Poyzer and Tritton (No 5)

[2010] FamCA 996

FAMILY COURT OF AUSTRALIA

POYZER & TRITTON (NO. 5) [2010] FamCA 996

FAMILY LAW – STAY – where both parties seek variation of a previous order for stay – where an appeal is pending in the Full Court – where the husband seeks to vary an injunction restraining him from leaving the country – where the wife seeks payment to assist her preparation in the appeal – orders that the injunction restraining the husband from leaving the Commonwealth of Australia be suspended on the condition that the husband pay $200,000 from the impending sale of property and that he return within six weeks of his departure – orders that the husband pay $20,000 to the wife to assist in her preparation of the appeal
FAMILY LAW – SPOUSAL MAINTENANCE – not satisfied that the wife has established to the necessary extent her inability to support herself – application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Poyzer

RESPONDENT: Ms Tritton

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 29 October 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 29 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pyke QC

SOLICITOR FOR THE APPLICANT: Randle & Taylor

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. The applications in relation to both parties’ costs are adjourned for hearing for two days on 28 and 29 March 2011 before the Honourable Justice Dawe.

2. It is directed that both parties file a summary of argument in relation to costs and an affidavit to which is annexed particulars of the costs sought and should ensure that there is a distinction drawn between costs incurred in relation to children’s issues and costs incurred in relation to financial matters.

3. The summary of arguments and any affidavit annexing the particulars of the costs be filed and served by 4.00 pm on 8 February 2011 and any other documents upon which the parties seek to rely to be filed and served by 4.00 pm on 18 February 2011.

4. The injunction restraining the husband from leaving the Commonwealth of Australia be suspended ON CONDITION that the wife receives the payment of TWO HUNDRED THOUSAND DOLLARS [$200,000.00] on 9 November 2010 and that ON CONDITION that the husband return to the Commonwealth of Australia within six [6] weeks of 11 November 2010.

5. The Registrar is to deliver up to the husband his Australian and British passports upon proof of payment to the wife the said sum of TWO HUNDRED THOUSAND DOLLARS [$200,000.00].

6. The husband to make a further payment to the wife of TWENTY THOUSAND DOLLARS [$20,000.00] within two [2] calendar months from today on the basis that the sum is treated as payment of the amount due pursuant to the judgment of the Honourable Justice Dawe dated 23 September 2010 but subject to any order made by the Full Court of Australia or this Court in relation to the question of costs of these proceeding or the appeal proceedings.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1063  of 2001

MR POYZER

Applicant

And

MS TRITTON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me now further applications in relation to the husband seeking permission to vary the conditions of the stay order that I made preventing him from leaving the country.  I also have before me an Application in a Case by the wife, seeking to vary the stay order that I made and seeking interim orders pending the decision of the appeal. 

2. Both of these matters seek to vary the orders of the stay which I have granted.  It is appropriate that they be heard and a decision made on the documents which are currently before the Court. 

3. The issue of the husband leaving the country is directly connected to the ability of the wife to maintain herself or manage to prepare for the appeal whilst the husband leaves the country. 

4. The orders that I made by way of final orders discharge the order that provided for the husband to pay maintenance of $1000 a week to the wife.  These are obviously connected to the property settlement final orders which I made on the same day.

5. The husband wishes to leave the country.  He relies on his affidavit in which he says that he has a frequent flyer ticket which expires on 11 November 2010 and he wishes to visit his family, in particular his brother who some years ago had some health issues. 

6. The Court is told from the bar table that he plans only to be absent from the country for approximately five weeks from 11 November 2010 and is proposing to take the parties’ son with him. 

7. The wife does not accept his assurances that he will return and draws attention to the fact that he had previously removed approximately $300,000 from the country and placed it in his brother’s name.  That money has been ordered by the Court to be returned and paid by way of settlement to the wife, which I understand has been done.

8. The stay needs to be maintained but should ensure that the conditions of the stay are just and equitable to both parties.  The husband maintains that he cannot deal with the significant company and trust assets without the consent of the wife. 

9. The only other property of significance is the husband’s interests in the P property which is now apparently mortgaged to a significant extent, which reduces its equity.  Payment of further sum is due to the wife on 9 November 2010 on the sale of certain properties.  This is the sum of $200,000.  The husband was proposing to leave the country a matter of days after that settlement. 

10. My requirement (in relation to varying the orders by way of the stay which restrained the husband from leaving the country) is to ensure that both parties are protected.  If the wife receives the sum of $200,000 due to her upon settlement on 9 November 2010 that would have the effect of providing the wife with a further significant sum payable to her, pursuant to the judgment, and at the same time provide her with funds to meet her necessary obligations in the meantime.

11. I therefore propose that the injunction restraining the husband from leaving the Commonwealth of Australia be suspended on condition that the wife receives the payment of $200,000 on 9 November 2010 and that on condition also that the husband return to the Commonwealth of Australia within six weeks of 11 November 2010.  The Registrar is to deliver up to the husband his passports, upon proof of payment to the wife of the further sum of $200,000. 

12. The application that the wife makes in relation to payment of maintenance pending the decision of the appeal, and for a lump sum to enable her to prepare for the appeal, before the Court, is supported by the affidavit of the wife dealing with the issues of the financial matters.

13. It appears from the affidavit material before the Court that there is a dispute as to the requirement of the bank to retain, from the proceeds of sale of the M properties, any more than the amount which is secured specifically over those properties. 

14. The dispute, however, indicates that if the husband is right, then there will be a substantial reduction of some $350,000 in amounts owing by the companies and entities which he currently effectively controls, giving the companies and himself the ability to raise further funds.  At the same time, however, the wife will have received on 9 November 2010 the sum of $200,000 being payable towards the amounts owed to her.  The wife seeks the funds in order to enable her to prepare for the appeal, which is outstanding.

15. I accept her submissions that the husband’s documents in the appeal are indeed lengthy and raise many issues and that the transcript is large. 

16. I also accept the submission that it may well be the case that she requires funds to instruct lawyers to assist her in the preparation of the appeal.

17. However, the husband makes submissions that the wife has already received certain funds and chosen to deal with them in a particular way. 

18. Bearing in mind all of the factors and in particular the payment due of the sum of $200,000 and the proposed reduction by the husband of any indebtedness upon the sale of the M properties, I consider it is appropriate in all the circumstances for the husband to be ordered to make a further payment to the wife of $20,000 within two calendar months from today, on the basis that the sum is treated as payment of the amounts due pursuant to my judgment, subject to any order made by the Full Court or this Court in relation to the question of costs of these proceedings or the appeal proceedings.  I do that on the basis that the sum of $20,000 is an amount which, in the Court’s view, is an amount which will easily be raised by the husband and is an amount which would allow the wife to commence preparation of the appeal matters. 

19. In relation to the question of maintenance for the wife; whilst I accept that there is work to be done in relation to the preparation of the appeal, I am not satisfied that there is sufficient evidence before the Court which indicates that the wife is not capable of supporting herself to the extent necessary to require an interim maintenance order or restore the order which discharged that maintenance order when the final judgment was made.

20. Save and except in relation to the question of costs of the proceedings, which is adjourned to 28 and 29 March 2011, that deals with the Applications in a Case. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 October 2010.

Associate: 

Date:  8 November 2010