MASOUD & MASOUD
[2015] FamCA 903
•26 October 2015
FAMILY COURT OF AUSTRALIA
| MASOUD & MASOUD | [2015] FamCA 903 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application for discharge of a conditional stay order that was made pending determination of the appeal – Where the appeal was heard by the Full Court on an expedited basis and judgment is reserved – Where the husband is in alleged breach of that conditional stay order – Where the wife does not particularise the basis upon which she asserts the stayed order is revived – Where the husband has not had adequate notice of that aspect of the wife’s application – Where the Court finds that it is inappropriate to disturb the previous award of spousal maintenance - Application dismissed. FAMILY LAW – PROPERTY – Where the wife seeks that the husband be compelled to remove caveats lodged against nine properties of the wife – Where the husband seeks that the wife be compelled to agree to those caveats remaining, pending determination of the appeal and any possible re-hearing – Where the wife needs to raise funds to pay for the children’s private school fees – Orders made facilitating the removal of a caveat against a nominated property for the purpose of the wife raising funds for the children’s school fees. |
FAMILY LAW – CHILD SUPPORT – Arrears – Where the wife seeks to recover the husband’s child support debt – Where the wife has not complied with the procedure set out in s 113A of the Child Support (Registration and Collection) Act 1988 (Cth) – Application dismissed.
| Child Support (Registration and Collection) Act 1988 (Cth) s 113A Family Law Act 1975 (Cth) s 114(3) |
Family Law Rules 2004 (Cth)
Bass & Bass and Ors [2015] FamCA 186
Cowling & Cowling (1998) FLC 92-801
Masoud & Masoud [2013] FamCA 763
Masoud & Masoud (Stay application) [2014] FamCA 918
Menotti & Lamb [2014] FamCA 518
Mullen and De Bry (2006) FLC 93-293
Sampson & Hartnett [2007] FamCA 732
Sieling and Sieling (1979) FLC 90-627
| APPLICANT: | Ms Masoud |
| RESPONDENT: | Mr Masoud |
| FILE NUMBER: | SYC | 2198 | of | 2012 |
| DATE DELIVERED: | 26 October 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 16 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gould |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
The husband shall, within seven (7) days of the date of these orders, do all such acts and sign all such documents as are necessary for the wife to borrow the sum of $27 000 including, if necessary, withdrawing any caveat lodged against a property, as nominated by the wife (“the nominated property”), to enable that property, to be offered as security for the sum of $27 000.
Within twenty-eight (28) days of any caveat being withdrawn, pursuant to Order (1) above, or such other time as may be agreed between the parties, the wife is to do all acts and things and sign all documents as are necessary to provide her consent to the husband re-lodging a caveat against the nominated property.
The wife, unless otherwise agreed between the husband and the wife, is restrained (unless she has beforehand given to the husband at least twenty-eight (28) days’ written notice of her intention to do so, or otherwise procured his consent in writing to such dealing) from transferring, assigning, granting any charge or mortgage over, further encumbering or otherwise dealing with all of her right, title and interest in the following properties:
(a) Property W, Queensland, Title Reference…;
(b) Property W 1, Queensland, Title Reference…;
(c) Property W 2, Queensland, Title Reference…;
(d) Property W 3, Queensland, Title Reference…;
(e) Property W 4, Queensland, Title Reference..;
(f) Property W 5, Queensland, Title Reference…;
(g) Property H, Queensland, Title Reference….
The wife is to do all acts and things and sign all documents as are necessary to provide her consent to the husband lodging caveats over the properties listed in Orders 3(a) to (g) above to protect his right to notice pursuant to that Order.
The husband shall not unreasonably withhold his consent to a request made by the wife to deal with a property or properties, pursuant to Order (3) above.
For the purpose of Order (3) above, it shall be unreasonable for the husband to withhold his consent without, within 14 days of receiving a request by the wife to deal with a property or properties, initiating proceedings in a court of competent jurisdiction with a view to establishing his legal or equitable interest in the property or properties.
Within twenty-eight (28) days of the date of these Orders, the parties are to provide each other with updated financial disclosure pursuant to Chapter 13 of the Family Law Rules 2004 (Cth), including financial disclosure in respect to the financial year ending 30 June 2015.
The balance of the wife’s Application in a Case filed 8 December 2014 and the balance of the husband’s Application in a Cased filed 9 December 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masoud & Masoud has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2198 of 2012
| Ms Masoud |
Applicant
And
| Mr Masoud |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Masoud ("the wife") and Mr Masoud ("the husband") have been involved in extensive litigation concerning parenting and property matters. The background to the litigation is summarised in the judgment of Fowler J delivered 4 October 2013.[1] The orders of Fowler J are currently subject to an appeal by the husband. The appeal was heard by the Full Court on an expedited basis on 17 June 2015 and judgment is currently reserved. The matters currently before the Court relate to financial arrangements between the parties, pending the determination of the appeal.
