NARANG & NARANG

[2019] FamCA 813

FAMILY COURT OF AUSTRALIA

NARANG & NARANG [2019] FamCA 813

FAMILY LAW – PROPERTY – Interim property – Where the wife seeks interim property distribution – Where the wife seeks that an investment property be sold – Where the wife seeks to be appointed trustee for the management of the investment property – Where neither party seeks final orders to retain the investment property – Where wife seeks the sale of business vehicles – Where the parties’ financial circumstances are extremely strained – Orders made as sought by the wife with the exception of orders in relation to business vehicles.

Family Law Act 1975 (Cth) ss 75(2), 79, 80, 117

Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Poletti & Poletti (Unreported, Family Court of Australia, Nygh J, 2 March 1990)
Stanford v Stanford [2012] HCA 52
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Wilson & Wilson (1989) FLC 92-033
Zschokke & Zschokke (1996) FLC 92-693

APPLICANT: Ms Narang

RESPONDENT: Mr Narang

FILE NUMBER: PAC 2597 of 2019

DATE DELIVERED: 7 November 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 September 2019, 31 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Apelbaum

SOLICITOR FOR THE APPLICANT: Legal One Services

COUNSEL FOR THE RESPONDENT: Mr Livingston

SOLICITOR FOR THE RESPONDENT: ABJ Stevens Lawyers

Pending further Order

1. That the wife be permitted to provide a copy of these orders to the ANZ bank.

2. That the wife be appointed as trustee for the management of the Suburb B property including:

   (a)   collection of the rental income;

   (b)  payment of the Suburb B mortgage using rental income;

   (c)  payment of expenses associated with the Suburb B property using rental income;

   (d)  management of the Suburb B property.

3. That nothing in paragraph 2 of these orders shall be construed as making the wife personally liable for any expenses associated with the Suburb B property.

4. That the husband be restrained by an injunction from interfering in any way with the wife’s trusteeship and management of the Suburb B property as referred to in order 2 of these orders.

5. That the wife may provide a copy of these orders to the real estate agent associated with the Suburb B property.

6. That the parties forthwith do all things and sign all documents to arrange for the Suburb B property to be placed on the market for sale and for the purposes of sale:

   (a)   the wife shall be appointed the trustee with respect to the sale;

   (b)   the wife shall keep the husband updated with respect to the sale including providing information as soon as practicable in relation to the appointment of agent, sale method, any auction date, reserve price and purchaser;

   (c)   the wife shall be permitted to select a real estate agent and determine the method of sale, reserve price and conditions of sale upon consultation with the real estate agent;

   (d)  the wife shall be permitted to select a conveyancer;

   (e)  the wife shall only sell the property to a bone fide, arm’s-length purchaser for market value;

   (f)   the wife be permitted to sign all transfer registration papers for the purposes of effecting the sale of the property, and a copy of these orders may be provided to any government department or agency for the purposes of effecting the sale.

7. That upon settlement of the sale of the Suburb B property, the proceeds of sale shall be applied as follows:

   (a)   first, to pay all costs, commissions and expenses of the sale including agents fees, advertising costs and solicitor’s conveyancing costs;

   (b)  second, to discharge all the mortgages encumbering the Suburb B property;

   (c)  third, to pay any capital gains tax associated with the sale of the Suburb B property;

   (d)  fourth, to pay to the wife the sum of $40,000 less any funds paid to the wife from the sale of the Motor Vehicle A, such sum to be characterised by the trial judge;

   (e)  fifth, to apply to proceeds to repayment of the mortgages secured against the Suburb C property.

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 Narang & Narang 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 PARRAMATTA

FILE NUMBER: PAC 2597 of 2019

Ms Narang

Applicant

And

Mr Narang

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties are the parents of two young children aged six and two (“the children”). They are engaged in proceedings concerning the children’s parenting arrangements and distribution of their property following the breakdown of their 13 year marriage in March 2018.

