation of same, pending further Order.
7.Pending further Order, the Wife shall be responsible for all statutory rates and charges, utilities, insurances, outgoings and expenses in relation to the AC Street, Suburb G property and shall make all such payments as and when they fall due.
8.Pending further Order, the parties be restrained by injunction from doing any act or thing to cause the prevention of payments being made from the AD Business Trust account #...40 into the parties’ joint account on account for the mortgage for the AC Street, Suburb G property.
9.Pending further Order, pursuant to sections 72 and 74 of the Family Law Act 1975 (Cth) (“the Act”) the Wife pay to the Husband Spousal Maintenance in the amount of $695.00 per week (“the maintenance”).
10.That for the purpose of Order 9, the Wife pay to the Husband the maintenance on the first Friday following the date of these Orders and each fortnight thereafter to an account nominated by the Husband in writing, as identified in Order 11 below.
11.That within forty-eight (48) hours of the date of these Orders the Husband provide to the Wife in writing his nominated bank account details, including the Banking institution, the account name, the BSB and the account number.
12.In the event that either party fails or neglects to sign any document pursuant to these Orders, a Registrar of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed to execute such documents in the name of the party in default so as to give validity and operation to these Orders pursuant to s 106A of the Family Law Act1975 (Cth) upon being satisfied of such failure or neglect by way of affidavit evidence.
13.That costs of the Application in a Proceeding filed 3 August 2022 are reserved to the conclusion of the matter.
14.All outstanding interim applications be otherwise dismissed.
15.The matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia, Parramatta Registry noting the criteria with respect to that transfer are identified in paragraph 121 of these reasons.
16.The matter is referred to the National Assessment Team for consideration of listing before a Judicial Registrar of Division 1 for case management AND IT IS NOTED THAT the parties will be contacted directly by the National Assessment Team confirming the relisting of proceedings and the next listing date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Manellis & Andreou (No 4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUGDE MURDOCH
INTRODUCTION
These are proceedings for parenting and property adjustment between the husband and wife subsequent to their marriage in 2007 and separation in November 2018.
There are three children of the relationship:-
·Y born in 2012;
·X born in 2014; and
·Z born in 2017.
(“the children”).
The children live with the husband pursuant to interim Orders made on a defended basis on 4 February 2022.
For determination is the husband’s interim application seeking interim property orders, exclusive occupation of the former matrimonial home, interim spousal maintenance, various injunctive orders and an outstanding application for costs.
LITIGATION BACKGROUND
The substantive proceedings commenced by way of the husband’s filing of an Initiating Application seeking parenting orders only on 26 May 2021. Property issues were added to the proceedings by way of the husband filing a further Amending Initiating Application on 3 August 2022. On this same date the husband filed an Application in a Proceeding seeking an urgent listing on short notice of the current interim application.
The interim application was listed on short notice for directions in the duty list on 11 August 2022. On this date the wife was legally represented. Orders and directions were made listing the interim property application for interim hearing on 7 September 2022 with the wife being directed to file and serve her response material and evidence in support of the relief sought by her by no later than 4:00 pm on 1 September 2022.
The wife’s solicitors filed a notice of Ceasing to Act on 25 August 2022.
Two interim parenting applications filed by the wife on 17 January and 15 February 2022 were listed for hearing on 6 September 2022. On that date the wife sought an adjournment. The adjournment application was denied and the interim parenting applications were thereafter summarily dismissed. An order for costs of the Independent Children’s Lawyer was made on this date. The husband sought an order that the wife pay his costs and submissions were made by the husband in support of such application. The wife was afforded the opportunity to consider her submissions in response overnight and the hearing of the costs application was adjourned to the next day, being the hearing date of the current interim application filed by the husband.
There was no appearance by the wife at the listing of the husband’s interim application on 7 September 2022 despite the wife being granted leave to appear at such interim hearing by video conference in circumstances where she had forwarded ex parte correspondence to Chambers attaching a screenshot of a COVID 19 positive rapid antigen test and a medical certificate. The matter was adjourned for hearing to 13 September 2022 and the time for compliance by the wife to file her material in response was extended to 12:00 pm on 12 September 2022. An Order was made that in the event the wife did not file her material in accordance with the Orders and directions made that day the husband’s interim application would proceed on an undefended basis on 13 September 2022. The husband was directed to file and serve a proposed Minute of Order particularising the orders he sought at the interim hearing by no later than 5:00 pm on 7 September 2022.
The husband filed his proposed Minute of Orders as directed.
The wife did file a Response; such response did not address the relief sought by the husband but sought a further adjournment of the interim hearing listed 13 September 2022. The wife filed four affidavits, one of which totalled 157 pages in length including annexures. The wife did not file a Financial Statement in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). It does not appear to be in dispute that the wife has not provided financial disclosure pursuant to the Rules nor as specifically requested by the husband.
There is a long line of authorities setting out in clear and unequivocal terms the onus on parties to make a full and frank disclosure of all their financial circumstances: Black v Kellner (1992) FLC 92-287. The duty is absolute and is a continuing onus throughout the litigation process. It has been codified in Chapter 6 of the Rules. It is critical to the functioning of the jurisdiction.
The wife appeared in person at the interim hearing on 13 September 2022 and pressed her application for an adjournment. Such application was opposed. The adjournment application was denied with oral reasons being provided on that day. The wife’s subsequent oral application that I recuse myself from the matter was also denied.
At the interim hearing the wife relied on one of the Affidavit’s filed by her on 12 September 2022 and made submissions in response to the relief sought by the husband.
