Nafus & Valdon
[2021] FedCFamC1F 302
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nafus & Valdon [2021] FedCFamC1F 302
File number(s): SYC 7137 of 2020 Judgment of: ALTOBELLI J Date of judgment: 15 December 2021 Catchwords: FAMILY LAW – INTERIM PROPERTY – Spousal maintenance – Interim costs – Injunctions – Imbalance between the financial positions of the parties – Orders made for spousal maintenance – No orders made as to injunctions regarding personal protection or preservation of property. Legislation: Family Law Act 1975 (Cth) ss 68B, 72, 74, 90SM, 114, 117 Cases cited: Blueseas Investments Pty Ltd v Mitchell (1999) FLC 92-856; [1999] FamCA 745
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Hartley & Hartley [2021] FedCFamC1F 178
Mitchell and Mitchell (1995) FLC 92-601; [1995] FamCA 32
Oates & Crest (2008) FLC 93-365; [2008] FamCAFC 29
Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144
Saxena v Saxena (2006) FLC 93-268; [2006] FamCA 588
Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 17 November 2021 Place: Sydney (via videoconference) Counsel for the Applicant: Ms Gillies SC Solicitor for the Applicant: Scarf Family Law Counsel for the Respondent: Mr Cummings SC Solicitor for the Respondent: Pearson Emerson Family Lawyers ORDERS
SYC 7137 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NAFUS
Applicant
AND: MR VALDON
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
15 DECEMBER 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The Applicant have exclusive occupation of the property situate at B Street, Suburb C in the State of New South Wales being the whole of the land contained within Folio Identifier … (“Property B”).
2.The Respondent is restrained from entering the Property B without the prior written consent of the Applicant.
3.The Respondent have exclusive occupation of the property situate at D Street, Suburb E in the State of New South Wales being the whole of the land contained in Folio Identifier … (“Property D”).
4.The Applicant is restrained from entering the Property D without the prior written consent of the Respondent.
5.The Respondent pay to the Applicant way of spouse maintenance the sum of $1,522 per week, with such sum to be paid into the Applicant’s bank account, being Account name: “Ms Nafus” BSB …, Account Number …70 or as she otherwise directs in writing, with the first payment to be made within two business days of the making of these orders.
6.The Respondent pay as and when it falls due the cost of repairing the retaining wall proximate to the Property B (pro-rated as between the Property B and the neighbours).
7.The Applicant have exclusive use of the Motor Vehicle 1 with NSW Registration ….
8.Within 14 business days of the date of these orders, the Respondent pay or cause to be paid to the Applicant’s solicitor’s trust account the sum of $250,000.00 on account of the Applicant’s legal fees and disbursements incurred or to be incurred in the conduct of these proceedings, such account being “Scarf Family Law Law Practice Trust Account” Account BSB …, Account Number …76.
9.All other interim applications are otherwise dismissed.
THE COURT NOTES THAT:
A.The ultimate characterisation and treatment of the payment in Order 8 will be a matter for the trial judge.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nafus & Valdon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders made in an interlocutory application between the parties in this case.
BACKGROUND
The applicant de facto wife, Ms Nafus (“the Applicant”) is 48 years old and is currently unemployed. The respondent de facto husband, Mr Valdon (“the Respondent”) is 56 years old and describes himself as a professional. The parties were in a de facto relationship between October 2005 and June or July 2020. There were no children born to their de facto relationship. The substantive proceedings between the parties revolve around alteration of their property interests. The present application is brought by the Applicant. The precise order that she seeks is reproduced in Schedule A to these reasons. In short, however, she seeks an order for spouse maintenance and occupation of a property in which she currently resides, an order for interim costs, and a series of injunctions. The Respondent opposes the orders sought.