2. At an interim hearing on 16 September 2019 parenting orders were made with the consent of the parties which provided for the children to live with the wife and spend no time with the husband pending further interim hearing and that the husband undergo urinalysis and hair testing.  These orders were made in light of undisputed evidence concerning extensive drug use by the husband and the wife’s allegations that the husband perpetrated serious family violence towards her. There is a current Apprehended Domestic Violence Order (“ADVO”) protecting the wife and children from the husband which remains in force until June 2020.

3. As to property, orders were made with the consent of the parties in relation to the sale of a particular motor vehicle. The remaining interim property dispute is the subject of this judgment.

4. The wife seeks the continuation of injunctions restraining the husband from disposing of real estate and vehicles, the sale of an investment property and business vehicles and an interim payment to her upon sale. She proposes orders that the balance of the sale proceeds be used to pay mortgage arrears and to reduce loans secured by a mortgage over the family home, that she continue to have exclusive occupation of the family home and other ancillary orders.

5. The husband opposes the wife’s proposal for the sale of the investment property and business vehicles. Although it appears that he may have sought one further interim order himself (in addition to those previously made by a Registrar) no submissions were directed to this matter and the interim hearing related solely to the orders sought by the wife.

Background

1. The husband, who is 37, and the wife, who is 38, were married and began living together in 2004.

2. Although there is a dispute between the parties in relation to the assets that they each owned when the relationship began, there is no dispute that just prior to their marriage they purchased a property which became their family home and subsequently an investment property (“the investment property”) which was registered in the husband’s sole name.

3. At the time of the parties’ marriage the wife was working in a customer service role and her salary was a little more than that of the husband who was also an employee.

4. The wife continued to be employed in a similar capacity for some years and her salary over time increased.

5. Both parties contributed to the payment of the mortgage over their home as well as the various household expenses and outgoings.

6. In about 2007, the husband began working as a tradesman and at some time which is in dispute between the parties they purchased a vehicle for the purpose of the husband’s business.

7. The husband began doing work as a tradesman for a large enterprise from around 2009 and over the years it appears that this business was lucrative and enabled the parties to enjoy a comfortable financial position.

8. From around 2010, the wife also obtained a new position and was by then earning around $90,000 per annum.

9. The parties’ first child was born in 2013. The wife was engaged in caring for the child and home duties until about October 2014 when she began working on a full time basis and contributing to the family’s finances though there is a dispute between the parties about the period over which she worked at this time.

10. In December 2014 the parties purchased a second property to which they moved and this became the family home (“the family home”).

11. A significant loan was obtained for the purchase of the family home which was secured by a mortgage over this property and the investment property.

12. After the family moved to the family home, the investment property was leased for $595 a week.

13. The husband’s business expanded quite rapidly and as noted previously became quite lucrative. The husband does not appear to dispute the wife’s evidence that he earned approximately $1 million per annum gross from this business and employed a number of casual sub-contractors.

14. In about January 2015 the wife ceased her employment and began playing a role in the husband’s business. There is a dispute between the parties about the extent of the wife’s role though both agree that she was not paid in relation to the work that she undertook at the business.

15. Prior to the birth of the first child the husband used cocaine on a couple of occasions. From 2013 to 2016 he deposes to using cocaine “occasionally and recreationally”.

16. The husband deposes to beginning to abuse cocaine from late 2016 using it more regularly over time until he did so on a few occasions per week. He deposes that from late 2016 “things did get pretty bad” and admits in his affidavit that he “had a drug problem at that time.”

17. The parties separated in March 2018 after the wife attended upon police for the purposes of reporting a severe and longstanding history of the husband’s violence.

18. In this regard, the wife sets out in significant detail a long history of physical violence perpetrated against her by the husband from around 2012 when she was pregnant with the parties’ first child. She deposes to occasions of aggressive and controlling behaviour by the husband following the birth of the first child for around two years and an ongoing course of violence from late 2016 at around the time that the husband agrees that he was abusing cocaine. She sets out numerous incidents in which the husband damaged property at the home and of his anger and intimidating conduct escalating throughout the second pregnancy. She outlines many serious incidents including one in which the husband produced a knife and threatened to stab her in the presence of her two nieces.