COMPETING PROPOSALS
The orders sought by the husband are broadly:-
·for payment of the sum of $100,000 by way of interim property distribution;
·that the wife be restrained from accessing, withdrawing, transferring or in any way dealing with any joint accounts and joint offset accounts of the parties;
·that pursuant to section 114(1) of the Family Law Act 1975 (Cth) (“the Act”) within 21 days the wife vacate the property at AC Street, Suburb G (“the AC Street, Suburb G property”) and thereafter the husband have sole use and exclusive occupation of same;
·that other than the personal items of herself and her mother, the wife be restrained from removing any furnishings or contents from the AC Street, Suburb G property other than as agreed by the parties;
·if the husband’s application for sole use and occupation of the AC Street, Suburb G property is successful, then the wife pay to him interim spousal maintenance in the sum of $2,090 per week;
·in the event the husband’s application for sole use and occupation of the AC Street, Suburb G property is unsuccessful then the wife pay to him interim spousal maintenance in the sum of $2,940 per week;
·that the wife be responsible for and pay all outgoings relating to the AC Street, Suburb G property including mortgage payments, statutory rates and charges, other utilities and insurances; and
·that within seven days the parties do all acts and things necessary so as to finalise and approve documents related to AE Pty Ltd City R (“AE Pty Ltd City R”) lease agreement including signing the most recent version of the lease provided by the landlord and providing a replacement bank guarantee to the landlord.
The last issue requiring determination is the reserved costs of the husband of the interim parenting applications filed by the wife and summarily dismissed on 6 September 2022.
The husband relied upon:
·the Application in a Proceeding filed 3 August 2022;
·the affidavit of the husband filed 3 August 2022;
·the husband’s Financial Statement filed 3 August 2022;
·paragraphs 21 and 22 of the husband’s affidavit filed 12 September 2022 (with the Court’s leave);
·the husband’s Proposed Minute of Orders filed 7 September 2022 marked as exhibit H2;
·the husband’s Costs Notice filed 12 September 2022; and
·the Case Outline filed 5 September 2022.
During the course of the interim hearing the wife advised she opposed the orders sought by the husband save for the order for sole use and exclusive occupation of the AC Street, Suburb G property.
The wife relied upon:-
·the Response to an Application in a Proceeding filed 11 September 2022; and
·the affidavit filed by the wife on 12 September 2022 at 9:36 am.
BACKGROUND
The following background is drawn from what appears to be the uncontested history of the matter to date.
The wife was born in 1981 and is currently 41 years old.
The husband was born in 1983 and is currently 39 years old.
The parties commenced a relationship in 2001.
In 2002 the parties purchased a property at AF Street, Suburb AG for the sum of $375,000. The purchase was funded by way of the first home buyers grant, $6,000 of savings of each of the parties and a loan secured by way of mortgage over the property.
In 2005 the wife was in a car accident. She sustained injuries and subsequently filed a claim for compensation.
During the course of the relationship the parties purchased and operated three businesses.
In 2005 the parties purchased a business together with the property from which the business was conducted at AH Street, Suburb AJ (“the AH Street, Suburb AJ property”). AE Pty Ltd Suburb AJ was purchased for the sum of approximately $520,000. The AH Street, Suburb AJ property was purchased for the sum of approximately $1,000,000. The sum of approximately $110,000 was paid for stamp duty. The parties were both directors and equal shareholders of AE Pty Ltd (“AE Pty Ltd Suburb AJ”). AE Pty Ltd Suburb AJ was set up as the corporate trustee for AK Family Trust. Both parties are the specified beneficiaries for this trust. Both parties worked as directors for AE Pty Ltd Suburb AJ.
The parties were married 2007.
In 2007 the parties purchased a property at AL Street, Suburb AM (“the AL Street, Suburb AM property”) for the sum of $680,000.00. $136,000 plus the stamp duty costs were paid from joint savings acquired from AE Pty Ltd Suburb AJ business income and a mortgage in the sum of $544,000.
In 2008 the $500,000 received by the wife for compensation relating to the motor vehicle accident was applied towards the mortgage on the AL Street, Suburb AM property.
In 2009 the husband was diagnosed with a form of cancer. He received a payout from Employer AN in the sum of $800,000. The husband deposes that such sum was applied as follows:-
·$250,000 was paid to the wife as reimbursement for one half share of the $500,000 she paid on to the AL Street, Suburb AM loan from her own compensation payment;
·$100,000 was paid to the wife as a wedding present;
·$20,000 was paid by way of a deposit for a lease on a motor vehicle;
·$80,000 to $90,000 was paid towards the husband’s taxation liability;
·some funds were applied towards family holidays and the balance was deposited into the husband’s savings account.
Y was born in 2012.
In 2012 the parties sold the AF Street, Suburb AG property and the net proceeds of between $150,000-$180,000 were placed into savings.
The AL Street, Suburb AM property was sold in 2013 with the net proceeds of sale being approximately $900,000.
In 2014 the parties purchased a business at Suburb AO for the sum of $550,000. The husband deposes that he paid the stamp duty costs from his savings, with the balance of the purchase price being funded by way of mortgage. The parties were both directors and equal shareholders for the business AE Pty Ltd Suburb AO (“AE Pty Ltd Suburb AO”). AE Pty Ltd Suburb AO was set up as the corporate trustee for AP Business Trust and this company owned the lease. The parties and the children are the primary beneficiaries for this trust. The parties also set up AE Holdings Pty Ltd which is the corporate trustee for AQ Holding Trust. AE Holdings Pty Ltd owns the Suburb AO business. The parties are joint appointors. The parties were the directors and equal shareholders for this company. The parties and children are the primary beneficiaries for the trust. Both parties worked as directors for AE Pty Ltd Suburb AO.
X was born in 2014.
In December 2015 the parties purchased the AC Street, Suburb G property. The purchase was funded by way of increasing the loan against the AH Street, Suburb AJ property together with a mortgage in the sum of $3,232,000 and any additional sums required from the wife’s savings.