[1] Masoud & Masoud [2013] FamCA 763.
The manner in which the litigation has been approached by the parties has been the subject of quite strident criticism by both Fowler J in his judgment delivered 4 October 2013 and by Benjamin J who heard subsequent applications by the parties. The applications before Benjamin J concerned the husband’s application for a stay in respect to certain orders made by Fowler J together with an enforcement application filed by the wife. In his judgment delivered 28 October 2014,[2] Benjamin J drew an analogy between the legal manoeuvres of the parties and being in Alice in Wonderland. His Honour recommended, at [18]:
Whether they have previously done so or not, the legal practitioners representing the husband and the wife need to step forward and offer non-confrontational solutions to their respective clients.
[2] Masoud & Masoud (Stay application) [2014] FamCA 918.
Despite the recommendation that the parties attempt to develop non-confrontational solutions to issues in dispute, the unfortunate reality is that the parties have found it necessary to incur further legal expenses that probably well exceed the payment required to bring their children’s school fees up to date. That issue continues to be a major source of conflict between the parties.
It was also regrettable that the husband was not in attendance when these proceedings were heard. In that respect the Court recognises the responsibilities of his practice but, given the significant public resources engaged, it is important that litigants organise their professional and private commitments to ensure that they are available to address matters that arise during the course of the hearing of their application. Physically attending Court facilitates the parties being in a position where they can better focus on the advice they receive from their legal representatives and provide properly informed instructions in respect to that advice. This includes the possibility of sensible resolution of matters before the Court.
Relevant procedural history
The following aspects of this matter’s history are relevant to the Court’s consideration of the applications before it:
·On 16 November 2012 Fowler J made interim orders in respect to several matters including the preservation of the property of the marriage pending finalisation of the litigation before him.
·On 4 October 2013 Fowler J made final parenting and property orders and gave his reasons for judgment in the substantive proceedings. Order 53 of the orders made by Fowler J on 4 October 2013 relevantly provided:
The husband shall pay to the wife by way of spouse maintenance the sum of $4333 per month paid monthly in advance, with the first payment to be made within 7 days from the date of these orders. Each payment thereafter is to be made on the same calendar day of each month for a period of 24 months following the 1st payment.
·On 1 November 2013 the husband filed a Notice of Appeal in respect to the property, spouse maintenance and child support departure orders made by Fowler J.
·On 4 July 2014 the wife applied for an enforcement warrant to be issued by the Court in respect to monies the wife alleged were payable to her, pursuant to an undertaking provided by the husband to the Court, as noted in Order 58 of the 4 October 2013 orders of Fowler J.
·On 10 July 2014 Registrar Cameron made orders in chambers declining to issue the enforcement warrant.
·By way of Application in a Case filed 17 July 2014 the wife sought a review of the Registrar's decision together with additional orders in respect to the arrears of child support and spousal maintenance. Orders were also sought in respect to additional financial disclosure from the husband and costs.
·By way of a Response to an Application in a Case filed 22 August 2014, the husband sought orders for the dismissal of the wife's application, a release from the undertaking which he claimed was not enforceable, a stay of a number of the 4 October 2013 orders as well as injunctions against the wife in respect to communication.
·On 28 October 2014, Benjamin J made orders in respect to the financial arrangements of the parties, pending the conclusion of the appeal, including order 4 which read:
Conditional upon:
a) the husband paying the wife the sum of $2666 per month by way of partial compliance with the spousal maintenance order (order 53 [made by Fowler J on 4 October 2013]); and
b) such partial payment to operate in respect of the husband’s spousal maintenance liability pursuant to that order for the payments due on and after 4 August 2014, until the appeal has been determined; and
c) partial payments due on 4 August 2014 and 4 September 2014 are to be paid to the wife on or before 4 October 2014; and
d) the partial payments due on the 4th of each month thereafter be paid to the wife on that day, including the October 2014 partial payment due on 4 October 2014,
the remainder of the operation of order 53 (as has not already been wholly or partially complied with) made by the honourable Justice Fowler on 4 October 2013 be stayed pending the determination of the husband's appeal.
·It is also of relevance that order 7, made by Benjamin J on 28 October 2014, granted a stay order conditional upon the husband paying the sum of $10 000 to School A within 14 days.
·Benjamin J stood over the wife’s application for review of the Registrars orders made on 10 July 2014 declining to issue an enforcement warrant for further directions before a Registrar.
·On 8 December 2014 the wife filed a further Application in a Case seeking orders which, as modified by her case outline document, are the subject of these proceedings.
