McDermott & McDermott
[2014] FamCA 245
•18 March 2014
FAMILY COURT OF AUSTRALIA
| MCDERMOTT & MCDERMOTT | [2014] FamCA 245 |
| FAMILY LAW – PROPERTY – Interim proceedings – Reasons for making certain Orders consented to by the wife and not opposed by the husband |
| Family Law Act 1975 (Cth) |
| Martin & Martin and Ors [2013] FamCA 222 |
| APPLICANT: | Mr McDermott |
| RESPONDENT: | Ms McDermott |
| FILE NUMBER: | SYC | 70 | of | 2014 |
| DATE DELIVERED: | Orders made on 18 March 2014; Judgment delivered on 14 April 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 17 and 18 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Givney |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kenny |
| SOLICITOR FOR THE RESPONDENT: | Campbell Paton & Taylor |
Orders
That within seven days from the date of these orders the Husband shall provide to the Wife’s solicitors the following information and do the following things in relation to any work from 1 July 2013 to date that the Husband has undertaken on his own behalf, on behalf of B Pty Ltd (“the company”) or on behalf of any other entity that is of a similar nature or type of work to the work undertaken by the company in the normal course of its business:
(a)A list of particularising all such work undertaken including the name of the person or entity for whom the work was undertaken, the dates between which the work was undertaken, the amount of money paid or to be paid for all such work and particulars of the financial institution and account into which the money was or was intended to be paid;
(b)A list of all amounts of money which remain to be paid and direct the person or entity responsible for payment to make those payments into the company’s account at the National Australia Bank are being account …20 (“the NAB account”);
(c)Pay into the NAB account all the money presently held by him or under his control with respect to the work particularised by him in the list provided pursuant to (a) above less money paid from funds held by him or under his control properly expended in the usual course of business of the company.
That within seven days from this date the Husband and Wife authorise and direct the appropriate officer of the National Australia Bank to permit the Husband and the Wife to operate the NAB account independently of each other for the purposes of the usual course of business of the company and do all things necessary to facilitate each of them having internet banking access to the said account.
That the Husband and Wife shall pending further order facilitate all income received by the company in the usual course of business being paid into the NAB account from which payments in the ordinary course of business or pursuant to these orders shall be made.
That pending further order the Wife shall have the conduct of and manage on a day-to-day basis the farming enterprise conducted at the D Street, E Town property and the Wife shall be restrained from conducting the said farming enterprise other than in the ordinary course of business and through the company.
That pending further order the Husband shall have the conduct of and manage on a day-to-day basis the construction enterprise conducted during the course of the marriage by the company and the Husband shall be restrained from conducting the said construction enterprise other than in the ordinary course of business and through the company.
That pending further order the Husband is restrained on his own behalf or on behalf of any other entity save for the company from undertaking any work of the type or nature of the work that has been at any time prior to the date of these orders undertaken or engaged in by the company in the ordinary course of its business.
That pending further order the Husband is at liberty to draw from the company’s NAB account $2660 per week gross with such sum to cover his general living expenses and a contribution by him to one half of the cost of the governess employed by the parties for the children of the marriage with the characterisation of those drawings reserved to trial or as agreed by the parties.
That pending further order the Wife is at liberty to draw from the company’s NAB account the sum of $2660 per week gross with such sum to cover her general household living expenses and a contribution by her to one half of the cost of the governess employed by the parties for the children of the marriage with such sum to be reduced by an amount equivalent to any child support assessment liability in respect of which the Husband is assessed from time to time and is paid by him when due and payable with the characterisation of those drawings reserved to trial or as agreed by the parties.
That both the Husband and Wife shall be at liberty to draw from the company’s NAB account sums not exceeding $100,000 in total for each of them with such sums to be paid exclusively for their legal fees in these proceedings and that there shall be no drawings in excess of that sum without leave of the Court or the parties agreement in writing,
That the Husband and Wife shall authorise and direct Mr F of G & F, Accountants to provide to the Wife’s nominated accountant such documents as he or she may reasonably request and to answer any reasonably le enquiries made about the accounts of the business or the party’s personal taxation affairs as made by the Wife’s nominated accountant with the costs of G & F, Accountants in relation to such requests and the costs of the Wife’s nominated accountant to be paid by the company.