In 2016 the parties purchased a third business at City AR for the sum of $450,000. The total purchase price was funded from joint savings of the parties. The parties were both directors and equal shareholders of AE Pty Ltd City AR (“AE Pty Ltd City AR”). AE Pty Ltd City AR was set up as the corporate trustee for AD Business Trust. The parties and the children are the primary beneficiaries for this trust. Both parties worked as directors for AE Pty Ltd City AR.
Z was born in 2017.
The parties separated on a final basis under the one roof in November 2018.
In November 2019 the parties commenced a nesting arrangement whereby one of them lived at the AC Street, Suburb G property with the children while the other lived in an apartment at Suburb U. The party who lived away visited the AC Street, Suburb G property each day to spend time with the children but then left to sleep at the apartment.
In July 2020 the husband moved into a unit at Suburb V. The mother and children remained living at the AC Street, Suburb G property.
In November 2020 the husband withdrew the sum of approximately $164,000 from the wife’s personal savings account. He deposes that he applied these funds towards outstanding legal fees for NCAT proceedings that relate to the AC Street, Suburb G property.
On 24 November 2020 the wife contacted the Commonwealth Bank Australia and instructed them to place a stop on all credit cards from the company accounts.
On 15 December 2020 the wife’s solicitors wrote to the husband’s solicitors regarding the freezing of bank accounts and alleging that the husband had directed that payments from the Authority AW be deposited into his personal bank account. The husband deposes that he had set up a different bank account into which payments from the Authority AW were to be made. He alleges that he took these measures as the wife had sought to remove him from the business subsidy and had frozen the business accounts on three separate occasions.
In January 2021 the wife refused to sign the option to renew the lease for the City AR Business. The husband indicated that he might appoint a new company as Trustee for City AR to sign the lease and the wife subsequently signed the option on the lease. The wife has not signed the lease and bank guarantee as required by the Lessor.
On 24 May 2021 the wife unilaterally removed the husband as director and secretary of AE Pty Ltd Suburb AJ and AE Pty Ltd Suburb AO.
In June 2021 the wife unilaterally removed the husband as Director and Secretary of AE Pty Ltd City AR.
On 16 June 2022 the husband received correspondence from PayPal indicating that a number of transactions made by him totalling the sum of $240,645.56 had been reversed and the reversed payments paid into the AD Business Trust Commonwealth Bank Account. The husband does not give any evidence as to the application of such funds by him within the space of 7 days. He does annex various emails between himself and an employee of the Commonwealth Bank of Australia which reports that the sums were paid as follows between 14 to 21 June 2022:
·$11,477.19;
·$9,167.59;
·$4,448.90;
·$2,358.04;
·$20,971.06;
·$2,222.78; and
·$190,000.00.
On 2 August 2021 the parties’ divorce was granted and on 3 September 2021 the divorce became final.
On 4 February 2022 interim parenting Orders were made after a defended hearing that the children live with the father and spend time with the mother as agreed and failing agreement on a supervised basis each Sunday from 10:00 am to 5:00 pm.
The mother’s appeal from such interim parenting Orders was dismissed on 14 July 2022.
On 6 March 2022 the wife commenced paying to the husband the sum of $875 per week “for the children”. The wife is only assessed to pay the sum of $358.15 per week.
On 14 June 2022 the wife commenced paying to the husband an additional $850 per week which he deposes he applies towards his rental expenses.
On 21 July 2022 the husband forwarded to the wife a screenshot of what appears to be a snapshot of a summary of his current financial circumstances regarding bank account #...19. It appears to show that the husband had $31.44 in available funds, a balance of $407.83 and his “monthly spend” for “eating out” was $3,105.27.
The husband messaged to the wife:
Hi [Ms Andreou],
My current balance and I haven’t ordered lunch for the kids for tomorrow or bought groceries.[1]
The wife replied:
Then I guess that’s a reflection on you as a father…Not really on me..
You got 7000 dollars paid out to you in the course of 1 month! Your rent is paid and your car is paid. Then that’s your problem not mine.[2]
[1] Husband’s affidavit filed 3 August 2022, Exhibit I.
[2] Husband’s affidavit filed 3 August 2022, Exhibit I.
The husband concedes that he received $7,000 in June/July 2022 by way of shareholder distributions. He asserts that of this sum he paid the sum of $1,400 towards the cost of supervised time with the children, $1,500 to a staff member as a loan for rent and bills as he alleges the wife did not approve the staff’s pay in early July, with the balance applied towards living expenses for himself and the children. The husband does not list the sum of $1,500 in his Financial Statement filed on the same day as his affidavit as monies owing to him so it appears that he has either forgiven this debt or it has been repaid to him.
On 23 July 2022 the wife transferred funds from the AE Pty Ltd Suburb AO and AE Pty Ltd, Suburb AJ accounts into the parties’ joint Commonwealth Bank of Australia home loans as follows:-
·the sum of $298,587.16 from the Suburb AJ account; and
·the sum of $251,567.88 from the Suburb AO account.
It does not appear to be in dispute that as a result of such deposits the parties are now in advance on the home loan repayments and these funds are now available to redraw.
Despite seeking orders for interim property adjustment, the husband has not particularised the relief he seeks pursuant to s 79 of the Family Law Act 1975 (Cth). The husband merely seeks leave to amend his final application upon the wife providing full and frank disclosure of her financial circumstances and the release of the single expert valuation reports for the properties and companies. This does not assist the Court dealing with the husband’s interim application and its case management of the matter, nor does it assist the wife in understanding the substantive case she has to meet. Directions will be made for the husband to file an Amended Application particularising the orders for property adjustment prior to the wife filing her Amended Response.
Interim Property Distribution
The husband identified reliance on s 80 the Act to ground the payment of the lump sum sought by him by way of interim property distribution. Whilst not particularised, the husband seeks property adjustment on a substantive basis pursuant to s 79 of the Act.