A number of concessions were quite properly made by senior counsel for the Respondent. The Respondent did not contest the order for the Applicant to have exclusive occupation of the property that she currently occupied. He did not cavil with any order that prevented him from entering this property without the Applicant’s written consent. He neither sought, nor opposed, Order 5 which gave him exclusive occupancy of the property that he lives in. The Respondent acknowledged that he had the capacity to make any of the payments sought by the Applicant. Indeed, his Financial Statement filed 9 November 2021 discloses a surplus of income over expenses of about $10,000 weekly. The Respondent also acknowledged that the Applicant could retain the Motor Vehicle 1 driven by the Applicant, but owned by him. On his behalf, the concession was made that his net assets at cohabitation with the Applicant was estimated to be $1,000,000. The current estimated value of the real estate portfolio is estimated to be $20 million. Moreover, the Respondent’s own evidence estimates the value of his shareholdings to be more than $178 million before tax. The Respondent’s own proposal is that the Applicant retains the property that she currently occupies, and which has a current market value of $4.5 million.
It is important to acknowledge that interim orders are sought. The evidence before the Court could not be tested. Each party makes allegations against the other about matters pertinent to the issues before the Court. No definitive findings can be made. The Court must form an impression based on the probative evidence before it, most of which is in the affidavits of the parties, and the documentary evidence they advance in their case. At a final hearing it is possible that findings will be made contrary to the impressions formed in the present context. Having regard to the size of the pool of assets, including assets already held by the Applicant, it is this Court’s view that none of the orders it makes are irreversible in the sense that payments cannot be taken into account as part of a final alteration of property interests.
THE EVIDENCE BEFORE THE COURT
The Applicant relied on the following documents in support of her case:
(a)Initiating Application filed 9 October 2020;
(b)Her Affidavit filed 9 October 2020, and corresponding exhibits;
(c)Amended Initiating Application filed 13 August 2021;
(d)Her consolidated Affidavit filed 17 September 2021, and corresponding exhibits;
(e)Application in a Proceeding filed 5 October 2021;
(f)Her Affidavit filed 5 October 2021;
(g)Her Updating Financial Statement filed 12 November 2021;
(h)Her Outline of Case Document filed 12 November 2021; and
(i)Her Minute of Order for Interim Hearing.
The Respondent relied on the following documents in support of his case:
(a)Response to Initiating Application filed 16 November 2020;
(b)Response to an Application in a Proceeding filed 9 November 2021;
(c)His Affidavit filed 9 November 2021;
(d)His Financial Statement filed 9 November 2021; and
(e)His Outline of Case Document filed 12 November 2021.
THE APPLICABLE LAW
Spousal maintenance
Spousal maintenance is governed by s 72 of the Family Law Act 1975 (Cth) (“the Act”). In Hall v Hall (2016) 257 CLR 490 at [3], the High Court described the “gateway” requirement for the consideration of a spousal maintenance application pursuant to s 74 of the Act. The gateway requirement is set out in s 72(1) of the Act, which provides:
72 Right of spouse to maintenance
(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason.
having regard to any relevant matter referred to in subsection 75(2).
As noted by the High Court in Hall v Hall, the Applicant carries the onus of satisfying the Court on the balance of probabilities that she has satisfied the gateway requirement of s 72(1) of the Act.
In Saxena v Saxena (2006) FLC 93-268, Coleman J explained at [39] that in determining whether to make an order for spousal maintenance, the Court should follow a four-step process, as follows:
(1)Can the applicant support themselves adequately?
(2)If not, what are the applicant’s reasonable needs?
(3)What capacity does the respondent have to meet those needs?
(4)What order is reasonable, having regard to s 75(2) of the Act?
Interim costs
The Applicant seeks an order for interim costs in the amount of $250,000.
The Full Court recently considered the making of orders for lump sum costs in Salvage & Fosse (2020) FLC 93-966, where the majority stated:
7. The introduction of s 79 of the Act, followed by s 90SM and, the acceptance of the making of appropriate orders dealing with only part of the property in advance of the final hearing, saw these sections relied upon to support orders for the transfer of funds for the purpose of paying legal fees to be incurred in those proceedings. Where there are assets which will be divided between the parties but which are held by only one party, this is an obvious and principled approach because, it permits each party to deal with the property that he or she will receive as a result of the division of property as they see fit, including for the payment of legal fees. It recognises the inherent unfairness of a party being able to marshal all of the assets to prosecute their claim and leaving the other party to fend for themselves without that benefit.
