Matech and Matech

[2018] FamCA 271

FAMILY COURT OF AUSTRALIA

MATECH & MATECH [2018] FamCA 271

FAMILY LAW – PROPERTY – INTERIM – injunctive relief ‑ where the husband has failed to appear before the Court ‑ orders made to preserve the wife’s sole use and occupancy

Family Law Act 1975 (Cth)

Hogan & Hogan (1986) FLC 91-704
Barro & Barro (1983) FLC 91-300
Strahan & Strahan [2009] FamCAFC

APPLICANT: Ms Matech

RESPONDENT: Mr Matech

FILE NUMBER: BRC 2432 of 2018

DATE DELIVERED: 3 April 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 3 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Hackett

SOLICITOR FOR THE APPLICANT: Evans & Company Family Lawyers

No appearance by the Applicant

Orders

1. That the wife have sole and exclusive use of the property situated at B Street, Suburb C in the State of Queensland more particularly described as Lot …, Local Government D Town, …, Title Reference … (“B Street”).

2. That the husband cause to be paid as and when due the following with respect to B Street:

   (a)       Repayments on any loan secured by mortgage against the property;

   (b)       Body corporate;

   (c)       Insurance;

   (d)       Rates and water levies; and

   (e)       All other costs associated with the ownership of the property.

3. That the husband cause to be paid as and when due the following with respect to the motor vehicle in the wife’s possession:

   (a)       Insurance;

   (b)       Registration; and

   (c)       Maintenance.

4. That the husband is restrained and an injunction is hereby granted restraining him whether personally or otherwise by his servants or agents from:

   (a)doing any act or omission to cause B Street to be transferred, assigned, or to change of beneficial owner or to be further encumbered or to otherwise be dealt with unless as provided for by this Order;

   (b)without first providing the wife with sixty (60) days’ written notice:

   (i)dealing with any entity in which he holds an interest or holds a position of office including but not limited to:

   1.transferring, assigning or encumbering any interest or shareholding he holds; and/or

   2.engaging in any conduct which falls outside of usual business operations.

   (ii)dealing with any item of property including by sale, transfer, assignment or encumbrance;

   (iii)transacting on any bank accounts, whether in his name personally or in the name of any entity in which he controls or holds an interest in an amount greater than:

   1.   a single transaction of $5,000; and

   2.   multiple transactions exceeding $15,000 in twenty four (24) hours.

   (c)doing any act or omission to cause the motor vehicle to cease being available for use by the wife.

5. That the husband disclose the following to the wife within twenty eight (28) days:

   (a)Personal tax returns for the 2015 to 2017 fiscal years;

   (b)Tax returns and financial statements for any entity which he holds an interest or holds a position of office for the 2012 to 2017 fiscal years;

   (c)Statements for any bank account, including loan or credit account, for the period 1 January 2016 to present whether in the husband’s name or any entity in which the husband holds an interest or holds a position of office including any accounts which have closed during that period;

   (d)That with respect to any entity in which the husband has held an interest or a position of office, but has ceased to do so since 1 January 2016 to the date of these Orders, he shall provide:

   (i)tax returns and financial statements for the 2012 to 2017 fiscal years; and

   (ii)statements for any bank account, including loan or credit account, for the period 1 January 2016 to present.

   (e)       Any record which the husband seeks to rely upon with respect to:

   (i)any loan he contends he or any entity which he has an interest or holds a position of office; and

   (ii)any disposal, whether by himself or an entity which he held an interest or position at the time of disposal, including by transfer, assignment, advance, gift or otherwise of property to one of his children or other family members since 26 July 2005 to present.

6. That the husband pay, or cause to be paid, to the wife the sum of $100,000 on or before 27 April 2018, with the classification of the payment reserved to the trial Judge.

7. That the wife’s costs of today be reserved.

8. That these proceedings be adjourned for Case Management Hearing at 9.30am on 16 May 2018 in the Family Court of Australia at Brisbane.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matech & Matech has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2432 of 2018

Ms Matech

Applicant

And

Mr Matech

Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. I will give some brief oral reasons.  I do so in circumstances where the Court is aware that the Respondent husband, Mr Matech says he no longer can afford legal advice.