·On 9 December 2014 the husband filed an Application in a Case seeking injunctions restraining the wife, pending determination of the appeal, from dealing with her properties located in Queensland. This application is now also the subject of these proceedings.
Orders sought
In her Minute of Orders Sought, provided to the Court prior to the hearing on 16 September 2015, the wife sought orders to the following effect:
a)That Order 4 of the orders made by Benjamin J on 28 October 2014, which stayed the husband’s obligation to pay spousal maintenance at the rate of $4 333 per month on condition that he pay the rate of $2 666 per month, be discharged. (hereafter to be referred to as “the conditional stay order”).
b)The orders made by Registrar Cameron on 10 July 2014, declining to issue an enforcement warrant, be reviewed.
c)That, in reviewing the decision of Registrar Cameron, the Court issue an enforcement warrant in respect to the undertaking of the husband referred to in Order 58 of the 4 October 2013 orders of Fowler J. (hereafter to be referred to as “the alleged undertaking”).
d)That the husband remove the caveats lodged with the Queensland Land Titles Office in respect to properties located in Queensland and meet the cost of removing those caveats.
e)That the husband be restrained from lodging any caveats against any properties owned by the wife.
f)That the husband provide updated financial disclosure to the wife.
The orders sought by the husband were to the following effect:
a)That the wife be restrained from selling, encumbering and/or otherwise dealing with the Queensland properties.
b)That the wife be required to provide her consent to the husband lodging caveats against the Queensland properties.
c)That pending determination of the appeal, and/or any rehearing consequent upon such a determination, the wife be restrained from utilising the declaration made by Fowler J in respect to the wife's ownership of the Queensland properties.
The Queensland properties
There are eleven Queensland properties which are located at:
a)Property D 1;
b)Property D 2;
c)Property D 3;
d)Property W;
e)Property W 1;
f)Property W 2;
g)Property W 3;
h)Property W 4;
i)Property W 5;
j)Property O; and
k)Property H.
In this judgment, they will be referred to collectively as “the Queensland properties”.
Four of the Queensland properties are owned by the wife jointly with her sister. Those properties are:
a)Property D 1;
b)Property D 2;
c)Property D 3; and
d)Property O.
In this judgment, they will be referred to as “the jointly owned properties”.
The wife’s sister is not a party to these proceedings and there is no evidence that she has been served with the relevant documentation.
Of the eleven Queensland properties, nine currently have caveats lodged against them. Those caveats were lodged pursuant to interim orders made by Fowler J on 16 November 2012.
In the period since Fowler J delivered judgment on 28 October 2013, the wife has been successful in removing caveats that were lodged against the following properties;
a)Property H; and
b)Property D 1.
In this judgment, those properties will be referred to as “the non-caveated properties”.
The wife's abandonment of her application to enforce undertaking
At the hearing of this matter on 16 September 2015, the wife abandoned her application to review the decision of Registrar Cameron declining to issue an enforcement warrant in respect to the alleged undertaking. That aspect of her application was abandoned as result of it having been conceded by senior counsel for the wife at the hearing of the appeal before the Full Court on 17 June 2015, that the husband’s ground of appeal in relation to the alleged undertaking must succeed.
Counsel who appeared for the wife on 16 September 2015 was not aware that such a concession had been made. In that respect, the parties’ attention was drawn to page 5 of the transcript which recorded the following exchange between senior counsel for the wife and Chief Justice Bryant:
MR KIRK: I can't point to an undertaking in the transcript and that being so I'm left without the basis for the undertaking having been recorded.
BRYANT CJ: and you would – is that a concession that that ground would have to succeed?
MR KIRK: Yes. I can't say anything else.
Issues
The issues, in the context of these proceedings, are therefore:
a)Should the Court discharge Order 4 of the orders made by Benjamin J on 28 October 2014?
b)Should the Court compel the husband to remove the caveats remaining in place against the Queensland properties?
c)Should the Court compel the wife to agree to caveats being lodged against the Queensland properties?
d)Should the wife be restrained from dealing with the Queensland properties, pending determination of the appeal and any possible re-hearing arising from the appeal?
e)Should the wife be able to recover the debt owed by the husband, pursuant to s 113A Child Support (Registration and Collection) Act 1988 (Cth)?
f)Should the husband be required to provide updated financial disclosure to the wife?
Submissions
Submissions of the wife
In these proceedings, the wife alleged that the husband has not complied with the conditions imposed by Order 4 of the orders of Benjamin J made on 28 October 2014 and consequently, the orders made by Fowler J on 4 October 2013 are therefore revived and enforceable. It was argued that the husband now has an obligation to pay to the wife, by way of spousal maintenance, the sum of $4 333 per month, paid monthly in advance.