19. The wife deposes to another occasion in February 2017 when the husband drove dangerously while drug affected and to occasions when the husband came home late after nights of drinking and taking drugs and pushed and “strangled” her including when she was in her late stages of pregnancy in 2017. She also deposes to the husband’s controlling behaviour including locking she and the oldest child in the bedroom, blaming the wife for “purposefully making me angry” and accusing her of being involved in other relationships.

20. The husband concedes, consistent with the wife’s case, that as he was abusing cocaine at the time of the second child’s birth (in 2017) he became angry, easily irritated and less patient and that his drug use also affected his work.

21. The wife deposes that despite promises to cease drug use the husband continued to use drugs and drink excessively in the home after the birth of the second child.

22. The wife deposes that in April 2017 on one occasion she and the two children stayed in a hotel for about a week, that the parties attended three sessions of marriage counselling but the husband did not wish to continue and that by June 2017 she had contacted police who attended the home and asked the husband to leave. The wife said she did not make a statement at the time and the husband was not charged.

23. The wife deposes to a number of incidents of extreme violence from mid-2017 culminating with the husband threatening her with an object she believed to be a gun which he kept at the house. Following this incident the wife fled the family home with the children but she subsequently returned and the parties separated with the husband moving out.

24. Following the final incident on 13 March 2018, a provisional ADVO was made against the husband. This ADVO was later confirmed by a court in June 2018 as a final order to protect the wife and children.

25. Although the husband deposes to ceasing cocaine use on New Year’s Eve 2018 and deposes to being “clean” for nine months, there is no dispute that he lost his significant work contract in March 2019. The wife says this was due to the husband’s negligence, unreliability, being affected by drugs at work and his inability to control his anger including in the workplace. The husband disputes the reason for the loss of contract and claims that it was due to many factors including mechanical problems with his trucks and the conduct of his employees.

26. Following the loss of the significant contract in March 2019, it appears common ground that the husband’s business effectively collapsed. As the wife has been engaged in caring for the children full time since the birth of the second child there has not been any financial support for the family since March 2019.

27. At the time of the interim hearing, the only assets of the parties were two particularly valuable cars one of which the parties agreed to sell, two other personal vehicles and some business vehicles, the investment property and the family home. The husband deposes to having no money in the bank and a credit card debt of around $47,000 in his name.

28. At the time of the interim hearing, the wife was unemployed and her only income is a Centrelink payment. She lives with the children at the family home. The husband lives with his parents.

29. The wife commenced property settlement proceedings in June 2019 by filing an Initiating Application in this Court. The final orders sought in her amended application would see her retain the family home where she and the children currently reside, the investment property sold and the parties otherwise be solely entitled to property in their possession.

30. The husband in his Response seeks final property orders that he retain the family home, the wife retain the investment property and that each party retain interest in all items in their possession. The husband seeks orders that the loans and mortgages over the two properties be discharged and liability be assigned as $200,000 to the wife and the balance to him.

31. On 21 August 2019 the matter first came before a Registrar. Orders were made with the consent of the parties that the husband be restrained by injunction from transferring or further encumbering the family home and the investment property, drawing more than $1,000 per week from his bank accounts other than in the ordinary course of business, or transferring or disposing of either of his vehicles. The consent orders also provide that the husband make loan repayments on the vehicles and mortgage, that the wife have exclusive occupation of the family home as well as orders in relation to parenting. These interim orders were in similar or identical terms to the interim orders sought by the husband in his Response with the exception of one order proposed by him restraining the wife from disclosing commercially sensitive information about the business.

32. At the interim hearing on 16 September 2019 the parties reached agreement as to parenting orders pending interim hearing. They also agreed to orders for the sale of the most valuable vehicle, a sports car, application of the proceeds to discharge any encumbrance on the vehicle, the broker’s fees and disbursements and the application of the balance in reduction of the parties’ joint mortgages. The other orders sought by the wife were opposed by the husband. The husband did not pursue his application in relation to his only outstanding interim order that the wife be restrained from disclosing commercially sensitive information.