That the Husband and Wife shall authorise and direct Mr F of G & F, Accountants to provide to the Wife’s solicitors such documents as they may reasonably request in writing and to answer any reasonable enquiries made about the accounts of the business and the parties personal taxation affairs made by the wife’s solicitors with the costs of G & F, Accountants in relation to such requests to be paid by the company and the Wife shall ensure that a copy of such request is provided to the Husband’s solicitors.
That pending further order and save and except for any items of property agreed in writing by the parties to be sold each of the parties is restrained from selling, transferring or otherwise disposing of or mortgaging, charging or encumbering or further mortgaging, charging or encumbering any property of the company or the partnership, or any property held in their sole name is or jointly with each other or with any other person or entity otherwise than in the ordinary course of business without first giving the other party seven days’ notice in writing of their intention to do so.
That on not less than a calendar monthly basis, and in the event of disagreement as to the date on or before the third Friday of each month, the parties shall disclose by exchange any relevant documents in respect of any transaction that has taken place in the ordinary course of operation of the separate business enterprises managed by each of them in the company in the preceding calendar month.
That in the event that the Husband incurs any debt or authorises any expenditure on behalf of the company or the farming partnership to a value in excess of $25,000, the Husband must provide to the Wife not less than 48 hours’ notice of his intention to do so save and except in urgent circumstances involving the replacement or urgent repair of plant and machinery that is on site.
That in the event that the Wife incurs any debt or authorises any expenditure on behalf of the company or the farming partnership to a value in excess of $5000 the Wife must provide to the Husband not less than 48 hours’ notice of her intention to do so save and except in urgent circumstances involving the replacement or urgent repair of plant, machinery or other equipment that is required for the ongoing operation of the farming partnership.
That in the event that the Husband has since 1 July 2013 sold or otherwise disposed of any plant, equipment or machinery owned by him or in which the company had any interest whatsoever then he must promptly but no later than 28 days from the date of these orders provide to the Wife:
(a)A list of items sold and all documents instruments and writings in relation to wall such sales; and
(b)In the event that sale proceeds were not paid into the NAB account pay within 28 days from this date such sale proceeds received by him into the NAB account and do all necessary things to direct the purchaser of any items sold for which any amount remains unpaid to make remaining payments for the purchase into the NAB account.
That the Husband is hereby restrained from attending at or upon the property at Street, E Town without giving to the Wife not less than 72 hours prior notice of his intention to do so and on any such attendance the Husband shall be accompanied by Mr H and no other person or persons except as provided for in these orders or with the written consent of the Wife.
That the Husband is restrained from flying in or through the air space over the D Street, E Town property except with the consent in writing of the Wife.
That, save as hereinafter provided, the Husband is hereby restrained from removing any chattels, equipment and machinery from the property at D Street, E Town without the written consent of the Wife.
That upon the Husband giving not less than 72 hours’ notice to the Wife he shall be at liberty to arrange for a suitably qualified mechanic to attend at the E Street property to inspect and attend to rendering airworthy the aeroplane thereon and that thereafter upon giving to the Wife not less than 72 hours’ notice the Husband shall be at liberty to attend at the said property provided always that he is accompanied by Mr H to collect the aeroplane and remove it from the said property and for the purposes of this order the Husband’s notice to the Wife shall be in writing which shall include SMS or email communication.
That the Husband and Wife shall keep in good order and repair and shall be restrained from causing any damage (or further damage) to any building or a construction on the D Street property (including but not limited to the homestead) or the I Town property and any plant or equipment of the company or partnership “including vehicles” and any other property in their respective possession.
That the Wife is restrained from allowing any other person, save for herself to operate [the utility] or [4WD] motor vehicles in her possession unless those persons are properly licensed to do so in the State of New South Wales and/or any other state or territory of Australia and the Husband shall ensure that the said vehicles are at all times registered and insured.