It was argued that, as no spousal maintenance payments have been made by the husband since April 2015, “it must be common ground” that the conditions for the payment of the spousal maintenance order made by Benjamin J have been breached and it was submitted that breach can be “no later than April 2015”. Therefore, it is argued, the husband is still liable for maintenance in the amount assessed by Fowler J.
Further, the wife argued that, in circumstances where the husband is not complying with his obligations to pay maintenance, either in accordance with the 28 October 2014 orders of Benjamin J or those of Fowler J made on 4 October 2013, it is appropriate that the wife be permitted to sell the Queensland properties in order to raise funds to meet her financial commitments. Those commitments include paying the children's private school fees which are due and payable in October 2015 and which total $27 000.
In summary, counsel for the wife argued that the wife is in a “double-bind” because the husband is not paying spousal maintenance and yet he is restraining the sale of the Queensland properties – thus, depriving her of the ability to raise sufficient funds to meet those school fees.
The wife argued that, upon delivery of the orders and judgment of Fowler J on 4 October 2013, the husband should have withdrawn the caveats lodged against the Queensland properties. The wife indicated that she has had difficulty in removing those caveats because it is the practice of the Queensland Land Titles Office to refrain from removing caveats where there is a dispute relating to them.
In terms of potential prejudice, the wife referred to paragraph 253 of the judgment of Fowler J, who found that the net asset pool of the parties was $4 623 925. It was argued that, should the matter be remitted by the Full Court for re-hearing, it is inconceivable that the wife will receive, by way of property distribution, less than 50 per cent of that amount. Accordingly it was argued the wife should not be prevented from dealing with the Queensland properties to raise funds to meet her expenses and those of the children.
Counsel for the wife noted that there is no stay in respect to the real property owned by the wife, yet the husband continues to retain what was described as a “statutory injunction,” in the form of the caveats, against the wife dealing with the Queensland properties.
It was argued that the wife has judgment in her favour and she is being “entirely stymied” from obtaining the benefit of that judgment, in circumstances where there is no stay in respect to orders recognising her ownership of those properties.
The wife argued that the Court could have no confidence in the husband’s proposal that the husband would act reasonably in the event of her providing twenty-eight days’ notice of her intention to sell or use one or other of the Queensland properties as security to raise funds.
In referring to that lack of confidence, counsel for the wife noted the husband’s most recent Financial Statement stated that the total value of property owned by the husband was is $96 679. This, counsel said, was "misleading at best”.
The quantification of the value of property, it was noted, excludes the valuation of business interests referred to paragraph 41 of the husband’s Financial Statement which are:
·Masoud Pty Ltd;
·Masoud Holdings Pty Ltd; and
·Masoud Settlement
Counsel for the wife noted that, at paragraph 261 of his judgment, Fowler J found that Masoud Holdings Pty Ltd, Masoud Pty Limited and EJ Settlement Trust had assets of $555 000. Reference was also made to a loan to the husband’s medical practice of $548 992.
Counsel for the wife referred to what the wife alleged was a conservative statement of the average weekly income of the husband and inflated personal expenditure. In respect to the husband’s understatement of his income, counsel for the wife referred to bank accounts[3] related to the husband’s medical practice which showed credits for August 2015 of $122 544. This, it was argued, suggested a much higher income than that disclosed in the husband’s financial statement, which specifies his income as $3 358 per week.
[3] Exhibit 69.
Finally, counsel for the wife complained that the wife has not received adequate financial disclosure from the husband and had not received disclosure in a timely way. In that respect, reference was made to correspondence between the solicitors for the parties in respect to the period from 8 September 2015 and 15 September 2015, which was tendered into evidence.[4]
[4] Exhibit 68.
In respect to child support, reference was made to a Child Support Agency certificate indicating that there is $64 686.05 owed by the husband as at 11 September 2015.[5]
[5] Annexure ‘A’ to the affidavit of the wife filed 15 September 2015.
Submissions of the husband
The husband objected to the Court dealing with the wife’s application to discharge the conditional stay order on the basis that the relief had not been included in the wife’s application. The husband was provided with notice of that aspect of her application on the day prior to the hearing when it was included in a proposed Minute of Order attached to the wife’s case outline document. Senior counsel for the husband indicated that he had not had the opportunity to obtain instructions in respect to that aspect of the application and was not in a position to deal with the matter.
In any event, the husband argued that the issue of the appropriate rate of maintenance payable by the husband had been heard and determined by Benjamin J and the Court was now functus.
Even if that was not the case, senior counsel for the husband argued that the issue of spousal maintenance was a live issue in the appeal before the Full Court and the appropriate course would have been to raise that issue when the appeal was heard on 17 June 2015.