I should only make orders pursuant to s 79 of the Act if I am first satisfied that it is just and equitable to do so. It must not be assumed that the parties’ rights or interests should be different to that which already exists: Stanford & Stanford (2012) FLC 93-518 (“Stanford”).
I find that the requirements identified in Stanford are satisfied in this matter as the parties in this matter, having married and mixed their finances as a family, have now separated. It is therefore not possible for them to continue to mutually enjoy the accumulated assets.
The Full Court in Strahan & Strahan (2011) FLC 93-466 revisited the applicable principles to interim or partial property orders, and set out two steps being:-
·Establishing that s 80(1)(h) is enlivened. The test is not confined to “compelling circumstances”. More is required than the mere fact that upon a final hearing the applicant would receive the property sought: Marchant & Marchant (2012) FLC 93-520. This first step requires the court to be satisfied that it is in the overarching interests of justice to exercise such power as opposed to the preference of a single exercise of power at a final hearing. The Full Court has cautioned that:
…As a generality, the interests of the parties and the court are better served by there being one final hearing of s. 79 proceedings...[3]
·The second step requires regard to be had to the “usual matters in a S.79 determination” and therefore some assessment (although not detailed) of s 79 factors.
[3] Harris & Harris (1993) FLC 92-378, 79,929-79,930.
As the making of these orders is an imprecise exercise, any discretion ought be:-
·Conservative so as to ensure the final property outcome is not compromised; and
·So that the remaining property is sufficient to meet the legitimate expectation of both parties at the final hearing – a significant matter having regard to any significant disclosure failures; and
·The interim or partial order is capable of being reversed or adjusted if it is subsequently considered necessary to do so.[4]
[4] Medlow & Medlow (2016) FLC 93-692, 81,090.
Given that an applicant is effectively seeking access to their own funds or matrimonial asset, it is unnecessary for there to be a “detailed enquiry as to the purposes for which the funds are to be used”: Felice & Felice [2011] FamCA 162 at [12].
The wife has not filed a Financial Statement. The husband’s draft Balance Sheet annexed to his Case Outline filed on 5 September 2022 asserts that the property of the parties is as follows:-
ASSETS
No
Ownership
Description
Wife’s Value
Husband’s Value
1
J
AC Street, Suburb G NSW (F/I …)
$6,000,000.00
2
J
AH Street, Suburb AJ NSW
$4,000,000.00
3
J
Commonwealth Bank Account #...50 (bal @ 22.7.22)
$4,632.00
4
H
Commonwealth Bank Account #...19 (bal @ 21.7.22)
$31.00
5
H
ANZ Access Advantage Account #...98 (bal @ 13.5.22)
$100.00
6
H
ANZ Online Saver Account #...63 (bal @ 15.2.22)
$832.00
7
H
Westpac eSaver Account #...62 (bal @ 22.5.22)
$6.00
8
H
Westpac Choice Account #...61 (bal @ 29.3.22)
$65.00
9
W
Bank account – NK
NK
10
W
Bank account – NK
NK
11
J
AE Pty Ltd (City AR) (ACN …)
NK
12
J
AD Business Trust
NK
13
J
AE Pty Ltd (Suburb AJ) (ABN …)
NK
14
J
AK Family Trust
NK
15
J
AE Holdings Pty Limited (ACN …)
NK
16
J
AQ Holding Trust
NK
17
J
AE Pty Ltd Suburb AO (ACN …)
NK
18
J
AP Business Trust
NK
19
H
AS Pty Ltd (ABN …)
NK
20
J
Manellis Group Pty Limited (ABN …)
NK
21
J
Manellis Investments Pty Limited (ACN …) (corporate trustee for the parties' self-managed superannuation fund)
NIL
22
W
Investments/shares – NK
NK
23
H
Motor Vehicle 1 (@ 24.6.22)
$142,910.00
24
W
Motor Vehicle 2
NK
25
J
Household contents at AC Street, Suburb G
$7,500.00
26
H
Household contents
$2,500.00
TOTAL
$0.00
$10,158,576.00
LIABILITIES
28
J
AC Street, Suburb G Property mortgage - Commonwealth Bank Loan account #...99 (bal @ 10.08.22)
$300,000.00
29
J
AC Street, Suburb G Property mortgage - Commonwealth Bank Loan account #...80 (bal @ 10.08.22)
$900,000.00
30
J
AC Street, Suburb G Property mortgage - Commonwealth Bank Loan account #...36 (bal @ 10.08.22)
$1,400,000.00
31
J
AC Street, Suburb G Property mortgage - Commonwealth Bank Loan account #...01 (bal @ 10.08.22)
$30,000.00
32
J
Suburb AJ propery mortgage (AE Pty Ltd Suburb AJ)
$900,000.00
33
H
Chattel Mortgage Loan to Company AT (total loan amount: $241,317.56; bal @ 26.6.22)
$182,873.00
34
H
Westpac Credit Card Account #...86 (bal @ 29.5.22)
$15,114.00
35
H
Bank AU Mastercard Credit Card Account #...71 (bal @ 6.6.22)
$12,972.00
36
H
Bank AU Credit Card Account #...43 (bal @ 2.6.22)
$31,279.00
37
H
Amex Credit Card Account #...01 (Mr Manellis ATF AD Business Trust ABN …) (bal @ 19.6.22)
$25,134.00
38
W
Credit Cards – NK
NK
39
W
Personal and company loans – NK
NK
40
J
Estimated ATO debt
NK
41
H
Costs from Appeal matter owed by Wife to Husband
$9,173.71
TOTAL
$0.00
$3,806,545.71
SUPERANNUATION
No
Member
Name of Fund & Type of Interest
Wife's Value
Husband's Value
42
H
Manellis Investments Pty Ltd ATF The Manellis-Andreou Superannuation Fund – Bank AV Cash Management Account #...92 (SMSF) (bal @ 31.12.21)
$2,757.00
43
W
Superannuation entitlements NK
NK
44
W
Manellis Investments Pty Ltd ATF The Manellis-Andreou Superannuation Fund – Bank AV Cash Management Account #XXXX (SMSF)
NK
TOTAL
$0.00
$2,757.00
GROSS ASSETS
$0.00
$10,158,576.00
LESS LIABILITIES
$0.00
$3,806,545.71
NET ASSETS
$0.00
$6,352,030.29
ADD SUPERANNUATION
$0.00
$2,757.00
NET TOTAL ASSETS (INCLUDING SUPERANNUATION)
$0.00
$6,354,787.29
The submissions made on behalf of the husband in support of the relief sought was that:-
·The husband is in financial distress.