8. … s 117 of the Act empowers the Court to make such orders as to costs and is of sufficient width to empower the making of the order sought by the respondent in the proceedings.
9. Such a concession merely accepts a now long-held and unimpeachable jurisprudence.
10. …
11. The considerations that apply to applications under s 79 and s 90SM and, s 117 of the Act, are quite different and some care must be taken in identifying the relevant principles that apply to each (Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 ("Strahan") at [84]).
12. Importantly, in property settlement proceedings it may be sufficient for an applicant to establish that he or she would be likely to receive a property settlement that would be "sufficient to cover the advance" (Zschokke and Zschokke (1996) FLC 92-693 ("Zschokke") at 83,216). There, the Full Court of the Family Court of Australia went on to adopt the following passage from Harris and Harris (1993) FLC 92-378 at 79,930:
…[T]he Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently necessary to do so…’
13. The power to make orders in the exercise of the property power may be exercised by a series of orders, with the crucial issue being whether or not the power to make orders for the settlement of property has been exhausted or spent. Unless it has, further orders may be made with respect to property the subject of earlier orders (Gabel & Yardley (2008) FLC 93-386 at [69] and [126]). In other words, that earlier order may be taken into account or, indeed reversed, prior to or as part of the final exercise of the s 79 (or s 90SM) power without resort to s 79A of the Act and its equivalents or, an appeal. However, the notion of orders being "reversed or adjusted" does not easily apply to costs orders made in the exercise of the costs power, especially if the applicant fails. The very nature of a litigation funding order is that the funds will be spent on the costs of the proceedings, which may or may not be successful. There is a real risk that the funds can never be recovered or otherwise taken into account.
14. The critical question therefore is whether the applicant has "any real prospects of obtaining justice unless the order sought is made" (Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consideration of the strength of the applicant's case and the effect of the order upon the respondent.
15. It would not be just, for example, for the respondent to have to pay the legal expenses of the applicant, where the case to be taken was weak, fanciful or misguided or where the effect on the respondent of such an order would work an injustice. We do not consider it helpful, however, for there to be a need to identify the applicant's case as strong, persuasive or such like to justify an order. That invites a descent into semantics and an artificial characterisation of the strength of the proposed proceedings. The consideration should be whether the case to be raised by the applicant is sufficient, in all of the circumstances, as to its nature and prospects, to justify an interim order for costs. This conclusion accords with Zschokke at FLC 83,217, where the Full Court said:
… We agree that, as was submitted by [c]ounsel for the wife, the requirement of justice (which was expressly drawn to attention by the Full Court in Hogan and also implied by Brennan J in Breen) must remain a "basic" condition in the making of an order of the type in question under s 117(2).
(See also Strahan at [124]).
16. In this matter, the respondent faced the task of persuading not only the primary judge that she had a claim to set aside the Cohabitation Agreement of sufficient merit to justify an interim costs order but also that her subsequent property application was of sufficient merit and value to justify that course. There would be no point in providing funding to pursue a case to set aside the Cohabitation Agreement, unless the Court was satisfied that the respondent would be likely to receive a property settlement of such value as to justify that course.
17. The position is somewhat analogous to an application for leave to commence property proceedings out of time pursuant to s 44(3) (or s 44(6)) of the Act. In such proceedings, the Court looks at, amongst other things, the likely costs of the proceedings and the probable range of results. If the costs of the proceedings do not justify the likely return and would not have the effect of alleviating the applicant's hardship, then leave will not be granted (Gadzen & Simkin (2018) FLC 93-871 at [35]-[37]).
Thus, in order to warrant the making of an order pursuant to the Act, the Applicant must establish the following:
·That she would not have any real prospects of obtaining justice unless an order is made;
·That her case for property settlement is sufficient, in all the circumstances, as to its nature and prospects, to justify the making of the order; and
·That the costs sought are proportionate to the probable range of results.