Further, it was argued that, in determining what was just and equitable for the purposes of granting the stay, Benjamin J considered the issues relating to the appeal and the parties’ respective financial circumstances. It was submitted that the Court should not now interfere with Benjamin J’s determination as to the appropriate rate of spousal maintenance.
It was noted that the appeal has been expedited and accordingly, it was argued that there is a reasonable expectation that the determination will also be expedited. This is a factor, it was argued, against the Court exercising discretion to interfere with the orders made by Benjamin J. Reference was made to Sampson & Hartnett[6] in that respect.
[6] [2007] FamCA 732.
In short, it was argued that the question of spousal maintenance has been dealt with by Benjamin J and should not now be revisited.
In terms of the exercise of discretion, it was argued that the Court is not in a position to resolve the factual controversy between the parties including whether the wife has accurately disclosed her weekly expenditure. In that respect, it was noted that the husband took issue with several aspects of the wife’s Financial Statement.
It was noted, for instance, that paragraph 24 of the wife’s Financial Statement indicates that outgoings on the Queensland properties is stated as $2 304 per week. It was argued that a cross comparison to the amount claimed by the wife in her 2014 tax return[7] showed that the amount should more appropriately be quantified at $1 500 per week.
[7] Exhibit 71.
It was further noted that paragraph 36 of the wife’s Financial Statement shows the property located at Property H, as being valued at $250 000 whereas at paragraphs [143] and [261] of the judgment of Fowler J the value of the property was noted as $370 000. It was alleged that there is a similar difficulty going across the schedule of values ascribed to the respective Queensland properties.
Further, the husband argued that ongoing rental payments of $850 per week being made by the wife to her father represents an artificial payment in circumstances where the wife is living at her parent’s home.[8]
[8] Affidavit of the husband filed 9 September 2015 at [20].
In summary, it was argued that the wife has a far greater capacity to live comfortably than her most recent Financial Statement and the submissions made on behalf of the wife indicate.
In respect to the orders sought by the husband in respect to the Queensland properties, it was noted that the caveats are in place as result of Orders 8 and 9 of the interim orders made by Fowler J on 16 November 2012.
Reference was made to the decision of Aldridge J in Bass & Bass and Ors[9] as authority for the power of a trial judge to issue an injunction in order to preserve the assets of the marriage pending the outcome of an appeal. Helpfully, this matter was not put in issue by counsel for the wife who, whilst acknowledging the existence of such a power, objected to the exercise of the power in the circumstances of this case on discretionary grounds.
[9] [2015] FamCA 186.
Senior counsel for the husband argued that the Court should not accept a submission from the bar table that the wife should be free to deal with the Queensland properties on the premise that she will inevitably receive on final property settlement in excess of the value of the properties.
Reference was made to the wife paying a disputed amount to her parents in the sum of $700 000, together with an amount of $45 000 in respect to alleged arrears in rent due to her father.[10]
[10] Affidavit of the husband filed 9 December 2014 at [21].
It was argued that the wife’s inflated rental of $850 per week being paid to her father, together with efforts being made by the wife to remove the caveats lodged against the Queensland properties and to increase debt secured against the property at Property D 1, were further evidence that the wife is deliberately reducing the net asset pool and failing to act responsibly to preserve the property of the marriage pending final determination of the appeal.[11]
[11] Ibid at [18] - [23].
In terms of balance of convenience, it was noted that the husband is seeking orders that the wife provide him with twenty-eight days’ notice of any intended dealing with the Queensland properties. Senior counsel indicated that the husband’s objection to such dealing would need to be of substance and “it quite clearly places the onus upon the husband in the event that he seeks to stop dealings with the properties.”
Senior counsel acknowledged that it would be incumbent on his client to seek “positive relief” over and above simply indicating to the Queensland Land Titles Office that he objected to the caveats being lifted.
In so far as the immediate issue before the Court is the wife’s ability to raise sufficient funds to meet the children’s school fees, senior counsel for the husband indicated that the husband would agree to a caveat being lifted for the purpose of the wife raising the amount of $27 000 to pay the balance of school fees due in October of this year.
In so far as the wife sought to enforce the husband’s outstanding child support debt, senior counsel for the husband argued that the wife has not followed the appropriate procedure, as set out in rule 20.03 of the Rules and section 113A of the Child Support (Registration and Collection) Act 1988 (Cth).
Consideration
The wife has not particularised the basis upon which she asserts that Order 53 of the 4 October 2013 orders of Fowler J has been revived, other than to assert that such a revival has occurred as a result of the husband’s failure to comply with Order 4 of the October 2014 orders made by Benjamin J in respect to the period since April 2015.
It is noted that there is a dispute between the parties as to the amount of spousal maintenance that remains outstanding.[12] The husband claims that he has “used his best endeavours to make the payments he is required to make in compliance with the orders.”[13] While the wife is entitled to challenge the veracity of that statement, there is a live issue as to whether this amounts to a default on behalf of the husband such that it justifies a finding that Order 53 of the orders of Fowler J have been revived.