·The wife has control over the parties’ companies and she unilaterally determines the husband’s income.
·The husband has outstanding fees to his lawyers pursuant to his Costs Notice filed 12 September 2022 of $78,961.65.
·As at 21 July 2022 he had $176.13 in his savings account.
·On the husband’s evidence the net asset pool is valued at approximately $6,300,000.00.
·There is no danger if the Court makes the interim property distribution to the husband as sought in the sum of $100,000 that the wife would not be able to “clawback” the funds at a final hearing if required.
·Exhibit H1, page 35 evidences that the parties have available funds far in excess of the sum sought by the husband that is able to be redrawn on their various loan facilities.
·The parties have previously earned considerable sums from their exertions in the businesses.
·The wife clearly has the capacity to pay such sum and has paid sums subsequent to the parties’ separation however such sums are solely at her discretion.
The wife submitted that:-
·The parties agreed that the wife would operate AE Pty Ltd Suburb AO and the husband would operate AE Pty Ltd City AR.
·The husband has been withdrawing funds unilaterally and she became concerned that the businesses would not be able to meet their financial obligations. She alleges that the husband continued to deposit company funds into his own personal bank account.
·The wife became so concerned as to the financial transactions undertaken by the husband that she removed him as a director from AE Pty Ltd and AE Pty Ltd Suburb AO as the husband refused to accept and sign an undertaking that he would not alter bank accounts, abuse funds and continue to conduct elusive transactions so as to obtain money as per page 94 of her affidavit.
·The husband has had the benefit of significant sums withdrawn from bank accounts without the wife’s knowledge or consent including a sum totalling $68,000 in February 2022 alone and sums totalling $135,000 withdrawn by the husband previously.
·The husband has been paid monthly shareholder “distributions” of $8,000 a month in addition to other expenses including payment of his credit cards, rental and car expenses. The wife has always paid the expenses for the children.
·There is currently a $500,000 debt owed by the parties to the Australian Taxation Office. There is no evidence to support such an assertion.
·The wife asserts that there has been a decline in income from the businesses.
It does not appear to be in contest that:-
·At the commencement of cohabitation both parties were engaged in employment on a full-time basis. The husband asserts both parties had net assets of approximate equal value.
·The parties jointly applied their efforts and income to purchase various items of real estate and the three businesses.
·Both parties applied their efforts to the operation of the businesses. The husband deposes that he undertook general administrative work, dealt with stakeholders, undertook financial management and further assisted in practical tasks with the day-to-day operations of the businesses. He paid wages and ensured government regulations were met, ensured accounts were up-to-date as well as government rebates paid and ensured maintenance of the service. The husband continued working outside of the businesses as a finance professional until approximately 2012.
·The wife was primarily involved in the “front-end” management of the businesses with staff recruitment, process, procedure and regulatory compliance.
·The wife’s uncle assisted the parties to purchase the AH Street, Suburb AJ property by way of an interest free personal loan in the sum of $100,000. This sum was paid off within four years. The husband’s father assisted the parties to purchase the AH Street, Suburb AJ property by consenting to a mortgage being raised against his property in the sum of $280,000 which was paid in total by 2020/2021.
·Both parties during the course of the relationship received lump-sum payments as particularised earlier in these reasons.
·The husband deposes that during the course of the relationship both parties applied their income received from shareholder distributions and director’s drawings towards the benefit of the relationship. They both contributed equally to joint living expenses, bills, rates, groceries and child-related expenses.
·The husband deposes that the parties generally shared the house work and childcare responsibilities between them equally.
·Subsequent to the husband vacating the AC Street, Suburb G property the wife was primarily responsible for caring for the children.
·Subsequent to the interim parenting Orders made on 4 February 2022 the husband has been responsible for the care of the children whilst spending supervised day only time with the wife.
·There is a current child support assessment in place in which the wife is to pay the husband the sum of $358.15 per week. The wife instead pays the husband the sum of $875 per week.
I am satisfied the husband has made both financial and non-financial contributions to the property pool. I am satisfied that it is in the overarching interests of justice for the Court to exercise an interim property power at this time and pay to the husband the lump sum sought of $100,000. I am satisfied that the wife has control over the parties’ companies and unilaterally determines the husband’s income. I am satisfied that there is a source of funds for the lump sum payment sought and that such lump sum can be taken into consideration upon the finalisation of the parties’ property proceedings. Having regard to the alleged value of the asset pool I am satisfied that there are sufficient funds in the property pool to support the interim payment being made now and will not defeat the wife’s claim for property settlement even potentially taking into account the sums of money disbursed to the husband post-separation. I will therefore make the order as sought by the husband.
Injunctive Orders Sought re Joint Bank Accounts
The husband further seeks an injunctive order restraining the wife from dealing with any joint accounts or joint offset accounts. It was submitted on behalf of the husband that the order is sought to preserve the asset pool in circumstances where the wife unilaterally dispensed with the husband’s involvement in the companies.
