POYZER & TRITTON

[2010] FamCA 99

FAMILY COURT OF AUSTRALIA

POYZER & TRITTON [2010] FamCA 99

FAMILY LAW – ORDERS – variation – application to vary existing orders pending the delivery of judgment – held no sufficient new evidence – application dismissed

FAMILY LAW – INJUNCTION – application by husband for an ongoing injunction – held that there was no new evidence to support a further injunction – application dismissed

FAMILY LAW – CHILD SUPPORT ­– discretion – held it was inappropriate for the Court to exercise its discretion to hear the issue once trial had concluded

Family Law Act 1975 (Cth)

APPLICANT: Mr Poyzer

RESPONDENT: Ms Tritton

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 2 February 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 2 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The Application in a Case filed by the husband on the 19 January 2010 is dismissed.

2. The matter remains as judgment reserved.

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. This is an Application in a Case brought by the husband filed on 19 January 2010 seeking orders in the attached sheet of some 14 paragraphs.  This matter has a substantial history and has been outstanding before the Courts for years and years. 

2. Last year I concluded a trial which had commenced in November 2007 and on a rough estimate ran for approximately 50 days in relation to the complicated financial arrangements and the orders for final property settlement sought by both parties.  Judgment is reserved and is yet to be delivered. 

3. I have had before the Court a considerable amount of evidence including contested matters concerning the financial circumstances of the parties and the various entities which have been and continue to be operated in relation to the businesses, trusts and companies.

4. The evidence before the Court was detailed and complex.  The husband’s application now seeks various orders some of which relate to the different entities.  For instance, paragraph 1 of the application seeks a virtual discharge of the order I made on 23 September 2009 which restrained the husband from dealing with the interest in various companies and real estate.  He now seeks that he be permitted to sell three pieces of real estate without reference to the wife provided it is at a valuation by the Court appointed single expert witness valuers’ valuation.  He then says that he wants the proceeds to be used in accordance with the attached affidavit or “in such manner as the Court may determine”.

5. The attached affidavit sets out certain matters asserted by the husband in relation to the financial proceedings. 

6. The order that I made on 23 September 2009 (after hearing considerable argument and being aware of the all the issues outstanding in relation to contested matters between the parties) provided that pending the delivery of the judgment the husband was restrained from transferring, encumbering, assigning, pledging or in any way dealing with his estate or interest in or the assets of the following entities (and then they were listed entities which included the properties which the husband now seeks leave to sell).  The order continued:

   “…save and except for the prior written consent of the wife and further save and except in the ordinary course of a business and on account of reasonably incurred living expenses of himself, the wife and the parties’ children.”

7. The application of the husband currently before the Court by way of case application continues to seek that the order to divide equally between the husband and wife the proceeds of sale of the property at S, be amended and the funds be distributed according to the attached affidavit.  Again, the order made in relation to the proceeds of sale of the S property was made after hearing all of the evidence and considering all of the financial circumstances of the various entities and the parties. 

8. The application of the husband continues in paragraphs 3, 4, 5 seeking orders, again varying the orders which were made by me in relation to the various entities protecting the assets and after considering the information that was before the Court at that time.

9. In relation to those matters there is nothing in the husband’s affidavit which could be described as new material.  What it asserts is that parties have been in the past not able to agree in a reasonable, prompt manner about how the various entities should proceed to deal with the various matters in relation to their finances.  There has been ongoing dispute.  Those issues were before the Court when the orders were previously made and the matter now stands in a position where the judgment is reserved. 

10. In paragraph 6 of the husband’s application he seeks an order that the wife file an affidavit setting out particulars concerning what he says is “alleged remuneration” in relation to work she may be undertaking.

11. The application in that regard appears to be an application for the evidence to be reopened in relation to the wife’s possible employment.  The wife admits that she has a contract at the moment.  In any event, the issue before the Court as to the wife’s capacity for employment was clearly before the Court during the trial before me.  I am not satisfied that the issue as described by the husband in his affidavit and application is one which requires the Court to exercise the discretion to reopen the evidence.  I do that on the basis that the Court is required to take into account that the evidence before the Court at trial already indicated that the wife has a capacity for employment and that that issue is sufficiently dealt with by the evidence which was already before the Court.

12. The husband also seeks an order in paragraph 7 that the wife forthwith pay the arrears of her mortgage to the Commonwealth Bank and refinance with another financial institution.  Again, this is hardly a new matter arising as the difficulties in relation to the parties’ finances with various financial institutions were already before the Court during the hearing before me.  I am not satisfied that the husband has raised sufficient new material to warrant an order being made prior to the delivery of judgment that would be directed to the wife in that regard (as distinct from covering all of the issues which will be dealt with in the final delivery of judgment).

13. The husband also seeks an order that the wife be restrained from attending M Centre which he operates through the various entities and that she be restrained from making telephone calls to the centre. 

14. In his affidavit he merely complains that his staff are allegedly still concerned about the wife’s approach to M Centre.  The bond which was previously in existence expired at the conclusion of the evidence in this matter.  I am not satisfied that there is anything in the affidavit filed by the husband which would support a further ongoing injunction.

15. The husband seeks to restrain the wife from contacting the Commonwealth Bank in connection with any of the associated accounts other than that pertaining to her property at N.  If the wife due to her role and her liabilities in relation to various loans is considered by the Commonwealth Bank to be a client or customer they will deal with her.  If she is not, they will not.  If she is a client or customer she should have the right to provide the appropriate information in her interests as she chooses. 

16. In relation to the paragraph 10, that is an order seeking that the wife pay all extra interest and costs associated with accounts at the CBA Credit Management Unit.

17. The accounts were all matters which were before the Court by way of evidence in relation to the trial about many matters which were disputed.  Again, I am not satisfied that those orders are orders which should be appropriately be made pending the delivery of the judgment. 

18. Paragraph 11 seeks that the wife pay any costs including, lawyer’s fees, accounting fees, fines or charges from the Australian Taxation Office resulting from the wife’s refusal to sign the fund’s taxation returns or co-operate into bringing the fund into compliance.  The wife maintains that the accounts she has been provided differ from those on one financial year to those provided during the evidence at the trial and asserts that evidence was given at the trial that it was only one director was needed to sign the taxation returns.

19. In relation to paragraph 12 the husband seeks an order “that the wife be ordered to pay $150 per week to the husband by way of contrition” – I assume he means “contribution” – “to my son’s upkeep.”  The wording is actually “contrition.” 

20. The husband further seeks costs (including “legal and accounting”) and that the matter be dealt with urgently. 

21. The question of payment of child support between the husband and wife in relation to the care of the child is a matter which would normally be dealt with following the provisions of the child support legislation.  There is no indication that this matter should not be dealt with in that manner.  The trial has concluded and therefore it would not be appropriate to exercise any discretion to hear the child support issue now.

22. Taking into account the discretion the Court has to reopen evidence where it is appropriate and balancing the need for the parties and the Court to limit the material before the Court to that which is appropriate and necessary for the Court to make the necessary determination.  I consider that the matters before the Court are not such as to require the Court to make the orders sought or to deal with the issues raised by the husband in the manner which he seeks.  Rather, the matters should be dealt with by the parties in their normal manner ensuring that they co-operate in the normal sense and deal with provisions of the orders which I have already made after considering the issues on 23 September 2009.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  15 February 2010