That within one calendar month from the date of these orders the solicitors for the Husband and Wife shall on the parties instructions confer for the purpose of endeavouring to reach agreement as to the value of assets, liabilities, financial resources and superannuation entitlements of the parties and if there is no agreement as to the valuation of any such items then a single expert witness shall be appointed to determine the value of any disputed item and the Husband shall nominate three single expert’s to prepare written valuation reports as to the market value of:
(a)The real estate held by the parties, whether solely, jointly, with any other person or entity or whether held by any entity in which the parties have a proprietary interest;
(b)The plant, equipment motor vehicles and machinery of the company including the partnership and otherwise the enterprises of the parties or as may be held in their names whether solely or jointly with any other person or entity;
(c)The livestock of the company, including the partnership and otherwise the enterprises of the parties or as may be held in their names whether solely or jointly or with any other person or entity;
(d)The furniture, furnishings and effects of the parties;
(e)The interests of the parties in the company including the partnership.
That within 14 days from the Husband nominating three valuers as provided for hearing the Wife shall select one of the nominated valuers for such purposes.
That within a further 14 days from the Wife selecting a valuer or valuers as provided for herein the parties shall instruct their solicitors to forward an agreed joint letter of instruction to the single expert to be appointed and the parties are granted liberty to relist the matter on seven days notice to the Court and to the other party in respect of any issue arising in relation to the joint letter of instruction to the single expert to be appointed.
That the parties shall pay in the first instance in equal shares for the payment of the reasonable fees and disbursements of any single expert appointed pursuant to these orders with the ultimate liability for such reasonable fees and disbursements reserved to trial or agreement between the parties.
That for the purposes of the appointment of the single experts and the tasks to be undertaken by the appointed single experts:
(a)The Wife shall provide to any single expert appointed, in a timely manner, copies of all documents in her possession, custody or control as may be requested by that single expert with copies of such documents to be provided to the Husband’s solicitors;
(b)That the Husband shall provide to any single expert appointed, in a timely manner, copies of all documents in his possession, custody or control as may be requested by that single expert with copies of such documents to be provided to the Wife’s solicitors;
(c)That each party shall make available for inspection by any appointed single expert all items that are to be valued pursuant to these orders and each party shall provide access to each item without restriction for the purposes of such inspection by the single expert;
(d)That at all times all instructions to any single expert appointed shall be in writing and issued jointly on behalf of both parties.
That for the purposes of any written notice to be provided by either of the parties to the other then such notice shall be in writing with such writing to include SMS or email communication or correspondence or email communication between the parties respective solicitors.
That otherwise interim applications before the Court are dismissed.
That these proceedings be adjourned to a listing before the Docket Registrar on Thursday 29 May 2014 at 9:30 am and on such a listing the Docket Registrar make such other further orders or directions as may be appropriate for the matter to proceed to a Conciliation Conference at a time when there remains no outstanding valuation issue between the parties.
IT IS NOTED THAT:
(a)The Husband has on 17 March 2014 advised the Court that he has exchanged contracts to purchase an apartment at J Town, Queensland at a purchase price of $910,000 with the intention that no monies accumulated during the course of the marriage or to date will be used in the purchase and that the Husband will be borrowing the whole of the purchase price and that it is intended that of the sum of $2660 to be drawn by the Husband from the companies NAB account it is inclusive of mortgage expenses in relation to that property in the lieu of rent.
(b)The Wife has today advised the Court that it is her proposal to cause the sale of a portion of the goat herd presently on the D Street, E Town, New South Wales property at an appropriate time following recent rains.
(c)These proceedings are suitable for private mediation having regard to the nature of the pool of assets and the financial issues for determination and reserves the question of referral for mediation for further consideration in due course.
(d)The Court has been informed by the parties that final draft financial statements and tax returns for the company and draft personal tax returns for each of the parties will be available for consideration by the parties within seven days from this date.
(e)To the extent of the operation of any of the orders herein would be inconsistent with the terms of the provisional AVO made on 9 January 2014 in the E Town Local Court as between the parties, then the terms of these orders shall prevail.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mc Dermott & McDermott 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 PARRAMATTA |
FILE NUMBER: SYC 70 of 2014
| Mr McDermott |
Applicant
And
| Ms McDermott |
Respondent
REASONS FOR JUDGMENT
In a seemingly senseless act the wife filled the fuel tank of the family plane worth an estimated $300,000 with water, removed the valves from the plane’s tyres and chained the plane to a shed on the family rural property.