During the course of the interim hearing the wife advised that she consented to orders being made restraining both parties from dealing with any joint accounts or joint offset accounts, including redrawing or increasing the loans with respect to the two Commonwealth Bank loan facilities. The husband did not oppose this course of action. I am satisfied it is just and convenient to restrain both parties from increasing the liabilities of the parties so as to preserve the asset pool pending final hearing.
Sole Use and Occupation of the AC Street, Suburb G Property
The husband seeks an order granting him sole use and exclusive occupation of the AC Street, Suburb G property. To the wife’s credit during the course of submissions on this issue she indicated to the Court that she was willing to leave the AC Street, Suburb G property so that the children can move back into it and are more comfortable. The wife advised the Court that she is currently looking for a property to rent and asked that the Court allow 28 days rather than the 21 days sought by the husband to arrange for the relocation of herself and her mother. The father did not make submissions in this regard. I am satisfied it is appropriate to allow the wife 30 days to vacate the property.
The husband further seeks an order that the wife be restrained on vacating the AC Street, Suburb G property from removing any furnishings or contents save for the clothing and personal effects of her mother and herself. The mother does not consent to this order.
The husband vacated the AC Street, Suburb G property in July 2020. His Financial Statement asserts he has household contents to the value of $2,500. He has had the care of the children since February 2022. There is no evidence as to the items the husband requires from the AC Street, Suburb G property. Pursuant to the orders made today the husband is to receive a lump sum payment of $100,000. He does not depose as to why he could not apply some of these funds to purchasing any further items he feels he requires. I am not satisfied there is a sufficient evidentiary foundation to restrain the wife from removing the furniture and other items she has had the sole use of since July 2020. I will not make such an order. It is a matter for the wife as to any items she may wish to leave for the children at the AC Street, Suburb G property; furniture or otherwise.
Payments Related to the AC Street, Suburb G Property
The husband seeks an order that pending further order “the wife be responsible for all mortgage payments, statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the AC Street, Suburb G property and shall make all such payments as and when they fall due and hereby indemnifies the husband in respect of all liabilities incurred prior to the date of transfer.” I assume in circumstances where the husband is not seeking a transfer of the wife’s interest in the AC Street, Suburb G property to the husband on an interlocutory basis that the indemnity sought is a typographical error.
There is no evidence as to the source of funds for payment of the mortgage on the AC Street, Suburb G property to date. I asked the parties during the interim hearing the source of funds for payment of the mortgage historically. The husband stated that from the AD Business Trust the sum of $3,500 was paid each month into the parties’ joint account on account of the mortgage payments. The husband advised the Court in those circumstances he sought to amend his relief sought so that an order be made that:
pending further the parties be restrained by injunction from doing any act or thing or causing or preventing payments being made from the [AD] Business Trust account #...40 into the parties joint account on account for the mortgage for the former matrimonial home.
The wife stated that she did not agree that the entirety of the mortgage payment has been paid from AD Trust. The wife stated that “half of the mortgage is made out of that account and the other half of the mortgage has been made out of the Suburb AO and Suburb AJ accounts as well so he’s paid his half of the assets and I’ve paid my half of the assets.”
This is difficult to determine in the absence of any evidence, merely competing assertions from the bar table. I was not taken to any documents to provide any details as to the “Suburb AO and Suburb AJ accounts.”
It appears to be uncontroversial that the mortgage payments and other outgoings relating to the AC Street, Suburb G property have been paid from either the corporation or the Trust. The wife has control of the corporations. There is no evidence as to what the required weekly mortgage repayments are nor what other costs arise from the AC Street, Suburb G property. It does not appear to be suggested by the wife that the property of the parties and income produced is not sufficient to continue to maintain payments relating to the AC Street, Suburb G property. In circumstances where the husband has been unilaterally removed as a director it is reasonable and proper for the property of the parties and the income it produces to maintain the AC Street, Suburb G property pending a final hearing. I will make Orders as sought by the husband.
Spousal Maintenance
As the husband is, by consent, to obtain exclusive use and occupation of the AC Street, Suburb G property he seeks that the wife pay to him spousal maintenance in the sum of $2,090 per week.
The wife opposes such an order.
The husband submitted that:-
·The husband did have a capacity to earn and was earning money from the business. The $1,725 he now receives is paid solely at the discretion of the wife.
·His expenses and needs are set out in his Financial Statement and are $3,000 a week. If the mortgage relating to the AC Street, Suburb G property is paid out of business funds, then the $2,090 as sought by him will suffice.
·The husband has the three children in his care.
·There is an implied concession from the wife that the husband has needs of $1,725 per week.
·If there is any doubt as to the wife’s capacity to pay as the Court is unsure as to the financial status of the parties, this is because the wife has not provided a full and frank disclosure – no tax returns, no statement of accounts, no financial records and no answers to particulars sought in July 2022. In those circumstances the Court does not need to shy away from a robust exercise of its discretion.
The wife submitted that:-
·She did not submit a Financial Statement as she was only served on 4 August 2022. She realises it is to her detriment to not have filed a Financial Statement.
·The husband has taken out sums of money so why is he not able to support himself?
·Subsequent to the parties’ separation the husband has been receiving monthly shareholder distributions; they are currently between $6,000 and $8,000 a month. Pages 20 to 32 of the wife’s affidavit show text messages from the wife to the husband setting out lump sum payments made. It is difficult to read some of these snap shots and the bottom photograph for many of the annexures does not show the whole transaction so it is difficult to ascertain what monies in total for the period of time the wife asserts have been to the husband in shareholder distributions. It appears that at least in May 2022 as an example, the total of $10,000.00 was paid.
·She has been busy trying to maintain and protect the business.
·Her prior solicitor did not provide her with proper legal advice.