33. Judgment was reserved at interim hearing on 16 September 2019 as to the remaining interim property issues in dispute.

34. On 8 October 2019 the wife received three Default Notices from the bank under cover of a letter from the bank’s lawyers as a result of being in default on three loan facilities secured over the family home. The total amount payable is $34,126.98. The Default Notices each provide that the amounts outstanding must be paid no later than 8 November 2019 and that if the outstanding amounts are not repaid then the bank may commence enforcement proceedings claiming the total amount owing and take such other action under the contract as it sees fit. The wife is concerned that there is a risk of foreclosure on the family home where she and children currently reside as the husband is no longer making the necessary mortgage repayments on that home despite deposing to these payments in his Financial Statement of 4 September 2019.

35. The wife filed a further Application in a Case on 25 October 2019 seeking to reopen the interim hearing to adduce further evidence as to her dire financial position and the urgency of her application. Leave was granted for the proceedings to be reopened in respect to the interim property proceedings and after hearing from the parties as to this issue judgment was subsequently reserved.

The Asset Pool

1. The asset pool comprises of the following major assets: the former family home with an asserted value by the wife of approximately $1,100,000 and a mortgage of approximately $800,000, the investment property with an approximate value of $800,000 and a mortgage of around $600,000, a sports car worth between $250,000 and $350,000 with a loan of approximately $210,000 and the wife’s superannuation of around $86,000.

2. Thus the value of the joint net assets available for distribution (taking the value of the sports car at its lowest anticipated value) is approximately $626,000.

3. The husband deposes to a number of significant liabilities in his Financial Statement including $47,050 in credit card debt and unpaid income tax of about $140,000. He also contends that he owes $85,000 on one car loan in excess of the value of that car.

4. In these circumstances it is contended on behalf of the wife that the net assets available for distribution may be as little as around $300,000.

The Interim Application

1. The wife seeks that the injunctions restraining the husband from disposing of real estate and vehicles and that she have exclusive occupation of the family home made by the Registrar on 21 August 2019 continue. She further seeks that she be appointed as trustee for sale of the investment property, and of various vehicles which had been used by the husband in connection with his business and that she be paid $40,000 from the sale proceeds. The wife had also sought an order with respect to the sale of the husband’s sports car but the parties reached agreement in relation to alternate orders at the interim hearing for that car to be sold. In addition to the payment to her of $40,000, the wife seeks orders that the balance of the sale proceeds from the investment property and business vehicles be applied to the various mortgage loan accounts in relation to the family home where she and the children live and other ancillary property orders.  

2. The husband opposes the wife’s application essentially on the basis that the orders are not necessary to protect the wife’s position in the litigation and if made would not allow him to make a living from his business.

The Law and Discussion

Payment to wife of $40,000

1. It was observed in Paris King Investments Pty Ltd v Rayhill[1] that there are a number of juridical bases for orders of the type sought.  The Full Court in Zschokke & Zschokke[2] were of the opinion that the decisions in Wilson & Wilson[3] and Poletti & Poletti[4] established that where there are pending proceedings under s 79 of the Family Law Act 1975 (Cth) (“the Act”) for property settlement, an order for funds for litigation expenses may be made pursuant to s 80(1)(h) or s 117(2).

   [1] [2006] NSWSC 578

   [2] (1996) FLC 92-693

   [3] (1989) FLC 92-033

   [4] (Unreported, Family Court of Australia, Nygh J, 2 March 1990)

1. In Strahan & Strahan (Interim Property Orders)[5] the Full Court said at 85,633:

   86.      Once the relevant source of jurisdiction for making an order is resolved then it could be assumed that what Brereton J in Paris King Investments described as “the necessary preconditions and relevant considerations” or as the Full Court in Zschokke described as the “matters” to be taken into account should be easy to identify. If the source of jurisdiction is s 117(2) of the Act then the court may make such order as it considers just provided there are justifying circumstances. If the order is sought under s 79 of the Act then the court may make such an order as it considers appropriate provided it is satisfied that it is just and equitable to make the order. If the order is sought under s 74 of the Act then the court may make such order as is proper.