The wife’s actions demonstrate the level of distrust between herself and the husband that led to interim proceedings before the Court.
The husband and wife began living together in 1985, were married in 1990 and separated in December 2013.
There are two children of the relationship, now aged almost 5 and 8. The children reside with the wife on the parties’ rural property.
It was only a few weeks after separation that the parties commenced litigation, not only in this Court, but also in their Local State Court where apprehended domestic violence order proceedings for the asserted protection of the wife are listed for hearing later in the year.
In the apprehended domestic violence proceedings the husband is subject to interim Orders not to approach or contact the wife, except through legal representatives, as agreed in writing or pursuant to orders made by this Court. The Court in those proceedings noted that the husband has numerous items of machinery situate on the parties’ rural property and that he may enter upon that property for the purposes of, but not limited to, collecting/delivery items to the shed, but may not enter the home situated on the land, and that he must be accompanied by a named employee.
During the latter years of the parties’ relationship the wife primarily conducted a substantial property in New South Wales. That property is owned by the parties in their joint names. The husband operated a construction business from the property and from a property that was acquired for that purpose in Queensland. The businesses conducted by the parties to the marriage are conducted through a company “B Pty Ltd”. Revenue from each of the business activities was paid into that company and payments were made out of the company in respect of each of the businesses in the ordinary course of such business and for the support of the family. Either party was at liberty, either through the internet or by cheque, to make payments from the company as they each saw fit relating to the businesses conducted by them.
After the parties’ separation in December 2013, the husband obtained accommodation elsewhere with friends. He returned to the property a few days after separation to collect machinery and parts for the purpose of the business conducted by him to find that the plane used by him in connection with the family businesses had been rendered inoperable by the actions of the wife.
During their relationship the parties were each able to operate on the various bank accounts. However, the husband was informed by the parties’ bank that his access to a credit card in respect to which the wife was the primary holder had been cancelled and that the wife had put a stop on the business accounts to the extent that the signatures of both the husband and wife were henceforth required on cheques. The wife says that she did so out of concern for their businesses’ financial situation and the husband’s spending at the time.
In retaliation to the actions of the wife, the husband commenced to trade the construction business through a new company “Z Pty Ltd”. He commenced to deposit income properly payable to B Pty Ltd into his new company and make payments out of that income in the course of the business or for his own purposes. Significant funds have been paid into and disbursed from the new company account.
The husband commenced proceedings on 8 January 2014 seeking orders in relation to the children in respect of which there is no longer an issue.
The wife’s Response filed on 21 February 2014 sought orders that, in summary, relevantly provide:
a)for the husband to recommence trading through B Pty Ltd and not otherwise;
b)restrictions on each of the parties drawings from the company for personal expenses; and
c)for the husband to be restrained from removing chattels and equipment and machinery from the rural property and from attending that property without 72 hours prior notice to the wife.
The wife in an Amended Response filed on 11 March 2014 relevantly sought orders as follows:
a)that the husband be restrained from continuing to trade through “Z Pty Ltd” and that he trade solely through “B Pty Ltd”;
b)that the husband deregister the company “Z Pty Ltd”;
c)that the husband provide to the wife’s solicitors all documents evidencing work undertaken by him in relation to the business of construction either on his own account or through any other entity for the period from 1 July 2013 and account for moneys by payment into the “B Pty Ltd” bank account;
d)that the wife continued to have the day-to-day management of the rural enterprise and the husband continue to have the day-to-day management of the construction business in the ordinary course of those businesses, with income to be paid into the “B Pty Ltd” account and that all payments from that account be authorised by both parties;
e)that drawings be authorised from the company account to pay the children’s governess fees, a periodic payment to the wife and a periodic payment to the husband; and
f)that the husband be restrained from removing any chattels equipment and machinery from the rural property without the consent of the wife.