Section 72 of the Act imposes an obligation on spouses for mutual support. It is one of the incidents of consortium which is explicitly recognised in the Act: In the Marriage of Pavey (1976) FLC 90-051.
Section 74 of the Act provides that in proceedings with respect to the maintenance of a party the court may make such order as it considers proper. It is settled that “proper” in this context means “appropriate to the circumstances”: Fewster & Drake (2016) FLC 93-745.
A four step process was formulated by Justice Coleman in MS v PS (2006) FLC 93-268 as to whether an order for spouse maintenance should be made being:-
(a)to what extent is the applicant unable to support themselves;
(b)what are the applicant’s reasonable needs;
(c)what capacity does the respondent have to meet an order; and
(d)if steps (a) to (c) favour the applicant, what order is reasonable having regard to s 75(2) of the Act?
Is the Applicant unable to support himself?
The threshold question for the Court is whether the applicant is “unable to support herself or himself adequately”, not only by reason of the matters set out in (a), (b) and (c) of s 72, but also having regard to any relevant matters referred to in s 75(2). There can be no liability to pay maintenance unless the need of the applicant is first established: Hall v Hall (2016) 93-709. The onus on establishing need is on the applicant.
The threshold question is the ability to support one’s self, not one’s needs. “Adequate” does not mean bare necessity or survival: Bevan & Bevan (1995) FLC 92-600. It is a level that is reasonable in all the circumstances.
The husband’s Financial Statement filed on 3 August 2022 deposes that his average weekly total income is “$1,725 + NK.” The “NK” appears to relate to his listing in paragraph 11 as “NK” his income from the various financial entities as “NK” or “not known”. The husband does not depose why he has been unable to particularise the monies he has received. The husband deposes that his taxable income for the financial year ending 2018 was $189,564 and for the financial year 2019 it was $250,615. His draft income tax return for the 2020 financial year indicates that his taxable income was $452,173. The wife’s taxable income for the 2018 and 2019 financial years was $182,296 and $254,129. The husband deposes that he has seen the wife’s draft income taxation return for the 2020 financial year and it indicates her taxable income was $437,615. The husband deposes in his affidavit that he has received the sum of approximately $121,000 in shareholder distributions since he was removed as a director of the companies.
The husband deposes that until 2012 he continued working as a finance professional in addition to tasks he undertook with respect to the businesses. There is no evidence from the husband as to his attempts to obtain any form of paid employment subsequent to separation, or even subsequent to May and June 2021 when the wife removed him as director and secretary of AE Pty Ltd Suburb AJ, Suburb AO and City AR.
The husband does have the care of the three children aged 10, 8 and 5 years of age. The husband deposes that both parties continued to work and operate together the three businesses, even when the children were younger.
I accept that at this stage the husband is unable to support himself by reason of having the care of the children. By way of the wife’s unilateral actions his income is at her discretion.
The Applicant’s Reasonable Needs
Although I am required to have regard to the standard of living to which the parties have, in the past been accustomed, I must also have regard to the fact that the family income, which has hitherto been required to support one household, is now required to support two households and therefore some economies must be applied: Bevan & Bevan (1995) FLC 92-600.
The applicant claims necessary expenses of $2,090 per week on the basis that he is not responsible for meeting the mortgage payments relating to the AC Street, Suburb G property. He relies upon his Financial Statement to ground the quantum of spousal maintenance sought by him. In circumstances where the husband claims the cost of $400 per week for cleaning (house/pool) and $40 per week gardening/lawn moving and he is currently living in a two bedroom apartment, I have proceeded on the basis that the costs claimed by the husband are costs he asserts relate to his occupation of the AC Street, Suburb G property.
The wife did not contest the husband’s asserted expenses. I do not accept however the husband’s submissions that the wife has conceded that the husband has a need for spousal maintenance in the sum of $1,725 per week. The wife has clearly apportioned the sum of $875.00 per week as being for the children’s needs.
There is no evidence as to the lifestyle the parties enjoyed during the course of the relationship.
The husband’s asserted costs for gas and electricity will not be allowed in circumstances where these will be paid by the wife pursuant to the above orders. Thus expenses of $300 per week will not be allowed.
I find that some of the weekly expenses claimed by the husband in his Financial Statement to be unreasonable in the circumstances, including:-
Item
Total Expense
Husband’s portion
Food
$1200
$600
Household Supplies
$300
$150
Internet
$80
$80
Telephone
$60
$60
Motor vehicle maintenance
$100
$100
Gardening/lawn mowing
$40
$40
Cleaning
$400
$400
Repairs
$50
$50
Dry Cleaning
$300
$100
Hairdressing, toiletries
$100
$70
There is no corroborative evidence to support the husband’s assertions as to his weekly expenses. There is no evidence as to how he apportioned the asserted costs as between himself and the children. There is no evidence as to why the husband has cleaning costs of $400 per week and gardening/lawn mowing expenses of $40 per week when he is not engaged in paid employment. Such expenses will be rejected.
I find the balance of the husband’s asserted expenses as set out above to be unreasonable.
I will reduce the costs asserted by the husband above and apportion them as between he and the children as follows which I find to be more reasonable:-
Item
Total Expense
Husband’s portion
Food
$600
$300
Household Supplies
$50
$25
Internet
$20
$20
Telephone
$30
$30
Motor vehicle maintenance
$50
$50
Repairs
$20
$20
Dry Cleaning
$30
$30
Hairdressing, toiletries
$35
$20
Together with the accepted costs asserted by the husband, I will allow the sum of $695 per week for the husband’s reasonable expenses.
There is no evidence as to the wife’s income. The wife asserts that she has not completed her personal taxation returns since 2019 and the business taxation returns have not been done since 2020.