[12] See for instance the affidavit of the wife filed 4 June 2015 at [27] - [30] and the affidavit of the husband filed 9 September 2015 at [11] - [14].
[13] Affidavit of the husband filed 9 September 2015 at [14].
In the context of that dispute, the wife has not particularised, for example, the precise sum which she alleges is outstanding in respect to the spousal maintenance payments, when she says she provided the husband with notice of the alleged default, whether the husband was provided with an opportunity to rectify the alleged default and, failing rectification, identify for the Court a precise date on which she says the husband’s default occurred. The husband’s objection to the Court dealing with the wife’s application without adequate notice including having the opportunity of requesting particulars of that nature, are valid. The Court therefore declines to deal with an argument that Order 53 of the October 2013 orders made by Fowler J has been revived as a matter of law.
In terms of discretionary considerations, it is noted that, in his judgment dated 28 October 2014,[14] Benjamin J set out the principles for granting a stay pending the hearing of an appeal as follows:
[14] Masoud & Masoud (Stay application) [2014] FamCA 918 at [50].
The law applicable to a stay application is set out by the Full Court in Jackson & Balen [2009] Fam CA FC131 where the Full Court said at paragraph 28:-
The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681). Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· a person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to grant a stay;
· the application must be bona fides;
· a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.
(Emphasis added)
Having regard to the financial circumstances of the parties, Benjamin J determined that it was “fair to all parties” to set a rate of spousal maintenance, pending the determination of the appeal, of $2 666 per month with, as stated in Order 4(b), “such partial payment to operate in respect of the husband’s spousal maintenance liability pursuant to that Order for the payments due on and after 4 August 2014, until the appeal has been determined.” (Emphasis added)
The Court is not in a position to determine that it would be “fair to all parties” to simply revive the order of Fowler J made on 4 October 2013. In particular, in determining the issue of spousal maintenance, Benjamin J undertook an updated assessment of the needs of the wife and the husband’s capacity to pay in the context of also undertaking a preliminary assessment of the issues to be determined in the appeal. At paragraphs [57] –[58], his Honour said:
In terms of the spouse maintenance order, the order was based upon a finding that the wife was not in receipt of an income. The wife is now in receipt of an income of some $385 per week.
Given that change in the wife’s income and given the husband’s assertion that his financial circumstances have deteriorated since the first instance hearing and the making of the Orders by Fowler J, I am satisfied that it would appropriate to stay part of that order to the extent that the wife earns her income of $385 per week. Accordingly, I will stay part of Fowler J’s maintenance order and I will leave the husband responsible for paying the balance of maintenance.
Neither party has provided the other with updated particulars of their income and expenditure for the financial year ended 30 June 2015. As noted, by reference to the parties’ submissions, there is significant factual controversy between the parties in respect to their means and needs.
In Cowling & Cowling (1998) FLC 92-801, at 85,007, the Full Court said: “Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.” Nevertheless, the fact that a party faces evidentiary difficulties in interim proceedings does “not relieve the party of the obligation of establishing the necessary prerequisites for the grant of the relief sought”.[15]
[15] Acton & Burton [2015] FamCA 469 at [29].
It is of note that, in his reasons for judgment, Fowler J commented on the credibility of the parties in the following terms:[16]
Overall, it is the Court’s view that the evidence of both of the parties to this litigation was unreliable; there can be no general preference shown. The Court finds that each of the parties has been at least careless with the truth and at worst deliberately misleading. The nature of the past war between these two persons may give context to their falsehoods, but it neither excuses them nor provides a basis on which they can be ignored.
[16] Masoud & Masoud [2013] FamCA 763at [35].
In these proceedings, it would not be appropriate to simply apply Fowler J’s assessment of the parties’ credibility. Making that assessment would, however, be necessary in attempting to resolve the factual controversy between the parties at final hearing. In interim proceedings the reality is that it is simply not possible for the Court to resolve issues of credit and factual controversy, particularly in circumstances, such as the present case, where there are mutual allegations of inadequate, inflated and false disclosure of income, expenditure and assets. In these circumstances, the wife has not established that it is appropriate for the Court to discharge Order 4 made by Benjamin J on 28 October 2014.
The Queensland properties
Raising funds to pay school fees
The husband acknowledged that it is appropriate for the wife to be able to deal with one or other of the Queensland properties for the purpose of raising the amount of $27 000 in order to pay the children’s school fees that are due and payable in October of this year. Accordingly, an order will be made to facilitate that occurring.
