Powell and Powell
[2011] FMCAfam 1144
•12 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POWELL & POWELL | [2011] FMCAfam 1144 |
| FAMILY LAW – Interim lump sum maintenance – payment of arrears of maintenance – injunctions – interim costs – interim sale of property. |
| Family Law Act 1975, ss.75, 79, 114 |
| M & DB [2006] FamCA 1380 |
| Applicant: | MS POWELL |
| Respondent: | MR POWELL |
| File Number: | WOC 475 of 2011 |
| Judgment of: | Altobelli FM |
| Hearing date: | 7 October 2011 |
| Date of Last Submission: | 7 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Dribbus Kovacevic Lawyers |
| Counsel for the Respondent: | Mr Sweet |
| Solicitors for the Respondent: | Heard McEwan Lawyers |
ORDERS, PENDING FURTHER ORDER
The Husband pay to the Wife the arrears of spousal maintenance payable pursuant to orders made 12 July 2011, on or before 5:00pm on the day following the making of these orders.
The Husband either by himself or as director and or shareholder of the following companies or by his agent or an agent of the following companies:
(a)[M] Pty Limited
(b)[U] Labour Pty Limited
(c)[S] Pty Limited
(d)[C] Pty Limited
be restrained from selling, dealing with or otherwise encumbering the following properties without giving to the wife 4 weeks notice in writing of his intention to do so:
(i)[Property A];
(ii)[Property B];
(iii)[Property C];
(iv)[Property D];
(v)[Property E];
(vi)[Property F];
(vii)[Property G];
(viii)[Property H];
(ix)[Property I];
(x)[Property J].
Pending further order and unless otherwise agreed between the parties in writing:
(a)the Husband be restrained from dealing with his shareholdings in any company except for any shareholdings he may have in companies listed with the Australian Stock Exchange without giving the Wife 4 weeks notice in writing of his intention to do so.
(b)the Husband be restrained from resigning his directorship in any company in which he is a director as at the date of this application.
(c)
the Husband be restrained from, in his capacity as shareholder, appointing any other person a director of any company in which he is presently a director or shareholder without giving the wife
4 weeks notice in writing of his intention to do so.
(d)the Husband be restrained from causing to be sold any real property in relation to which he is a proprietor or co-proprietor without giving the wife 4 weeks notice in writing of his intention to do so.
The remainder of the Wife’s Amended Application filed 12 September 2011 is dismissed.
The Husband’s Amended Response to an Application in a Case filed in court on 7 October 2011 is dismissed.
The Conciliation Conference on 5 December 2011 is vacated.
The Mention on 5 December 2011 is vacated.
The proceedings are transferred to the Family Court of Australia to be listed for directions before a Registrar on 24 October 2011 at 9:30am.
Both parties’ costs are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Powell & Powell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 475 of 2011
| MS POWELL |
Applicant
And
| MR POWELL |
Respondent
REASONS FOR JUDGMENT
I provide the following oral reasons in the matter of Powell that I heard in the Wollongong duty list last Friday. The applicant wife is 49 years old, and describes herself as undertaking home duties. The respondent husband is 48 years old and describes himself as a [occupation omitted]. They commenced cohabitation in 1995, married in 2001, and separated in 2011. The period of cohabitation appears to be about 16 years. There are two children, aged 9 and 7, who appear to live with the applicant wife. The substantive proceedings between them relate to property, under section 79. The big issue between the husband and the wife at the moment is the constitution of the asset pool and its value. I also apprehend issues about assessment of contribution, and section 75(2) future needs.
There is no doubt in my mind that this is a complex matter, and I will transfer it to the Family Court once I determine the present issues. The transfer is not opposed by the respondent husband. It was faintly and unconvincingly opposed by the applicant wife. As I say, the matter came before me in the duty list in Wollongong last Friday. The wife’s Amended Application in a Case seeks a lump sum spousal maintenance of $67,300, payment of arrears of spousal maintenance, and various injunctions and restraining orders, the main purpose of which seem to be preservation of assets. The applicant wife also seeks interim costs.
By way of an Amended Response to an Application in a Case, filed in court on 7 October, the respondent husband seeks orders firstly, dismissing the wife’s Application in a Case; secondly, suspending orders made by FM Sexton, but on condition that $42,000 in cash allegedly taken by the wife be returned to the husband; thirdly, he seeks various items of personal property; fourthly, that the wife be restrained from entering into the former matrimonial home; and fifthly, the sale of a property in Croatia.
