PELLIS & EASTMAN

[2013] FCCA 2311

FEDERAL CIRCUIT COURT OF AUSTRALIA

PELLIS & EASTMAN [2013] FCCA 2311

Catchwords:
FAMILY LAW – Property – interim application – where parties made interim consent orders for the husband to be responsible for the businesses – where wife now wants to revisit the arrangement – Held that as the husband has not acted inappropriately in the business then interim consent order to remain in place – where wife wants sole occupation of Town B property – where farm is situated on Town B – Held wife to have sole use of house property only – where wife wants business to pay for valuations  – Held that husband pay for valuations with wife to pay once Court orders made.

Legislation:  

Family Law Act 1975, Part VIII

Applicant: MR PELLIS

Respondent: MS EASTMAN

File Number: LEC 375 of 2013

Judgment of: Judge L. Turner

Hearing date: 4 December 2013

Date of Last Submission: 4 December 2013

Delivered at: Brisbane

Delivered on: 18 December 2013

REPRESENTATION

Solicitors for the Applicant: Crane Paskins Law

Solicitors for the Respondent: Family Law Solutions

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That these Orders are to be read in conjunction with the interim consent orders made on 10 September 2013 and the further interim consent orders made on 4 December 2013.

2. That otherwise all other interim applications made by the Wife in respect to the businesses owned by the parties are hereby dismissed.

3. That, as of the date of these Orders, the Wife have sole use and occupancy of the residential house property which is part of the real property situated at C Street, Town B in the State of New South Wales.

4. That the Husband is forthwith restrained from entering or remaining in the residential house property mentioned in Orders 3 herein and that any spare keys for the house itself are to be held by the Husband’s Solicitors.

5. That the Husband be solely responsible for the payment of any costs associated with valuations required for the purposes of the property settlement with the Wife to reimburse the Husband for one half of such valuation costs upon the making of final Court orders for the property division.

6. That the costs of the interim hearing conducted on 4 December 2013 are hereby reserved.

THE COURT FURTHER ORDERS:

1. That the parties and lawyers on the record must attend on 9 April 2014 at 9.00am at the Family Law Court, Level 2, 29-31 Molesworth Street, Lismore for a Conciliation Conference with a Registrar and make a bona fide attempt to reach agreement on relevant matters in issue between them.

2. That unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $350 in accordance with the Family Law (Fees) Regulation 2012 by no later than 28 days prior to the Conciliation Conference.

3. That should the Applicant fail to comply with Order 8 herein the matter be listed for mention before the Court as soon as practical prior to the Conciliation Conference date.

4. That both parties produce to the other 14 days prior to the Conciliation Conference, documents as prescribed in Annexure A to this Order.

5. That the parties provide to the Registrar conducting the Conciliation Conference a list of agreed assets and liabilities.

6. That the parties have liberty to apply on the giving of seven (7) days’ notice in writing to the other party and to the Court in relation to these directions.

7. That should the parties fail to resolve all issues in dispute at the Conciliation Conference the matter be listed for further orders and/or directions on 5 May 2014 at 9.30am in the Federal Circuit Court of Australia at Lismore.

THE COURT NOTES:

A.That the Conciliation Conference on 9 April 2014 is to occupy the entire

morning.

IT IS NOTED that publication of this judgment under the pseudonym Pellis & Eastman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

LEC 375 of 2013

MR PELLIS

Applicant

And

MS EASTMAN

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. After a lengthy relationship, the parties are involved in property proceedings as to the division of the property pool.

2. At the first return date where both parties were legally represented, the parties agreed to comprehensive interim orders allowing the husband to conduct the business, which is one of the assets of the relationship.

3. However, less than two months later, the wife brings an application seeking further orders in respect to the business and seeking sole occupation of the C Street, Town B property.

4. Whilst a number of matters raised in the wife’s application were resolved by way of further consent orders, a number of issues require determination on an interim basis.

Issues

1. The outstanding issues pertain to:-

   a)The provision of information by the husband to the wife as to the business.

   b)An increase in the payment of monies from the partnership.

   c)Whether the husband should be restrained from dealing with anything to do with the partnership business other than in the normal course of business.

   d)Sole occupation of the Town B property by the wife.

   e)Cost of valuations.

Evidence

1. In considering these issues regard has been had to:-

   a)the material as marked on the Court file;

   b)the oral submissions of the parties;

   c)Part VIII of the Family Law Act 1975.

2. Findings of fact are made on the balance of probabilities, having regard to the evidence and in what follows statements of fact constitute findings of fact.