   87. If the source of jurisdiction is s 79 of the Act, in Zschokke at 83,216 the Full Court said:

   If the order is to be made under s.80(1)(h), it would seem that regard should be had to the requirement in s.79 that the orders be just and equitable and this would require the Court to undertake at least some brief consideration of the matters in s79(4) including those referred to in s.75(2). If on a brief consideration of those matters, it seems likely to the Court that the party who is the applicant for the interim order for an advance of funds from the other party will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made (cf Wilson and Poletti).

   [5] (2011) FLC 93-466.

2. According to Strahan (supra) where the power is to be exercised pursuant to s 80(1)(h) a two-stage approach is to be taken to the hearing of an application. The Full Court said at [118]:

   … This is recognised by the fact that although the power under s 79 should ordinarily be exercised on a once only basis, “circumstances may arise before there can be a final hearing” where the power is exercised. Thus the first step is to resolve whether to exercise the power before a final hearing and if it is resolved to do so then the second step involves the exercise of that power.

3. So far as the first step is concerned, it is settled in Strahan (supra) that the applicant is not required to establish that there are compelling circumstances at the time for making an order for interim property settlement. The test in light of the High Court decision in Stanford v Stanford[6] is whether it is just and equitable to exercise the power in relation to an interim application. 

   [6] [2012] HCA 52.

4. It is important to note that as observed in the matter of Strahan (supra), any interim order “must be capable of variation or reversal without resort to s 79A of the Act or appeal”.

5. While it is the wife’s case that the payment of $40,000 that she seeks be characterised by the trial judge at a later stage, on the basis of written submissions on her behalf and oral argument I understand that the juridical base for this order is sections 79 and 80(1)(h) of the Act.

6. I am of the view that it is just and equitable to exercise the power under section 79 in this interim application for the following reasons. The only property in which the wife has a legal interest is the family home in which she and the children live and in her modest superannuation. The balance of the parties’ assets including the investment property, the sports car and the business assets are owned by the husband who also receives the only known income being the rent from the investment property of $595 per week. The wife is currently unemployed and relies on a government benefit giving her a total income of almost $690 per week while her total weekly expenses for she and her children are just over $1,400 per week. She receives no child support from the husband and is responsible alone for raising the parties’ two children who spend no time with the husband. There appears to be no dispute between the parties that the wife has made significant financial and non-financial contributions including significant contributions as a homemaker and parent during and after separation.

7. In these circumstances I am easily satisfied that it is just and equitable to exercise the relevant power.

8. Having determined that the jurisdiction under s 79 should be exercised, I am required to undertake a consideration of the matters in s 79(4), including the s 75(2) matters. However, in Strahan (supra) it was observed at [137] that:

   … consideration of such matters may be brief and if it is established that “it seems likely to the Court that … the applicant … will be likely receive (sic) by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”. …

9. As indicated, the property available for distribution is likely to be a modest ranging between around $300,000 and about $626,000. It is the wife’s contention that a just and equitable settlement would see her receive 80 per cent of the net assets by way of final property settlement. Although the husband’s contention as to his final percentage entitlement is unclear, the wife’s application was not opposed by him on the basis that the $40,000 sought by her would exceed her final percentage entitlement. It would appear that the orders he proposes would see the wife receive significantly more than this amount.

10. As previously indicated, it is not in dispute between the parties that the wife has made significant financial and non-financial contributions to the parties’ property and to the welfare of the family including significant contributions as a homemaker and parent. In addition, the children who are very young live with her and do not spend any time with the husband. It is likely that the wife will be responsible for the vast majority of the care and financial support of the children well into the future.

