Quach & Troung

[2021] FamCA 478

FAMILY COURT OF AUSTRALIA

Quach & Troung [2021] FamCA 478

File number(s):	SYC 5318 of 2020
Judgment of:	HARPER J
Date of judgment:	23 June 2021
Catchwords:	FAMILY LAW – PROPERTY – Injunction – Whether there should be a restriction placed upon the husband in the nature of an injunction from using funds in an account to meet his liabilities to pay the mortgage, strata fees and council rates in respect of marital property.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	15
Date of hearing:	23 June 2021
Place:	Sydney
Counsel for the Applicant:	Mr Ford
Solicitor for the Applicant:	Juris Cor Legal
Counsel for the Respondent:	Mr Givney
Solicitor for the Respondent:	Longton Legal

ORDERS

SYC 5318 of 2020
BETWEEN:	MR QUACH Applicant
AND:	MS TROUNG Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	23 JUNE 2021

THE COURT ORDERS THAT:

1.Orders be made in accordance with the document marked "Exhibit A" as signed by the parties and dated 23 June 2021.

THE COURT FURTHER ORDERS THAT:

2.Pending further order the Applicant Husband be restrained from utilising or dealing with the funds presently held in Commonwealth Bank Account BSB … and account number …86, other than for the purpose of paying mortgage payments, strata fees, and council rates in respect of the Suburb B property, up to and including 22 October 2021.

Exhibit ‘A’

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY  FILE NO: SYC5318/2020

MR QUACH
Applicant Husband

and

QIHAN MA
Respondent Wife

CORAM:       THE HONOURABLE JUSTICE HARPER

DATE:           23 JUNE 2021

BY CONSENT AND PENDING FURTHER ORDER, IT IS ORDERED:

1.That the wife have exclusive occupation of the property at D Street, Suburb B in the State of New South Wales ("the Suburb B property") provided she pay all of the following outgoings:

a.Electricity.

b.Gas.

c.Water rate.

2.The husband continue to meet the regular mortgage expenses with respect to the Suburb B property.

3.That within 14 days the husband do all acts and things to cause the sum of $40,000.00 to be paid to each of the parties from his Commonwealth Bank Account BSB … account number …86, with such payments to be characterised by the trial judge.

4.That otherwise the parties’ interim applications, including the wife’s application for litigation funding and spousal maintenance be dismissed.

5.Costs reserved.

6.The parties to do all acts and things, including complying with their duties of full and frank disclosure so as to engage in a private mediation with Mr C, within three months of the date of these orders.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Quach & Troung has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

Harper J

1. In proceedings SYC5318 of 2020, on 23 June 2021 an interim application filed by the Applicant Husband (“the husband”) came before me seeking an order inter alia for exclusive occupation of the property at D Street, Suburb B.  I will refer to that property as the Suburb B property in the balance of these reasons. 

2. The Respondent Wife (“the wife”) filed a response in which she sought exclusive occupation of the Suburb B property, together with spousal maintenance and orders for litigation funding.  The Suburb B property is owned by the husband.  It is subject to a mortgage in favour of the Commonwealth Bank. Connected to the mortgage is an offset account which ends in the digits #...86. 

3. The evidence showed that there had been what was described as a convention for the husband to utilise #...86 for the purposes of paying outgoings in relation to the Suburb B property, including the mortgage payments, strata fees and council rates. 

4. On 23 June 2021 the parties engaged in negotiations, which resulted in a resolution of all the issues, apart from one which I will describe shortly.  The parties provided a document which was entitled “Exhibit A” and which I will mark as exhibit “A” on the application. This set out a range of agreed orders, including an order that the parties engage in a private mediation within three months of the date of the orders.

5. I make the orders as set out in exhibit “A”. 

6. The residual issue, about which I have heard argument, is whether there should be placed upon the husband a restriction in the nature of an injunction from using the credit balance of the account #...86 for the purpose of meeting his liabilities to pay the mortgage, strata fees and council rates in respect of the Suburb B property.  The husband contended there should be no such restriction, because he has, in the past, utilised #...86 for the very purpose of paying outgoings, including strata fees, council rates and the mortgage. 

7. The wife seeks a further order that the husband be restrained from utilising the funds in #...86 for any purpose, including the payment of outgoings in respect of the Suburb B property.  The basis for that restraint is said to be that the evidence discloses the husband has received into #...86 in the past substantial amounts of money, the source of which he has failed to disclose in the course of these proceedings.  For example, in a bundle of documents which is called “the Husband's Court Book”, and which I will mark exhibit “B”, I was taken to a number of pages, including the details of a Notice to Admit Facts served upon the husband by the wife concerning deposits and withdrawals from #...86, between August 2017 and December 2019 to a total of $343,545.

8. The husband served a Notice Disputing Facts which does not disclose the source of those payments.  The husband, however, contends that by correspondence between his solicitor and the solicitors for the wife, dated 9 April 2020, it was clearly disclosed that there was received by the husband monies from his parents for the purpose of acquiring the Suburb B property. 

9. In other respects, the wife contends that the evidence shows the husband has other financial resources from which he could meet the mortgage expenses, strata fees and the council rates in respect of the Suburb B property, rather than the funds in #...86, and these resources should be resorted to by the husband for the purpose of meeting those obligations.

10. The authorities make clear that in dealing with interim applications in respect of spousal maintenance and litigation funding, the Court should take a broad brush approach to the financial circumstances of the parties.  Both parties have filed financial statements.  The wife made reference to the husband's financial statement for the purpose of supporting her contentions that his financial circumstances are not fully disclosed.  In particular, his financial statement of 10 June 2021 discloses personal expenditure of $1,600,90 per week.  In exhibit “B” there is evidence that between August 2020 and June 2021 the balance of ...86 reduced from $297,293 to $217,864, and when account is taken of the husband's weekly expenditure, this comes to a total of $59,200, which leaves an unexplained distribution from ...86 in excess of that amount. 

11. Stated summarily, it is the wife's contention that there should be no further erosion of the credit balance in #...86, pending the final determination of these proceedings because if the money in that account is spent, it may be very difficult for the Court to make an appropriate just and equitable property adjustment in the circumstances of this case.

12. According to the husband's financial statement, the weekly mortgage payments in respect of the Suburb B property are estimated to be $732.90.  The weekly cost of council rates and strata levies is $155.  Accordingly, the cost of making the payments for mortgage, council rates or strata fees to the husband each week is approximately $887.  As already noted, the parties have entered into an agreed order that they participate in a mediation within the period of three months.  If the mortgage, council rates and strata fees are met from #...86 for a period of 10 weeks, for example, that would reduce the credit balance by $8870 approximately. 

13. It seems to me that in circumstances where I am persuaded there are some unexplained aspects of the husband's financial position, but that the parties are seeking to resolve their dispute within a relatively short period of time, there is little or no significant prejudice to the wife if the husband is enabled to utilise #...86 for the purpose of mortgage payments, strata fees and council rates for approximately another four months. 

14. Whilst this is an arbitrary period of time, it would be sufficient to enable the parties to engage in a mediation while resulting in only a modest reduction in the credit balance of #...86. 

15. The husband resisted such an order on the basis that it would inevitably result in further litigation.  There may be some force in that, but in the circumstances that have been presented to me on this hearing, it seems to be equally possible that the parties may resolve their dispute at mediation.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       6 July 2021