The husband in his Amended Application filed on 12 March 2014 sought orders that relevantly provide:
a)that the husband provide disclosure of all documents relating to the trading affairs of “B Pty Ltd” in relation to the construction business conducted by the company for the previous 12 months;
b)that upon the wife facilitating the husband to solely operate the banking account of “B Pty Ltd” the husband pay into that company’s account all monies held by him in relation to the construction business and thereafter the husband ensure that the business is conducted through “B Pty Ltd”;
c)that the wife continue to manage on a day-to-day basis the rural farming enterprise as had been previously conducted by her;
d)that the husband continue to manage on a day-to-day basis the construction business previously conducted by him;
e)that the wife open a separate account for the farming enterprise and thereafter conduct that enterprise solely through that account;
f)that otherwise each of the parties be restrained from selling or disposing of or encumbering any of the parties’ assets otherwise than in the ordinary course of business and without first giving to the other party seven days’ written notice;
g)that the husband be at liberty to be accompanied by an employee to collect an truck and bulldozer from the rural property; and
h)that the husband be at liberty to arrange for a mechanic to attend at the rural property to inspect and repair the aeroplane and that, accompanied by an employee, the husband be at liberty to remove that plane from the rural property upon three days’ notice to the wife.
The interim proceedings were before the Court on 17 March 2014 and then again on 18 March 2014.
On the recommencement of proceedings on 18 March 2014 and having had the opportunity of reading the parties’ affidavits relied upon by their respective counsel, both parties were informed of the Court’s preliminarily view as to appropriate orders that may address the interim issues in dispute.
Subsequently, the Court was invited to make orders in terms of the document marked into evidence as Exhibit B. Those Orders are set out at the commencement of these reasons for Judgment. The Orders in so far as the wife was concerned were made with her consent and, other than Orders 2, 3, 8, 9, 17, 19 and 32 (sic), with the consent of the husband.
Counsel for the husband did not seek to be heard in opposition to the specific orders, but sought short reasons for Orders 2, 3, 8, 9, 17, 19 and 32 (sic).
The Law to be applied
A useful overview of injunctive principles was provided by Cronin J in Martin & Martin and Ors [2013] FamCA 222 (9 April 2013) where his Honour relevantly said at [15] and following:
15. Section 114 of the Family Law Act 1975 (Cth) (“the Act”) enables the Court to provide a discretionary remedy. The fundamental principle is that an order should only be made if it is proper. Discretionary though the remedy may be, it is not unfettered and must be exercised according to law (see Stanford v Stanford [2012] HCA 52).
16.The Court must look to the facts of the particular case as well as the governing principles set out in Part VIII of the Act for the guidance of the exercise of that discretion. The facts in this case must fit within those provisions.
…
18.In Waugh and Waugh (2000) FLC 93-052 the Full Court cautioned against applying broad-brush principles regarding Mareva orders indiscriminately to injunctions over assets in family law disputes (see also Mullen v DeBry[2006] FamCA 1380).
19.In financial cases, injunctions between parties to the relationship usually arise where one party has control of a large majority of the assets which are the subject of the dispute (see Blue Seas Investments Pty Ltd v Mitchell and McGillvray(1999) FLC 92-856).
20.Unlike other jurisdictions, it would be unusual for an undertaking as to damages to be sought inter partes (at least as between parties to the marriage or de facto relationship) unless there was a strong indication that there would not be sufficient equity in property other than in the assets to be secured, to make an adjustment between the parties to achieve a just and equitable outcome.
…
22.The power to order an injunction continue until trial is purposive – it must be seen to serve the interests of the court by protecting against abuse of process. If there is evidence that a party is a risk of removing assets from the reach of the court, this makes the ultimate orders effectively unenforceable. The purpose is therefore to protect the efficacy of the orders that may lie against the prospective judgment debtor (Cardile v LED Builders Pty Ltd(1999) 198 CLR 380, 392; Jackson v Sterling Industries Ltd(1987) 162 CLR 612 at 623, 638).
23.Usually, the right to the injunction is asserted by one party but the evidence remains untested. The court seeks to protect the underlying right claimed through the interlocutory injunction (Robb Evans of Robb Evans & Associates v European Bank Ltd [2009] NSWCA 67, [28]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd(2001) 208 CLR 199.)
The Court is empowered to make such order as it considers proper.
Short reasons for each order are addressed below, save for in respect of an order 32, as there is no such order.