11. Even taking the husband’s case at its highest, although it is difficult to ascertain his intentions in this regard, it is likely that the wife’s share will exceed the modest sum she seeks by way of interim payment. The focus of the husband’s opposition to the orders sought did not relate so much to her contention that it would be just and equitable for her to receive $40,000 at this interim stage but was rather concerned with opposing the sale of the investment property and other assets and conditions of that sale such as the appointment of the wife as trustee. In these circumstances, I am satisfied that the order sought by the wife for the payment of $40,000 to her is appropriate.

Management and sale of the investment property

1. The wife seeks orders that she be appointed as trustee for the management of the investment property including collection of the rental income, payment of the loans secured by a mortgage over that property and the associated expenses. She also seeks an order that the husband be restrained by injunction from interfering in any way with her trusteeship and management of the investment property.

2. It is clear that it is the wife’s intention that she manage the investment property for a short period of time as she also seeks an order that the parties forthwith do all things required for that property to be placed on the market for sale and that she be appointed as trustee with respect to the sale (and associated orders). She further seeks orders that upon settlement of the sale of the investment property the proceeds be applied to meet the costs associated with the sale, to discharge all mortgages encumbering that property and in payment of capital gains tax, in payment to her of the $40,000 and in repayment of the mortgages secured against the family home.

3. The wife also seeks orders that she be at liberty to sell various vehicles owned by the husband which were previously used in connection with his business (and that she be appointed as trustee for sale in relation to the vehicles as well). Her proposed orders are that after payment of expenses and taxes associated with the sale and discharge of any loan or hire purchase agreement the funds be used in the same way as she proposes for the sale of the investment property, that is in discharge of any mortgage arrears and mortgage repayments associated with the two properties and as a source of funds to pay her the sum of $40,000. These orders are also opposed by the husband and are a matter to which I will return.

4. The wife seeks orders that the investment property be sold as this and the sale of the husband’s work vehicles are the only source of funds easily available to satisfy $40,000 payment. The parties currently have no source of income other than the rent from the investment property received by the husband which he does not share with the wife. They have been unable to afford the loan repayments in relation to the family home in which the wife and children live and are in peril of losing that home as the grace period for the repayment of the current arrears expires on 8 November 2019. If the arrears are not repaid by that date, the bank has advised that it may commence enforcement proceedings claiming the total amount owing and take such other action under the contract as it sees fit which could include foreclosure. The wife is also concerned that the husband has not been meeting the loan repayments on the investment property and similar risks may also exist in relation to that property.

5. If the investment property is sold as sought by the wife, it would appear that approximately $200,000 will be realised from the sale. This will enable the mortgage arrears to be repaid which will prevent possible foreclosure, the wife to receive the $40,000 payment and after the payment of various expenses associated with the sale it is likely there will be a sizable sum left to apply to the repayment of the loans secured by mortgages over the family home.

6. It is submitted on behalf of the wife that the sale of this property will achieve a number of appropriate objectives including that ensuring that she and children can remain in their home, relieving the parties of liabilities which they can ill afford including $1.4 million on four mortgage loans and reducing the current outgoings.

7. The husband submitted that given the investment property is less valuable than the family home, retaining the investment property is the greatest chance of the wife in the long term having the financial capacity to have a home for the children.

8. He also submitted that the only difficulty with the sale of the investment property is that there currently is a tenant in the property but provided no evidence about the terms of the tenant’s lease or any evidence as to why the tenancy is an impediment to the sale. He also submitted that the rental income derived from the tenancy favours the parties retaining the property.

9. I accept the submission made on behalf of the wife that the parties cannot afford to retain their investment property and the sports car. The husband agreed at the interim hearing to orders in relation to the sale of the sports car but resisted orders that the investment property be sold. It was also conceded on behalf of the husband at interim hearing that neither party seeks to retain the investment property in the final property settlement. Effectively the only arguments that were advanced as to why that property should not be sold was that it is leased and provides some income for the parties.