2. The husband’s material was prepared, it says, by himself on 28 March 2018, such material consisting of a Response, an Affidavit and Financial Statement.  The Affidavit attaches a number of documents, the authenticity of which are disputed by the wife in her Counsel’s written submissions filed today.  The Financial Statement asserts that the husband’s liabilities exceed his asserts by an amount of $1.2 million.

3. It would have been better if the husband was able to be here today, however for reasons which he may choose to explain at a later date, notwithstanding that he knew that these proceedings were brought on urgently at the request of the wife through the Application in a Case filed 15 March 2018, returnable today, the husband left the country shortly after, presumably, signing documents on 28 March and I am informed from the Bar Table, has no intention to return until on or about 20 April.

4. I have indicated that this matter shall be adjourned before me to 16 May 2018, which is the next available date for me after 20 April.  That should also be more than sufficient time for the husband to deal with the matters that arise from today’s hearing and/or arise from the outline prepared today by Counsel for the wife.  I should also say, as an introductory comment, that I am satisfied the husband had lawyers initially who accepted service of the Initiating Application filed by the wife on 6 March 2018, with service having been effected on 7 March 2018 by electronic means, and the Application in a Case expediting the matter filed on 15 March 2018 was served on that same firm, who I infer had not had their retainer in any withdrawn on or about 20 March.

5. At the centre of this dispute involving a relationship between the Applicant wife and the Respondent husband, who commenced cohabitation upon their marriage in 2005, is a financial agreement which is in evidence before the Court dated 26 July 2005, some five days before the marriage.  The financial agreement sets out various financial arrangements should the relationship come to an end.  The financial agreement also purports through the schedule attached to the agreement that at the time the husband had  control of entities that had property or other interests with a gross asset worth of $54,834,500 and debts of $27,889,000.  Therefore, a net asset pool of $26,948,500.

6. The husband describes himself as a small time property developer, which may be an expression showing some humility.  Nonetheless, and sadly, it seems clear on the evidence that the husband was made bankrupt on 6 November 2012, which would have, by effluxion of time, expired some three years later.  The financial agreement provides inter alia that should the relationship come to an end then the wife is entitled to retain the residence that was then the family residence.

7. It also provides for the wife to be entitled to receive, amongst other items such as cars and other personal property, a payment calculated at the rate of $100,000 per year of marriage until separation.  The wife says, and the husband does not dispute in his Affidavit, that after the marriage the parties had a continuous relationship until separation occurred in December 2017.

8. It is apparent that the husband sought to vary the terms of the financial agreement.  I should just stop at this stage at least to identify that I use the term financial agreement rather than binding financial agreement as I have made no finding, nor is the Court asked to determine that the financial agreement is not binding.  The wife’s application is effectively an application to enforce the financial agreement.

9. Nonetheless, after the financial agreement was entered into and after the parties had seemly separated, the husband did engage their Accountant Mr E (as some sort of mediator) and through that process he prepared documents which were submitted to the wife.  They included a termination agreement (in respect of the financial agreement) and an Application for Consent Orders and consent orders, the effect of which was to reduce the entitlement of the wife to property she would otherwise be entitled to receive under the financial agreement.

10. In the very comprehensive written submissions of Counsel for the wife, Mr Hackett, today, he draws a comparison between the various assertions of assets made by the husband, both in the Application for Consent Orders, a document tendered before the Court today and having been signed by the husband as if true, and the Affidavit that he filed most recently.  I do not propose to make any findings, nor could I, on an interim basis at this stage, in these circumstances, in relation to a number of the items of property said not to be included in the most recent Affidavit of the husband, or the validity of various loan transactions which the husband asserts reduces significantly his net asset position.

11. They are matters for another day, upon which the husband should be given a reasonable opportunity to respond.  Nonetheless, what is in my view clear, is that the property at B Street, Suburb C is the property under the financial agreement that was the home of the parties at the time of separation, and under the financial agreement is the entitlement of the wife.  The wife has filed a caveat over the title.  The Suburb C property was vested in F Pty Ltd as Trustee for the Ms Matech Trust on or about 29 August 2007, as reflected in a Registration Confirmation Statement marked as Exhibit 1 today.