Order 2 - That within seven days from this date the Husband and Wife authorise and direct the appropriate officer of the National Australia Bank to permit the Husband and the Wife to operate the NAB account independently of each other for the purposes of the usual course of business of the company and do all things necessary to facilitate each of them having internet banking access to the said account
Historically, the business enterprises conducted by the parties in the marriage have been conducted within the one corporate entity. A precipitating circumstance for the present application was the husband, as it were, siphoning off income from the business conducted by him to a separate account.
The husband’s conduct in so doing prevented the wife from having access to and overseeing the various cash flow transactions in terms of income in and payments out by the husband in respect of income that at all material times was matrimonial income.
A restoration of the historical trading circumstances through the one entity is indicated so as to avoid either party utilising what has traditionally been a united matrimonial income stream in a way which prevented the other party from having knowledge of transactions undertaken. It was contended on behalf of the wife that to allow such an arrangement to continue would risk the dissipation of income and make it difficult for the wife to, as it were, trace the relevant transactions and use of funds by the husband.
In the circumstances, an order requiring the parties to continue to conduct their respective enterprises through their long established corporate entity is proper in all the circumstances, in particular in the context of the other supervisory orders made.
Order 3 - That the Husband and Wife shall pending further order facilitate all income received by the company in the usual course of business being paid into the NAB account from which payments in the ordinary course of business or pursuant to these orders shall be made.
This order is facilitative of the arrangements put in place by Order 2 set out above for the reasons explained.
Order 8 - That pending further order the Wife is at liberty to draw from the company’s NAB account the sum of $2660 per week gross with such sum to cover her general household living expenses and a contribution by her to one half of the cost of the governess employed by the parties for the children of the marriage with such sum to be reduced by an amount equivalent to any child support assessment liability in respect of which the Husband is assessed from time to time and is paid by him when due and payable with the characterisation of those drawings reserved to trial or as agreed by the parties.
The husband sought an order that he be permitted to draw from the company’s NAB account the sum of $2,660 per week to cover his general living expenses, including mortgage payments on a new property purchased by him and one half of the costs of the governess employed by the parties to care for the children on the rural property.
As far as the wife was concerned, he sought no order for any periodic payment for her support, notwithstanding that historically the business conducted by her on the rural property generated little or no income or indeed taxation losses.
The husband was in control of the construction business that generated significant income. The company through which both parties traded historically in the year ended 30 June 2013 generated a trading profit before income tax of $4,581,287 and as at that date had retained earnings of $7,020,239, with cash at bank at that date of $1,383,994.
In the urgent circumstances in which the interim hearing came before the Court there was little opportunity to consider the financial circumstances of either party in terms of a detailed analysis of their respective financial needs. The husband was excepting of the circumstances that he be limited in his personal drawings from the company to the sum of $2,660 per week. His proposal for the wife’s support was that she within 21 days cause the sale of livestock on the rural property at a price of not less than $35 per head, generating an expected gross sale price of $42,000.
It was contended on behalf of the wife that rural circumstances notwithstanding recent rains, rendered it appropriate to consider selling stock on the property in a more timely fashion as determined by the wife, who has historically conducted of the rural enterprise. In any event, by reason of the previous orders made, the income generated by her is required to be paid into the company account.
In the circumstances, as was contended by counsel for the wife, it was proper to facilitate each of the parties being restrained from making personal drawings of more than $2,660 per week from the company account, with the wife being required to make a similar contribution to the costs of the governess for the children.
The mirror orders in relation to the husband and wife prevented the withdrawal of funds by them from the company account at a whim and for undisclosed non-business purposes.
Order 9 - That both the Husband and Wife shall be at liberty to draw from the company’s NAB account sums not exceeding $100,000 in total for each of them with such sums to be paid exclusively for their legal fees in these proceedings and that there shall be no drawings in excess of that sum without leave of the Court or the parties agreement in writing.
As at 30 June 2013 the company held significant cash assets and, prior to the interim hearing, significant cash sums representing company income had been paid by the husband into a separate account solely under his control. The husband sought an order that provided that he be permitted to pay his legal expenses from the income of the construction business and that the wife be permitted to pay her legal expenses from her savings in existence at the time of the interim hearing.
It was common ground that the wife’s savings substantially represented an inheritance received by her.
The company generated significant income as referred to above and, in the event that the husband is entitled to pay his legal expenses from the assets of the company through which the matrimonial enterprises were conducted, it is proper that the wife also be able to do so without diminishing the modest savings available to her.