10. There is no prejudice to either party if the investment property is sold as neither seeks to retain it. The sale of this property will also reduce the parties’ indebtedness at a time when their financial circumstances are extremely strained. The sale will provide funds for the wife to receive the $40,000 interim payment that I consider appropriate in the circumstances as well as shoring up the security of the family home in which the wife and children live. In these circumstances I am satisfied that it is appropriate to make orders for the sale of the investment property as proposed by the wife.

11. In my view it is also appropriate that orders be made appointing the wife as trustee for sale. The husband does not dispute that currently he is unable to carry out his business effectively and it appears likely that this is due to impairments in his current functioning as a result of his substance misuse. The parties are estranged and the wife makes very serious allegations about the husband’s violence and controlling conduct towards her which he does not deny and in respect of which he makes some limited admissions. The wife also contends that the husband has kept her in the dark in relation to their financial matters even though when the relationship was intact she was involved in the business and made significant contributions to the parties’ financial position. The husband has not provided her with relevant information during these proceedings including the situation with the current mortgage. The parties are unable to cooperate or communicate with one another. In these circumstances it is appropriate in my view that the wife take control of the management of the investment property until sale which would be expected to be for a very short time and be appointed as trustee for that sale.

Orders in relation to business vehicles

1. The wife seeks orders that the husband provide her solicitors with information about the location of various vehicles owned by him privately and connected with his transport business, that he deliver to the wife’s solicitors all keys, registration papers and log books and that the wife be at liberty to sell all of these vehicles and for these purposes be appointed as trustee for sale and other associated orders.

2. As touched upon earlier in this judgment the wife seeks orders that on sale of the business vehicles the proceeds be applied to pay all expenses and taxes associated with the sale, to discharge any loan or hire purchase agreement associated with the vehicles and that the balance be deposited into the trust account of her solicitors. She proposes that the balance of the funds be used to discharge mortgage arrears and make mortgage payments on the parties’ two properties and to pay her the sum of $40,000.

3. In addition to having some objections in relation to the form of the orders sought by the wife which do not require her to sell the vehicles but simply give her liberty to do so, the husband’s main opposition to these orders is that if the vehicles are sold, this would bring an end to any possibility of him recommencing his business which has historically been the main source of income for the family.

4. The thrust of the wife’s case in relation to the sale of property was directed almost exclusively to the sale of the investment property and the sports car and virtually nothing was said by way of submission in relation to the husband’s business vehicles. As indicated I propose making the orders for sale of the investment property and the parties reached agreement about the sale of the sports car. There will be sufficient funds realised from the sale of the investment property to provide for the $40,000 payment to the wife, to ensure the security of the home for herself and the children and to decrease the outgoings particularly in relation to interest on the various loans. In these circumstances in my view it is not necessary for orders to be made that the various business vehicles be sold.

5. Although I do not consider it likely that the husband will recommence his business, if his business vehicles are sold then there is no possibility that this could occur. Having regard to the lucrative nature of his business in the past, it would clearly be to the advantage to he and his family if he were once again to recommence his business. In the absence of any particular submissions in relation to the sale of the husband’s work vehicles and as agreement has been reached as to the sale of the most valuable vehicle, I am not satisfied that it is appropriate to make the orders as sought by the wife in relation to the sale of those vehicles.

Other orders

1. Other interim property orders were also sought in the wife’s Amended Initiating Application. These included injunctions restraining the husband from transferring or further encumbering the parties’ properties, disposing of savings held in his name except as required for reasonable day to day expenditure, transferring, disposing of or further encumbering his interest in business vehicles and an order that the wife have exclusive use and occupation of the family home. These and other orders were made on an interim basis with the consent of the parties by a Registrar on 21 August 2019 and were not further pursued in the interim hearing before me presumably on the basis that they were made pending further order.

2. For the foregoing reasons I make all of the interim orders as sought in the wife’s Initiating Application and pursued by her at the interim hearing with the exception of orders in relation to business vehicles. The exact terms of the orders are as set out in the wife’s proposed Minute of Order tendered in the proceedings.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 November 2019.

Associate:

Date:  7 November 2019