I am satisfied that the wife has the capacity to pay the sum of $695 per week in light of the historical payments made by her to the husband to date. Having regard to all the above, it is reasonable, proper and appropriate in the circumstances that the wife pay to the husband the sum of $695 per week by way of spousal maintenance.
The AE Pty Ltd City AR Lease
The husband seeks an order that the parties do all acts and things so as to finalise and approve documents related to the lease of AE Pty Ltd City R including but not limited to signing the most recent version of the lease and providing a replacement bank guarantee to the landlord. The evidence to ground the order sought relied upon by the husband is two paragraphs. The husband deposes that there an issue with the lease of the City AR Centre as the wife refuses to sign it and obtain an updated bank guarantee. The landlord has threatened to terminate the lease on 20 September 2022 in the event this is not resolved.
Upon my raising my concerns as to the nature of the relief sought and the flimsy evidence to ground it, the husband conceded that it is difficult in circumstances where I do not have before me evidence as to the commercial reality of the lease provisions and no evidence as to what, if any, due diligence was undertaken. However, the husband submits that the order sought is a necessity.
The wife advised the Court that she was willing to reinstate the husband as a director of all three entities as long as he agreed to not change the BSB and account number information provided to the Authority AW for payments to be made. The wife advised she is not prepared to execute the most recent version of the lease, she will reinstate the husband and he can execute it if he wishes as she is not happy with the terms of the lease he agreed to. The husband through counsel advised that he is happy for orders to be made reinstating him as a director, but this did not resolve the issues as the bank guarantee needs to be signed by all Directors.
I am not satisfied there is evidence to ground the relief sought. There is no evidence as to the commercial reality of the proposed lease provisions. It is not the role of this Court to make commercial decisions for parties. I refuse the order as sought. The husband did not seek orders requiring the wife to reinstate him as a director. I will not make such an order.
Costs
The last issue for determination is the husband’s application for costs thrown away with respect to the two interim parenting applications filed by the wife on 17 January 2022 and 15 February 2022. These reasons assume knowledge of the reasons given on 6 September 2022 as to the summary dismissal of these applications and I incorporate those into this judgment.
The husband seeks costs either on a party/party basis in the sum of $9,817.50 including GST or any alternative at scale in the sum of $4,767.39 including GST as particularised in the schedule marked as Exhibit F on 6 September 2022.
In support of the application for costs the husband submits that he was wholly successful in having the interim application’s summarily dismissed in circumstances where the wife was afforded numerous opportunities to withdraw her applications. Whilst representing herself at the interim hearing the wife would have been provided with legal advice previously by the numerous legal advisors she has had in the proceedings to date, including counsel who appeared for her at the appeal filed by her against prior interim parenting Orders. The husband further submitted that the wife should have withdrawn her applications prior to the interim hearing in circumstances where the Independent Children’s Lawyer himself had forwarded an email providing her with the opportunity to withdraw her applications. In those circumstances the wife prosecuted her interim applications knowing, or in circumstances where she ought to have known, that there were difficulties with her applications.
The wife opposed the payment of costs by the husband but did not make any further submissions.
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to proceedings shall bear their own costs subject to subsection (2), which states that if the court is of the opinion that there are circumstances that justify it in doing so, the court may make such order as to costs as the court considers just. Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, Penfold & Penfold (1980) FLC 90-800 states that there is no additional or special onus on the applicant who seeks the costs order.
Subsections 117(2A)(a) to (g) of the Act set out the matters that must be taken into account in determining whether to exercise the court’s discretion and make a costs order. No one factor must be present, and no particular factor has more or less weight than any other. There may however be a dominant or outstanding feature that makes an order for costs appropriate.
There is no evidence before the Court as to the wife’s financial circumstances as she has failed to comply with the Rules for the filing of such a document and various directions made for her to attend to same.
Neither of the parties are in receipt of a grant of legal aid.
The Rules of the court should be taken into account when the court is exercising its discretion as to costs: see Northern Territory v Sangare (2019) 265 CLR 164 at [25]. Parties have a mandatory obligation pursuant to r 1.04 of the Rules to conduct proceedings in a manner consistent with the overarching purpose of the court, being the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The wife’s two interim applications were summarily dismissed. They were both filed within a month of each other, effectively seeking to re-litigate issues that had already been determined at first instance and the subject of an unsuccessful appeal. The wife was afforded the opportunity on several occasions to withdraw her applications both by this Court when she had the benefit of legal representation and by the Independent Children’s Lawyer - she did not.
I am satisfied that there are circumstances that justify the Court departing from the usual provisions that each party pay their own costs.
I am satisfied that the wife should pay the husband’s costs in accordance with Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) as set out hereunder.
Item
Description
Amount (including GST)
2
Initiating or opposing an application that includes interim orders (other than procedural orders) up to the completion of the first court date
(a) $1,964
13
Daily Hearing Fee
(a) $2,357
Total
$4,321.00 (including GST)
Transfer of the Proceedings
In light of the issues in dispute in this matter, the transfer of the matter to Division 1 of the Federal Circuit and Family Court of Australia (“Division 1”) has been sought on prior occasions. Only property issues were listed for hearing on 13 September 2022 and thus the Independent Children’s Lawyer was not present. I raised with the parties my view that it is more appropriate for the matter to be dealt with in Division 1 and made directions that in the event any party wished to be heard against transferring the matter to Division 1 they were to file and serve short submissions by no later than 4:00 pm on 20 September 2022. No written submissions have been filed.
I will therefore make orders transferring the proceedings to Division 1 as:-
·The matter involves both property and parenting issues;
·The property issues involve the valuation of various financial entities including trusts;
·The parenting issues involve competing live with applications and the determination of what time the children will spend with the other party and whether such time would be on a supervised basis; and
·It is anticipated having regard to the conduct of the litigation to date that the matter will take in excess of 5 days to be heard.
Orders will be made accordingly.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 26 September 2022
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