The Applicant sought a series of injunctions ostensibly to preserve the pool of assets and resources. In Tsiang & Wu and Ors (2019) FLC 93-911 the Full Court stated:
20. The grant of an injunction is discretionary and the basis on which such an order is made is well established. A purpose, as in this case, is to preserve the status quo pending resolution of the controversy. An applicant must demonstrate first that there is a serious issue to be tried. While that statement has been the subject of various iterations, in essence it requires the demonstration of an arguable case or as was said in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65], the applicant must “show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”.
21. Next the applicant must demonstrate that the balance of convenience favours making the order sought. As part of this, the applicant must show that there is a “danger” or risk of dissipation of or dealings with assets which will frustrate any judgment in favour of the applicant.
22. In Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, Gleeson CJ said after discussing the discretionary nature of the remedy at 321–325:
… as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant’s absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied.
...
It is not difficult to imagine situations in which justice and equity would require the granting of an injunction to prevent dissipation of assets pending the hearing of an action even though the risk of such dissipation may be assessed as being somewhat less probable than not.
(Footnotes omitted)
Injunctions for personal protection
The Applicant also sought an injunction for her personal protection. The Court’s power in this regard is found in s 114(1) of the Act.
In Hartley & Hartley [2021] FedCFamC1F 178, McClelland DCJ restated the relevant principles for the granting of injunctions at [11]-[14]:
11. The Court is empowered to grant injunctive relief in the nature of that sought by the parties pursuant to s 68B of the Act which relevantly empowers the Court to ‘grant such injunction as it considers appropriate for the welfare of the child’ including, pursuant to s 68B(2), by interlocutory order ‘in any case in which it appears to the court to be just or convenient to do so.’
12. At the outset it should be noted that the granting of an injunction restraining the exercise of what otherwise would be a person’s inherent rights and freedoms is a serious matter. The breach of such injunction potentially exposes a person to an action for contempt of Court. As noted by the plurality in Cardile v LED Builders Pty Limited [1999] HCA 18 (‘Cardile’) at [31]:
…that the court may grant an injunction in all cases in which it appears to the court to be just and convenient to do so – does not confer an unlimited power to grant injunctive relief. Regard must still be had to the existence of a legal or equitable right which the injunction protects against invasion or threatened invasion, or other unconscientious conduct or exercise of legal or equitable rights.
(references omitted)
13. 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’.1
14. In the context of family law, in Sieling and Sieling (1979) FLC 90-627 at 78 264, 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.
See Giumelli v Giumelli (1999) 196 CLR 101 at [10] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ referred to in Norton & Locke (2013) 284 FLR 51 at [72].
The comments of the McClelland DCJ apply as much to an injunction under s 114, as under s 68B.
In Oates & Crest (2008) FLC 93-365 at [76] the Full Court confirmed that an injunction restraining a citizen from passing over a public street whether they need to do so or not is a substantial curtailment of that citizen’s right of freedom of movement. It is a particularly serious matter for the Court to make an order that restrains the freedom of movement of a person. Such an order is coercive in nature and should only be made where there is a proper basis for doing so.
SPOUSAL MAINTENANCE
The Court finds that the Applicant is unable to support herself adequately. The evidence is clear—she suffers from depression and anxiety as well as some mobility issues associated with a knee condition. Whether her depression and anxiety are related to the separation and the current litigation is irrelevant. She has seen a doctor and is being treated by a psychologist. She is on a mental health care plan. She takes appropriate medication. The Applicant has an established history of working as a professional and earning a substantial income. She has not worked in that capacity since 2015. It is work for which she seems best qualified. Notwithstanding that, she has worked in sales earning such money as she can earn. The evidence of her applications for employment, regrettably without success, was comprehensive. The Court rejects the submission made on the Respondent’s behalf that she should have applied for work, in effect, for which she would be over-qualified. His criticism of the Applicant’s desire to retrain as a worker in the allied health industry is difficult to understand when viewed in this light. The Court is satisfied that the Applicant is working to her capacity, but she is unable to support herself adequately. She is in need of spousal maintenance.