By way of history, the matter on 12 July came before FM Sexton, who made parenting orders, made an interim spouse maintenance order of $1300 per week, and made an interim order that a company controlled by the husband pay all costs associated with the [omitted] motor vehicle driven by the wife. She ordered the release of a lump sum of $22,500 to the wife. FM Sexton also ordered the husband to pay to the wife $7500 to enable her to purchase furniture. There were a number of orders in relation to personal property, and various other directions.
The evidence before me consists of the affidavits that the wife filed in her proceedings to date, together with her financial statement. Likewise, the husband’s evidence consists of the affidavits that he has filed in his application to date, and his statement of financial circumstances. I was greatly assisted by a case outline chronology and summary of argument provided by Mr Sweet, Counsel for the husband, and I intend to incorporate into these oral reasons, the very useful chronology that was prepared by Mr Sweet in that document, insofar as it relates to uncontentious matters.
I want to make some observations about the evidence, having regard to the issues that were brought before the Court. Firstly, the evidence in its totality was singularly unhelpful. The evidence of both the husband and the wife is not just inconsistent and conflicting between the husband and the wife, but inconsistent and conflicting as between the evidence of each of them. I form the distinct impression that the husband’s financial statement is incomplete. There was a total absence of any objective evidence before the Court. The affidavit material filed by both parties is simply not pertinent to the issues that were raised before the Court.
I have formed a preliminary impression that neither the husband nor the wife were being entirely frank in terms of their disclosure before the Court. The truth might be out there somewhere, but it was certainly not in my courtroom. There is some evidence I do accept, at least to the standard where I believe I can safely impose interim orders, and where I am satisfied that the balance of convenience would favour the same. It is clear that the husband is not paying spouse maintenance as ordered and there is no good reason for doing this. It is clear that there is a risk that the husband will dispose of or deal with assets without prior consultation with the wife or her representatives. It is also clear that there are large sums of cash that are involved in this case. I clearly cannot make findings about who has the cash or who has taken the cash.
The applicable law is of course contained in the relevant sections of the Family Law Act1975. The Full Court’s decision in M & DB [2006] FamCA 1380 is a useful authority on which to decide whether or not to grant the injunction sought.
I deal firstly with the wife’s Amended Application in a Case, and the orders that she seeks therein. There is no evidence before the Court to justify making a further lump sum spousal maintenance of the payment of $67,300. I decline to make order 1. I am satisfied that there are arrears of spouse maintenance, and I am satisfied that there is absolutely no reason for the husband not to be paying.
I am satisfied on the balance of probabilities, and based on the Full Court’s decision in M & DB that there should be injunctions restraining the husband from doing certain things. The restraint in order 5 is too wide in its present terms. For example, it does not address the issue of secured creditors. I cannot make this order in terms sought by the wife. Orders 6 to 9 contain reasonable restraints. Order 10 is problematic in its terms. There is not enough evidence before the Court about the husband’s role in the businesses and company structures so that the Court can be satisfied that this is a reasonable, proportionate, and enforceable obligation.
There is no evidence before the Court to justify the making of an interim costs order. It should be noted that I am not saying that the wife is not entitled to the orders that I have declined to make today at some future time. What I am saying is that the evidence simply does not support the making of these orders.
I refer now to the husband’s Amended Response to an Application in a Case filed 7 October. I can make no findings whatsoever as to whether or not the wife took the cash. I can say this to the respondent husband: even if she did, it does not mean that the order for spouse maintenance would be suspended. The husband’s case for order 1 is not made out. I make it clear to the husband, unequivocally, that I have formed the impression from the evidence that he has capacity to pay spouse maintenance, and until that order is discharged or suspended, he is required to make the same.
There is no evidence before the Court to justify making orders 2 and 3. In the absence of cogent evidence, I decline to make order 5. As to order 4, there is no evidence before the Court such as to justify what is, in effect, an exclusive occupation order.
I transfer this matter to the Family Court of Australia, and list it before a Registrar on 24 October at 9.30 am. I will arrange for a transcript of my oral reasons to be taken out and placed on the file, and I will settle the orders that I have just made later on today.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 26 October 2011
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