12. The Ms Matech Trust, of which F Pty Ltd is trustee, holds the property, has the husband as the appointor/principal and the wife is a beneficiary, as is the husband.  In all respects, since 2007, although held essentially in a family trust, the property has been the matrimonial home of the parties.  In the circumstances of the matter, at this stage, it seems to me both equitable and proper that the further dealing with the property by the husband, unilaterally, should be restrained, until he at least returns to the country and provides a proper explanation for many of the matters raised in the material and submissions of the wife, which he does not really do in his Affidavit in response.

13. I am satisfied, on the wife’s material, that she was receiving the benefit of funds, the source of which is really unclear because, although the husband has provided a couple of bank statements to his Affidavits, they do not reveal themselves as the source for the payment by the husband to the wife of the amount of $6,200 per month, that the wife was receiving.  There is quite possibly a very clear and simple explanation for this that, no doubt, the husband will be keen to tell me about.  The financial circumstances of the husband are such that they are in some degree of uncertainty.

14. Mr Hackett seeks to explore these uncertainties, based on the material available at this stage, which is sufficient, in my view, to raise concerns about whether the Court has yet got the full picture of the husband’s financial dealings.  Mr Hackett says the Court should be sceptical.  The Court’s view is it should be cautious about accepting, in the circumstances, that there are no other funds that may be available to the husband or any of those associated or controlled by him.  Again, when he returns to Australia, these matters can be more fully ventilated and investigated.

15. I am satisfied, however, that it is appropriate to protect the wife’s interest in the Suburb C property and I propose, therefore, to make orders:

    a)that preserve the wife’s use and occupation of that property;

    b)to require the husband to make payments on the property, as he has in the past;

    c)for the wife to retain the use of the motor vehicle, which has been in her possession; and

    d)for there to be injunctive relief in accordance with the Application served upon the husband on 7 March 2018 restricting him from transactions on his accounts to a single transaction of $5,000 or a multiple transaction exceeding $15,000 in any 24 hour period other than in the course of business.

16. These are the orders sought in paragraphs 1, 2, 3, 4 of the minute of orders sought, and I make those orders accordingly.

17. In making these injunctions I am, of course, aware that there could be some adverse effect upon the husband, but he does not, in circumstances where he says he has no money or no capacity to engage lawyers, but similarly, he can be overseas for some three weeks and not appear before the Court today, provides no explanation and, until he does so, I am prepared to take the robust approach of protecting the wife’s right to the property, which she is entitled prima facie to receive under the financial agreement.  The husband is asked to make further disclosure to the wife, by paragraph 5 of the orders sought.  They all seem appropriate, and they are able to explain to the wife and her lawyers the basis upon which his financial position is as difficult as he claims it, plainly, to be, in his Affidavit, namely “I have no money”.

18. At paragraph 6 of the orders sought the wife seeks the following order:

    That the husband pay to the wife the sum of $100,000 within seven days of the date of this order, with the classification of the payment reserved to the trial judge.

19. Mr Hackett, no doubt, alerted to the authorities that identifies the need to clarify the source of power being relied upon by a Court in making what previously used to be called a costs Hogan & Hogan (1986) FLC 91-704 or Barro & Barro (1983) FLC 91-300 order or, more recently, a Strahan & Strahan [2009] FamCAFC order. It says the order should be made under section 117 of the Family Law Act 1975 – the costs jurisdiction.  It could also be made, it seems to me, as a partial property enforcement of the financial agreement.  I am satisfied that the circumstances of this case make it appropriate that the order in these terms be made, although I accept it is not readily apparent, on the husband’s material alone, to know the source from which he will pay the $100,000.

20. No doubt it may be the same source that has enabled him to spend three weeks in Asia, or to pay the $6,200 previously, a month, to the wife.  I just do not know.  I think, in the scheme of arrangements though, and bearing in mind that I do have now, details of the costs agreements, which is one of the requirements, I understand the complexities of these matters, the number of uncertainties that are involved, including the fact that there are likely to be valuations required and the like.  That $100,000 is a reasonable figure.

21. I propose that the husband pay or cause to be paid to the wife the sum of $100,000 on or before 27 April 2018, being after the husband is likely to have returned to Australia, with the classification of the payment reserved to the trial judge.  I will reserve the costs of today.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 3 April 2018.

Associate: 

Date:  30 April 2018