The quantification of the Applicant’s needs is, however, problematic. She seeks an order for $3,000 weekly even though her evidence, in the form of her Financial Statement, only demonstrates a need for $1,522 weekly. Despite her senior counsel’s valiant efforts to support by reference to the evidence the Applicant’s claim for $3,000 per week, the reality is that her claim could not exceed $1,522 weekly.
Notwithstanding the criticism on behalf of the Respondent about some of her expenditure, the Court finds nothing unreasonable or excessive about the same. Moreover, the fact that the Applicant has $16,000 in her bank account, and has jewellery which she values at $50,000, or may have unspecified financial resources available to her (such as the generosity of a friend) does not mean that she should use liquid assets, or relatively liquid assets, or the generosity of friends to meet her needs if the Respondent’s obligation to pay is established under law (Mitchell and Mitchell (1995) FLC 92-601 at 528; Hall v Hall (2016) 257 CLR 490 at [54]). For the same reason, the fact that the Applicant has secured litigation funding that covers personal expenses does not change the Court’s assessment of her need.
The Respondent’s capacity to pay maintenance is conceded on his behalf.
An order in the sum of $1,522 weekly is both proper and reasonable in all the circumstances, having regard to the evidence.
The Applicant also sought an order that the Respondent pay as and when they fall due motor vehicle expenses, council rates, and building and contents insurance for the property that she occupies, as well as the cost of repairing a retaining wall proximate to that property.
No order can be made in respect of the building and contents insurance, council rates, and motor vehicle insurance, registration or maintenance costs, as these weekly expenses were included in the claim for spousal maintenance. This part of her claim cannot be allowed.
The cost of repairing the retaining wall is estimated in the evidence to be about $230,000 and the Respondent himself concedes that once constructed the value of this property will increase by $500,000. Whether or not the Applicant is technically, or legally, required to make a contribution towards the costs of the retaining wall either at present or in future, the fact is that it will increase the value of the property quite disproportionately to the amount paid, and thus enlarge the pool of assets available for distribution between the parties.
The Respondent contends that the Applicant can raise this money herself. Insofar as he contends that she has equity in the property against which she could borrow, he is correct. The fact that the Court has found her to be in need of interim spousal maintenance clearly indicates, however, that she would not have the capacity to service such a loan. The orders sought by the Applicant in respect of the cost of repairing the retaining wall is thus a proper and appropriate lump sum spousal maintenance order. As and when such payment is due, the Respondent is required to meet the same.
INTERIM COSTS
It is clear on the evidence that the Applicant needs assistance with the payment of her legal fees. The projected amount is by no means unreasonable, particularly having regard to the perceived formidable valuation issues that will arise in this case because of the nature of the Respondent’s shareholdings. The amount remaining available to her pursuant to the litigation lending facility will not be enough. The amount proposed is by no means disproportionate to the likely litigation costs, or even the likely outcome. She could not obtain justice without proper funding of her litigation.
The Respondent’s main argument against the making of the interim costs order is, in effect, that the final outcome of the case will be the Applicant retaining the property that she owns, and thus the final application of the Respondent would be defeated by the making of the order.