3. Before considering the issues, it is useful to capture the relevant agreed and disputed facts.

Agreed facts

1. The agreed facts are as follows:-

   a)The husband is aged 61 and runs the business. 

   b)The wife is aged 57 and assists in the running of the farm which is conducted on the Town B property.

   c)The parties commenced a relationship in 1996, married in 1999 and separated in May 2013. 

   d)There were no children of the relationship.

   e)Whilst there is real estate in the property pool, one of the main assets is the business.

   f)The parties operate a business partnership Pellis & Eastman Partnership which conducts the business and wholesaling business known as “The Business”.

   g)The primary role of the business is to supply products to retail stores with the main customer being Supermarket D. 

   h)Some of the product is imported from overseas sources and the business employs numerous persons, including a Mr E who looks after that sourcing.

   i)The business turns over millions of dollars each year.

   j)In early 2010 the wife suffered a head injury when she fell sleepwalking.

   k)Since then the husband has been primarily responsible for the conduct of the business.

   l)At separation, the wife removed $50,000 from joint funds. 

   m)Since separation in May 2013 the wife has remained at the former matrimonial home which is also on the Town B property.

   n)Property proceedings were commenced by the husband in August 2013 and on an interim basis, orders were sought by the husband to be solely responsible for the running of the business.

   o)The wife filed her response in September 2013 which also sought interim orders in respect to the business.

   p)On 10 September 2013 interim consent orders were entered into which provided for the husband to operate the business solely and for the provision of certain information to the wife in regards to the business.

   q)On 12 November 2013, the wife filed an application in a case seeking payment of additional monies, the provision of further information by the husband to the wife, as well as various other orders such as sole occupation of the Town B property and for the costs of valuations to be paid by the business.

   r)On 4 December 2013, the matter proceeded by way of an interim hearing.

Disputed facts

1. The disputed facts are as follows:-

   a)The extent of the wife’s head injury and the ongoing impact of that injury on the wife.

   b)Whether the wife is trying to interfere in, or sabotage the business.

   c)The extent of the wife’s involvement in the business.

   d)What happened to the $50,000 removed by the wife at the time of separation.

   e)What is the current indebtedness of the business.

2. These are issues which will not be considered at the interim hearing and will be given due consideration should the matter proceed to a final hearing where all the necessary evidence will then be before the Court.

3. It is in the context of these agreed and disputed facts that I will now consider the issues.

Issues regarding the business

1. The first issue is all those orders being sought in respect of the business which I will deal with collectively.

2. I am somewhat perplexed by the wife’s application in the case.

3. Only months ago, whilst legally represented, the wife agreed to interim consent orders which, in effect, allowed the husband to continue to run the business and provide information to the wife on a periodic basis as to how the business was progressing.

4. This is a large, successful business which, on all admissions, has been primarily run by the husband.

5. Despite the numerous disputed facts, the wife has not raised any concerns as to the husband not carrying out his partnership duties or doing anything underhanded in respect of the business, especially since the interim consent orders were reached.

6. If anything, the wife’s evidence supports the wife’s interference in the business such as making purchases without consultation of the husband.

Conclusion

1. As there is nothing untoward, I am not prepared on an interim basis to revisit any orders pertaining to the running of the business by the husband.

2. Any concerns are issues which can be raised at the final hearing.

3. In the meantime, it would be inappropriate for this Court to interfere in how the husband is running the business, especially on an interim basis, where it is dangerous to make findings on disputed facts where evidence can not be tested.

4. Similarly, I do not propose to revisit the amount of drawings to be paid by the business to either party.

5. Certainly the wife in her financial statement is not struggling financially and I take note of the husband in his business wisdom that care must be taken as to how funds are utilised in the business, as business debts need to be paid.

6. Likewise, I am not prepared to place any restrictions on the dealings by the husband with any assets of the business as there is no evidence before the Court of any inappropriate dealings by the husband.

7. As regards to the wife, I respectfully suggest that she leave the husband to do what he does well without undue interference, so that pending settlement or final determination of the matter, the property pool is preserved.

8. I therefore dismiss the wife’s application in respect to any orders pertaining to the businesses.

Wife’s sole occupation of the Town B property

1. The next issue is the wife’s sole occupation of the property at Town B.

2. The wife, in essence, already has sole occupation in that the wife has exclusive use of the property, with the husband living elsewhere.

3. The complicating factor, however, is that the Town B property, as well as consisting of the former matrimonial home, is also the working farm which supplies products to the business.

4. The wife is currently assisting in the running of the farm, but does not want the husband anywhere near the farm, despite the husband having sole control of the business.

5. The husband agrees that he will not go near the house property itself, but needs access to the surrounding sheds and silos in order to carry out what needs to be done in respect of the supply of the products.

Conclusion

1. I find, having considered the evidence, that it is a ludicrous proposal by the wife that the husband can not access the farm, especially as he has sole control over the business and the farm is an integral part of that business.

2. However, I acknowledge the wife’s concern as to the lack of communication between the parties, and I suspect a lack of trust, and an order has been made that the husband does not enter the house property itself.

Costs of valuations

1. The last issue is who will pay for the cost of valuations that are necessary for the progress of this matter.

Conclusion

1. As the husband has control of the business and as an indirect consequence the control of most of the parties’ finances and as the wife has, according to her financial statement, no ready access to liquid funds, I order that the husband pay the costs of any valuations, with the wife to reimburse the husband for half the costs at the time this matter settles or a final determination is made.

2. A restriction has not been placed on the husband as to the monies coming out of the partnership, where and how monies are to be paid for the costs of the valuation as this will be up to the husband to decide.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge L. Turner

Associate: 

Date:  22 January 2014