The jointly owned properties
The Court is not prepared to grant injunctions in respect to the properties jointly owned by the wife and her sister. The wife’s sister has not been made a party to these proceedings and evidence has not been presented to the Court that she has been served with the husband’s application, relevant affidavits or contentions. A person has a right to be heard when an order is to be made affecting that person’s rights.[17] The possible inference that the wife’s sister may have been aware of the proceedings on the basis that she is a close relative of the wife is not sufficient for the Court to dispense with this natural justice requirement.
[17] Child Support Registrar & Nixon (2007) 36 Fam LR 571 at [47] - [48]. See also Official Trustee in Bankruptcy v Donovan and Donovan and Stevens (1996) FLC 92-703.
Clean hands
The husband seeks injunctions in respect of the Queensland properties pursuant to section 114 of the Family LawAct1975 (Cth) (“the Act”). Appropriately, the wife concedes that the Court has power in that respect.[18]As noted by Cronin J in Menotti & Lamb,[19] section 114 “requires the Court to exercise its discretion if it is satisfied that it is proper and just to do so. In language no longer used in this jurisdiction, if the applicant comes to equity seeking justice, he or she must come with clean hands”. (Emphasis added)
[18] Bass & Bass and Ors [2015] FamCA 186. At [46]
[19] [2014] FamCA 518 at [9].
It is unnecessary, in these proceedings, to determine whether the concept of “clean hands” which applies in equity, is directly applicable to proceedings under the Act. Nevertheless, in contemplating the exercise of power pursuant to section 114(3) of the Act, it is necessary for the Court to consider whether it would be “just and convenient” to make orders of an injunctive nature. In that respect, a party’s non-compliance with orders of the Court or other statutory obligations is a highly relevant consideration. The Court notes that, as at the date of the hearing the husband was significantly in arrears in respect to his obligation to pay spousal maintenance and that there was clear evidence that the husband has not fulfilled his obligation to pay child support.[20]
[20] Annexure ‘A’ to the affidavit of the wife filed 15 September 2015.
On the other hand, the Court also notes the husband’s concerns in respect to payments made by the wife to her father in the sum of $700 000, which he says, can be seen as the wife acting to deplete the property of the marriage, in circumstances where findings made in relation to the categorisation of that amount is subject to an appeal.
The assessment of risk of depletion of property
The applicant for an injunction bears the onus of satisfying the Court that the circumstances justify the making of such an order.[21] In so far as he seeks injunctive relief, it is necessary for the husband to establish that there is evidence of a real risk of disposal of property by the wife and that her conduct is such that it may defeat any anticipated order.
[21] Sieling and Sieling (1979) FLC 90-627.
That is not to say, however, that it is necessary for the husband to establish, as a matter of probability, an intention exists on the part of the wife to so deplete the marital property in order to defeat a possible order of the Court. In Mullen and De Bry (2006) FLC 93-293,[22] the Full Court explained the point of distinction as follows:
We perceive that a real, though perhaps subtle, difference exists between, on the one hand, establishing on the balance of probabilities a risk or danger of a disposal of property intended to defeat an order and, on the other hand, proving to the civil standard and as an independent issue that a scheme to defeat an order exists.
In some cases, the possibility (based on some evidence) of an intention or scheme may, with other factors, be sufficient to establish the probability of an objective risk of disposal with intent to defeat an order.
It follows that we do not say that, in addressing the question of whether there is a risk of disposal of assets to defeat an order, it is unnecessary to enquire whether there is any evidence of an intention, plan or scheme to dispose of assets. But in an enquiry into the risk of disposal, the question of intention or scheme is but one of a number of factors relevant to the objective risk of disposition to defeat an order. (Emphasis added)
[22] at 80,99.
In these interim proceedings, the evidence is not such that the Court can find, on the balance of probabilities, that the wife is deliberately acting to dissipate the property of the marriage. Nevertheless, the husband has established that there is a real risk that the wife is engaging in conduct which is having that effect. The Court notes, in that respect, the wife’s conduct in repaying the sum of $700 000 and the sum of $45 000 to her father, and the allegation that she is paying artificially inflated rent to her father.
The Court therefore finds that there is a real risk of dissipation of assets by the wife such that it may impact upon the property available for distribution should property orders be made by the Court, in the event that the appeal is successful and the matter is remitted for re-hearing.
Restraint to be to the minimum extent necessary
In considering the nature of the injunctive relief, it is important to be aware of the general principle that “equity intervenes to the minimum extent necessary to do justice”.[23]
[23] See Giumelli v Giumelli (1999) 196 CLR 101 at [10] referred to in Norton & Locke (2013) 284 FLR 51 at [72].