The Court does not accept this submission. Even if, as senior counsel for the Respondent contends, the Respondent’s contributions are found to vastly exceed that of the Applicant, depending on the size of the net asset pool, an outcome that leaves the Applicant just with the home in which she resides is not reasonably foreseeable. As senior counsel for the Applicant submitted, even if the Court finds the net asset pool to be as little as $80 million, and even if the home has a value of $5 million, her contribution after a 15 year period of cohabitation would have to be assessed at more than 6.25 per cent for the Respondent’s application to be defeated, as he submits. It bears remembering that if the Applicant retains the home at $5 million, and the benefit of an interim costs order of $250,000, this represents a mere 6.56 per cent of an $80 million pool. Her case for property settlement is sufficient, in all the circumstances, as to its nature and prospects, to justify the making of the order
There was also a suggestion in the Respondent’s case that the Applicant could satisfactorily fund the litigation using the equity in the property that she owns. The Court does not accept this. It must be remembered that the principle that underlies the jurisprudence about interim financial provision within the family law jurisdiction is the imbalance of power between litigating parties: Blueseas Investments Pty Ltd v Mitchell (1999) FLC 92-856 at [54]. The law aims to create a level playing field between the litigants, and to minimise abuses of power and process when the playing field is not level. Thus, on the facts of this case, to suggest that the Applicant should liquidate or further encumber her assets to fund her claim against the Respondent is akin to an abuse of the power which the Respondent inherently possesses in this case because of the enormous disparity in the wealth that is controlled by him.
The Court notes that whether the Applicant’s application for interim costs is characterised as an order under s 117 of the Act, or an order under s 90SM, the same conclusion would be reached.
The Court will make an order in terms of Order 6 proposed by the Applicant. The alternative orders proposed at Orders 7–10 do not need to be made. The ultimate characterisation and treatment of this order will be a matter for the trial judge.
INJUNCTIONS TO PRESERVE PROPERTY
In the Applicant’s proposed Orders 11 and 12, she seeks a number of injunctions by way of, in effect, property preservation orders. Order 11 deals with real estate, and Order 12 deals with shareholdings.
The Court accepts that it is not difficult to imagine situations in which justice and equity would require the granting of an injunction to prevent dissipation of assets pending the hearing of an action even though the risk of such dissipation may be assessed as being somewhat less probable than not. The restraints proposed are not onerous. Nonetheless, there needs to be some evidence to support the granting of an injunction.
There appears to be little or no complaint about disclosure in this case, even though the financial circumstances of the Respondent appear complex.
The Applicant referred to a number of transactions evident from the bank statements produced by the Respondent, including the purchase of valuable real estate. It is not clear to the Court how this demonstrates the need for an injunction. Indeed, the major transaction in question seems to have converted cash to real estate.
When the Applicant’s evidence is closely examined, it is simply not possible to discern any risk that she is seeking to manage by way of the injunctive orders sought. The pool of assets available for distribution is significant, but the Respondent’s submission that he has made a greater financial contribution towards the acquisition and improvement of those assets is not unreasonable. It is possible, however, that both the Respondent and his legal advisers need to revisit some of the percentages that were mentioned in submissions. One can well understand why those representing the Applicant would describe the Respondent’s claim as an ambit claim. However, an ambit claim does not justify the making of an injunction. There is no evidence to support Orders 11 and 12 sought by the Applicant. In any event, the Court accepts the submissions made by senior counsel for the Respondent, about the ambiguity in Order 12.
INJUNCTION FOR PERSONAL PROTECTION
The Applicant is anxious and depressed. She is fearful of the Respondent, but her evidence did not go so far as to suggest fear for her physical safety. She has experienced the Respondent to be controlling. Her main evidence in this regard focused around what she described as the Respondent’s remote monitoring of the home in which she lives, and a Notice to Admit Facts which she found very intrusive, and which created the impression that he had been closely monitoring her movements. The Respondent denies any allegation made against him and specifically that he has been monitoring the Applicant’s movements. His explanations are plausible. The Applicant’s concern that the Respondent had placed her under surveillance is not borne out by the evidence.
Her experience of the Respondent has no doubt been exacerbated by the current proceedings and his strident opposition to, for example, the spouse maintenance order. As mentioned in a previous paragraph, it is understandable that she would label the Respondent’s claim to alteration of property interests as an ambit claim. This probably exacerbates her experience of the Respondent as controlling. That does not justify, of course, the Applicant making her own ambit claims such as for injunctions which are unsupported by the evidence.