During submissions it was agreed by counsel for both parties that drawings for legal expenses, if such an order was made by the Court, be limited to $100,000 each. Such a limit in the circumstances is proper.
Order 17 - That the Husband is hereby restrained from attending at or upon the property at D Street, E Town without giving to the Wife not less than 72 hours prior notice of his intention to do so and on any such attendance the Husband shall be accompanied by Mr H and no other person or persons except as provided for in these orders or with the written consent of the Wife.
The husband has, following separation, lived elsewhere than the rural property owned by the parties. He has purchased other accommodation for himself in Queensland.
The wife makes complaint in relation to the husband’s conduct towards her and other complaints in relation to the husband’s abuse of alcohol, animal cruelty and abuse of the wife. There are outstanding apprehended violence proceedings before the Local Court with interim Orders in place restraining the husband from assaulting, molesting, harassing, threatening or otherwise interfering with the wife, engaging in conduct that intimidates the wife and stalking her. In addition, the Local Court made further interim Orders in the following terms:
a)the (husband) must not approach or contact the (wife) by any means whatsoever, except through the (husband’s) legal representative or as agreed in writing or as permitted by an order or directions made under the Family Law Act 1975 (Cth) as to counselling, conciliation or mediation; and
b)the (husband) must not destroy, deliberately damage or interfere with the property of the (wife).
In the context of the apprehended violence proceedings, the Local Court made the following notation to the interim Orders:
The Court notes that the matrimonial property is approximately … acres in size and contains a shed in which numerous items … relating to the (husband’s) [construction] business are stored. To avoid doubt, the (husband) may enter upon the land known as [“D Street”] station, [E Town] including but not limited to collecting/delivery items to the said shed but may not enter the home situated on the land. The (husband) must at all times be accompanied by [Mr H] (employee of the (husband’s) business) when attending upon the land.
In the background circumstances of alleged conduct in this matter, it is proper that the husband be required to give to the wife reasonable notice of his intention to attend at the property, particularly where he resides a significant distance from the property and the wife occupies a substantial rural property that is isolated from the nearest main township. The rural property represents the wife’s home and her workplace. It is proper that she be entitled to go about her business without unexpectedly coming across the husband, who may have otherwise entered upon the property without notice to her.
The order represents an exception to the prohibition contained in the Local Court Orders and facilitates the husband in an orderly way being able to attend at the rural property occupied by the wife.
Order 19 - That, save as hereinafter provided, the Husband is hereby restrained from removing any chattels, equipment and machinery from the property at D Street, E Town without the written consent of the Wife.
The wife has concerns that the husband may attend at the rural property and remove items necessary or incidental to the occupation of that property or the proper conduct of the rural enterprise conducted by her thereon. The order facilitates a preservation of property to that extent and provides for the husband to seek the wife’s consent to the removal of items on the property.
In the event that the wife’s consent is unreasonably withheld, he is able to make application to the Court for an appropriate order at the wife’s risk as to costs.
Having regard to the matters set out above, the order in all the circumstances is proper.
Order 32 (?)
During submissions a document was provided to the Court that was admitted into evidence as Exhibit A. That document represented a joint minute of order identifying controversial aspects contended for by each of the parties. In that document, the husband contended for an order in the following terms:
22. That the Husband (provided that he is accompanied by [Mr. H]) shall be at liberty to collect the [truck] from the [D Street] property and remove it from the Wife’s possession, provided that it advanced written notice of no less than 3 days is given to the Wife of the date upon which the Husband intends to collect the [truck].
It is assumed that it was this proposed order that was the subject of the request for short reasons.
It was contended by counsel for the husband that the truck was fitted with a crane and for the purposes of the business of the rural property carried a stock crate for the purposes of the transport of stock. The husband contended that he sought possession of the truck so that it could be sold.
As there was no submission that the vehicle was required by the husband for the purposes of his business and his submission conceded that the vehicle will is used in part for the purposes of the conduct of the rural business it was proper that the husband’s application for this order be refused.
The Orders set out at the forefront of these Reasons for Judgment were made for the reasons set out above.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 April 2014.
Legal Associate:
Date: 14 April 2014
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