In that respect, in Sieling and Sieling (1979) FLC 90-627 at 78 265, the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order and frame its order in such a way to impose no further restriction than is necessary to achieve the protection of the applicant’s interest.[24]
[24] See also Menotti & Lamb [2014] FamCA 518 at [41] and Auricchio & Auricchio and Ors [2014] FamCA 185
It is clear that Fowler J applied these principles in the interim orders he made on 16 November 2012.[25] Those orders were appropriate and are substantially replicated in this matter. As previously noted, the Court will not make orders in respect to the properties owned jointly by the wife and her sister, but the caveats already in place as a result of the orders of Fowler J will not be disturbed. It is noted that those jointly owned properties where caveats remain are:
a)Property D 2;
b)Property D 3; and
c)Property O.
[25] Masoud & Masoud (No. 2) [2012] FamCA 946 at [90] – [94].
To avoid doubt, however, nothing in the orders made should be construed as determining whether there is a sound legal or equitable basis for those caveats, on the jointly owned Queensland properties, remaining in place. In so far as there is a dispute concerning those caveats it should be resolved in proceedings in which the wife’s sister is also a party.
Recovery of child support payments
As noted above, there was clear evidence before the Court that, as at the date of interim hearing, the husband was in arrears of his child support obligations. The wife has every right to seek the enforcement of that obligation which, it goes without saying, is for the benefit of the parties’ children.
Section 113A of the Child Support (Registration and Collection) Act 1988 (Cth) sets out the procedure for the recovery of a child support debt by a payee. The section provides:
113A Recovery of debts by payees
Payee to notify Registrar of intention to institute a proceeding to recover debt
(1) A payee of a registered maintenance liability may sue for and recover a debt due in relation to the liability if the payee notifies the Registrar in writing of his or her intention to institute a proceeding to recover the debt:
(a) at least 14 days before instituting the proceeding; or
(b) in exceptional circumstances—within such shorter period as the court allows.
Note: For provisions relating to proceedings instituted under this section, see sections 111F and 111G.
Payee to notify Registrar of orders made
(2) A payee of a registered maintenance liability who has instituted a proceeding in a court to recover a debt in accordance with subsection (1) must give notice to the Registrar, in the manner specified by the Registrar, of any orders (including orders as to costs) made by the court in relation to the payee and the debt due in relation to the liability, within 14 days of the order being made.
Note: Section 16A provides for the Registrar to specify the manner in which a notice may be given.
(3) A payee commits an offence if:
(a) the court makes an order in relation to the payee and the debt due in relation to the liability; and
(b) the payee fails to notify the Registrar under subsection (2) of the order being made.
Penalty: 10 penalty units.
(4) Subsection (3) is an offence of strict liability.
(5) It is a defence to a prosecution for an offence against subsection (3) if the person charged proves that the person gave the notice to the Registrar as soon as reasonably practicable after becoming aware of the making of the relevant order.
(Emphasis added)
Accordingly, section 113A Child Support (Registration and Collection) Act 1988 (Cth) sets out a mandatory procedure whereby the Child-Support Registrar must be notified by the payee of the payee’s intention to seek recovery of a child support debt.[26] There was no evidence before the Court that the wife has complied with section 113A in seeking to recover the husband’s child support debt. Accordingly, the Court is regrettably unable to assist the wife in recovering the child support debt, based on her current application.
[26] Yarwood & Shore [2013] FCCA 2219 at [19] – [20].
Updated financial disclosure
The Rules are clear in respect to the obligation imposed on parties in respect to each party’s ongoing duty to provide financial disclosure to the other.
Correspondence between the parties’ solicitors[27] indicated that there is a live issue between the parties as to the adequacy of the financial disclosure provided by each of the parties to the other to date.
[27] Exhibit 68.
In these proceedings, it is not possible to examine the documentation that has been provided by each of the parties to the other in order to determine whether such disclosure has, or has not been adequate and in compliance with the Rules.
It is noted that neither party has provided the other with financial disclosure in respect to the financial year ended 30 June 2015. As it is now in excess of three months since the end of the 2015 financial year, the Court will make an order requiring the parties to provide mutual updated disclosure of their financial affairs, including the financial year ending 30 June 2015. That information will be required to be provided by the parties within twenty-eight days of the date of these orders.
Conclusion
It is regrettable that the parties have, in these proceedings, incurred substantial legal fees in circumstances where their mutual priority should have been the payment of their children’s school fees. With a modicum of goodwill, the issues that have been dealt with in this judgment were all capable of being resolved without the parties’ and the Court’s resources being engaged.
Parliament has enacted the Family Law Act in the expectation that the Court’s orders will be complied with. Failure to do so, by any party, will inevitably lead to further litigation. This will further deplete the property of the marriage and be contrary to the interests of the parties and their children.
For all of the above reasons, the Court makes the orders set out at the commencement of this judgment.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 26 October 2015.
Associate:
Date: 26.10.2015
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