The order that the Applicant seeks is a very broad one, especially in the context of the Respondent living in the vicinity of the Applicant, and the Respondent’s brother purchasing the property adjoining that occupied by the Applicant. There is no evidence to suggest that the Respondent purchased property nearby the Applicant, or that the Respondent’s brother purchased the adjoining property either with the direct or indirect intention of causing the Applicant any anxiety, let alone fear.
In terms of the Applicant’s physical safety, there is an absence of evidence of the Respondent engaging in threatening, intimidatory, or other inappropriate conduct in respect to the Applicant in the period subsequent to the parties’ separation.
The injunction sought by the Applicant is one that this Court considers was contemplated by the Full Court in Oates & Crest [2008] FamCAFC 29. In other words, the order sought by the Applicant is coercive in nature and should only be made where there is a proper basis for doing so.
Whilst the Court both accepts and understands why the Applicant would experience the Respondent to be controlling, there is insufficient evidence to warrant the making of the order that she proposes that Order 13 of her minute of order sought. The practical effect of her proposed injunction would have been to prevent the Respondent from ever visiting his brother, or ever running at the local beach. The Respondent would probably be wise to keep as far away from the Applicant is possible given the concerns she has raised. State domestic violence laws may well require a much lower threshold.
The order for the personal injunction cannot be granted.
ORDERS PROPOSED BY THE RESPONDENT
The Respondent quite properly did not press Order 1 for the return of the motor vehicle driven by the Applicant and conceded that it can remain in her possession.
The issue of payment of maintenance costs of the vehicle has been dealt with in the order for spousal maintenance.
CONCLUSION
All interim applications before the Court on 16 November 2021 are otherwise dismissed.
When these set reasons for judgment are delivered, and the orders are made, the Court will raise with the parties the inclusion of this matter in the Major Complex Financial Proceedings list. This matter contains a very large property pool and some complex valuation issues may reasonably be anticipated. The prospect of further interim applications also cannot be ruled out.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 15 December 2021
SCHEDULE A
MINUTE OF ORDER SOUGHT BY APPLICANT DE FACTO WIFE – MS NAFUS
1. “In these Orders, the following definitions apply:
1.1“Property F” means the property at F Street, Suburb G in the State of New South Wales being the whole of the land contained in Folio Identifier ….
1.2"Property B" means the property situate at B Street, Suburb C in the State of New South Wales being the whole of the land contained within Folio Identifier ….
1.3“H Properties” means the properties at 1H Street and 2H Street in Suburb J in the State of New South Wales being respectively the whole of the land contained in Folio Identifiers … and ….
1.4“Property K” means the property at K Street, Suburb E in the State of New South Wales being the whole of the land contained in Folio Identifier ….
1.5“Property D” means the property situate at D Street, Suburb E in the State of New South Wales being the whole of the land contained in Folio Identifier ….
1.6“Applicant’s Car” means the Motor Vehicle 1 with NSW Registration ….
1.7“Australian shares” means the shares in which the Respondent has a beneficial interest in the following Australian companies:
1.7.1 L1 Pty Ltd ACN …
1.7.2 L2 Pty Ltd ACN …
1.7.3 L3 Pty Ltd ACN …
1.7.4 L4 Pty Ltd ACN …
1.7.5 L5 Pty Ltd ACN …
1.7.6 L6 Pty Ltd ACN …
1.7.7 M Pty Ltd ACN …
1.7.8 N Pty Ltd ACN …
1.7.9 P1 Pty Ltd ACN …
1.7.10 P2 Pty Ltd ACN …
1.7.11 R1 Pty Ltd ACN …
1.7.12 R2 Pty Ltd ACN …
1.7.13 R3 Pty Ltd ACN …
1.7.14 R4 Pty Ltd ACN …
1.7.15 O Pty Ltd ACN …
1.7.16 Q Pty Ltd ACN …
1.7.17 S Pty Ltd ACN …
1.7.18 T Pty Ltd ACN …
1.7.19 U Pty Ltd ACN …
1.7.20 V Pty Ltd ACN …
Spouse maintenance and occupation of properties
Until further order:
1.The Respondent pay to the Applicant way of spouse maintenance the sum of three thousand dollars ($3,000) per week and that such sum to be paid into the Applicant’s bank account, being Account name: “Ms Nafus” BSB …, Account Number …70 or as she otherwise directs in writing, with the first payment to be made within two business days of the making of these Orders.
2.The Respondent pay as and when they fall due:
2.1.motor vehicle registration, Compulsory Third Party insurance, comprehensive car insurance and servicing costs as scheduled by the manufacturer for Applicant’s Car;
2.2.Building and contents insurance for the Property B;
2.3.Council rates for the Property B;
2.4.The cost of repairing the retaining wall proximate to the Property B (pro-rated as between the Property B and the neighbours).
3. The Applicant shall have exclusive use of the Applicant’s Car.
4.The Applicant shall have exclusive occupation of the Property B and the Respondent be restrained from:
4.1. entering the Property B without the prior written consent of the Applicant;
5.The Respondent shall have exclusive occupation of the Property D and the Applicant shall be restrained from: entering the Property D without the prior written consent of the Respondent.
Interim costs
6.That within 14 business days of the making of these Orders, the Respondent shall pay or cause to be paid to the Applicant’s solicitor’s trust account the sum of two hundred and fifty thousand ($250,000.00) on account of the Applicant’s legal fees and disbursements incurred or to be incurred in the conduct of these proceedings, such account being “Scarf Family Law Law Practice Trust Account” Account BSB …, Account Number …76.
7.That in the alternative to Order 6, and pursuant to s 117 Family Law Act 1975 (Cth), from the date of these Orders and within 7 days after payment by or on behalf of the Respondent of any monies in payment of accounts already paid up to and from the date of this Order rendered by lawyers for the Respondent, the Respondent pay or cause to be paid the same amount of money into the trust account for the solicitors for the Applicant.
8.That the sums paid or caused to be paid by the Respondent to the solicitors for the Applicant pursuant to the preceding Order be applied by the lawyers for the Applicant in payment of the costs and disbursements incurred or to be incurred by the Applicant in the conduct of these proceedings.
9.That within 24 hours after the payment by or on behalf of the Respondent of any money referred to in Order 7, the Respondent shall provide to the Applicant’s solicitor a memorandum stating the amount or amounts so paid to his lawyers.
10.That the Respondent instructs his lawyers that the sums paid or caused to be paid by the Respondent to the lawyers for the Respondent pursuant to the preceding orders be applied by the lawyers for the Respondent in payment of the costs and disbursements incurred or to be incurred by the Respondent in the conduct of these proceedings, including but not limited to the reasonable costs and disbursements:
10.1.Rendered by solicitors and counsel for the Respondent;
10.2.Rendered by accountants engaged by the Respondent or the solicitors for the Respondent to value the interests of the Respondent in any business, company, trust or entity; or
10.3.Rendered by valuers engaged by the Respondent or the solicitors for the Respondent to report on and value the real and personal property relevant in these proceedings.
Injunctions
Until further order:
11.Each party be restrained from selling or further encumbering any parcel of real property owned by them other than with the prior written consent of the other party, such property including:
11.1. The Property F;
11.2. The Property B;
11.3. Either or both of the H Properties;
11.4. The Property K; and
11.5. The Property D.
12.If the Respondent intends to divest himself of any shareholding in any public or private company, whether such company is registered in Australia or overseas, he must:
12.1.Give the Applicant reasonable notice in advance of such divestment including the particulars of the sale price, and the proposed disposition of the sale proceeds;
12.2.So far as reasonably practicable, ensure that all net sale proceeds are retained in an Australian financial institution; and
12.3.Fully account after the transaction of the disposition of the net sale proceeds.
12.4.That the Respondent pays the Applicant’s costs of and incidental to these proceedings
13.The Respondent Husband is restrained by way of injunction from coming within 500 metres of the Applicant Wife’s residence being a radius of W Street, Suburb X in the north to Y Street, Suburb C in the South and Z Street, Suburb C in the West.
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