RYERS & RYERS

[2017] FamCA 429

FAMILY COURT OF AUSTRALIA

RYERS & RYERS [2017] FamCA 429

FAMILY LAW – PROPERTY –INTERIM PROCEEDINGS – SPOUSAL MAINTENANCE – Where the wife seeks urgent spousal maintenance – Where the Court finds that the wife is unable to support herself adequately for the purposes of section 72(1)(a) – Where the Court finds that the husband has capacity to pay urgent spousal maintenance in the sum of $555 per week and, in the event that the husband does not vacate the former matrimonial home an additional amount of $1650 per week together with a lump sum amount of $15,000 – Orders made.

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife sought exclusive occupation of the former matrimonial home – Where the husband is yet to file his evidence – Consideration of general principles – Court finds that no order for exclusive occupation should be made.

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – INJUNCTIONS –Where the wife seeks that the parties be restrained from operating accounts or funds held in overseas accounts – Where the wife seeks that husband be restrained from dealing with his interest in a company – Orders made restraining the parties from operating accounts.

FAMILY LAW – CHILD SUPPORT – Where the Wife seeks urgent child support –Where the husband agrees to the orders sought by the Wife – Orders made by consent pursuant to s 139 of the Child Support (Assessment) Act 1989 (Cth), that the husband pay to the wife the sum of $1,000 per week by way of urgent child support for the children.

Family Law Act 1975 (Cth), ss 72(1)(a), 74(1), 75(2), 77, 79, 114
Child Support (Assessment) Act 1989 (Cth), s 139

Hall and Hall [2016] HCA 23

Kelleher & Anderson [2007] FamCA 137
Sieling and Sieling (1979) FLC 90-627

Sholte and Sholte [2002] FamCA 59

APPLICANT: Ms Ryers

RESPONDENT:	Mr Ryers
FILE NUMBER:	SYC	2839	of		2017

DATE DELIVERED: 22 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 22 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Eldershaw

SOLICITOR FOR THE APPLICANT: Craddock Murray Neumann Lawyers

SOLICITOR FOR THE RESPONDENT: Marsdens Law Group

Orders

*THE COURT ORDERS BY CONSENT AND PENDING FURTHER ORDER THAT:

*Urgent Child Support

1. *The Court notes that the Wife has made an application to the Child Support Agency for an assessment of child support for the children of the parties, namely B born … 2001 and C born … 2004 (“the children”).

2. *Pursuant to s 139 of the Child Support (Assessment) Act 1989 (Cth), the husband pay to the wife the sum of $1,000 per week by way of urgent child support for the children.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. Each party be forthwith restrained from operating any of the following accounts or funds other than with the written consent of the other party or by further order of the Court:

   a.D Bank account number …7-7 (classic checking)

   b.D Bank Individual …29 College Savings accounts (2)

   c.D Bank Traditional IRA

   d.D Bank Individual accounts (2)

   e.D Bank … accounts (2)

   f.D Bank Joint account

   g.E Investments Joint brokerage account …52

   h.E Investments Mr Ryers brokerage account …13

   i.E Investments brokerage account …59

   j.E Investments Traditional IRA brokerage account …35

   k.E Investments fund account …21

   l.E Investments … 25 and 25

   m.E Investments Roth IRA brokerage account …00

   *(collectively, “the Parties’ US Accounts”)

2. Within 24 hours of the making of these Orders, the Husband shall provide to the Wife all current passwords and log-in details for the Parties’ US Accounts and shall thereafter be restrained from changing such passwords and log-in details.

3. That the Husband be forthwith restrained from withdrawing, transferring, encumbering or in any way dealing with his interests in F Limited, including any shareholdings issued to the Husband to date without giving the wife not less than 21 written notice of his intention to do so. 

4. That the Husband be forthwith restrained from taking any steps to cause repayments relating to a loan to G Pty Ltd to be paid by G Pty Ltd to any account other than the Joint NAB Account.

5. Pursuant to s 121 of the Family Law Act, the Wife may provide a copy of these Orders to the following financial institutions in aid of the orderly implementation of these orders:

   n.National Australia Bank, Manager of Suburb H Branch

   o.D Bank

   p.E Investments

6. The Court notes that the husband holds a fixed term lease over a 1-bedroom unit at I Street, Suburb H.

7. That pending further order, the husband shall cause to be paid to the wife the sum of $555 per week (net) by way of spousal maintenance and the first payment shall be made to the bank account nominated by the wife within 7 days of the orders and thereafter weekly.

8. That within seven (7) days the husband is to pay to wife the sum of $15,000 by way of urgent spousal maintenance.

9. Until further order of the Court but for a period of not longer than 3 months from the date of these Orders and pending further interim hearing, the husband shall execute any rental guarantee or any other document required by wife or the wife’s landlord to enable wife to secure rental accommodation in the suburbs between Suburb K and Suburb L in the sum of not more than $1650 per week.

10. Unless otherwise agreed between the parties, the husband is to exclusive occupancy of the property located at M Street, Suburb N in NSW (“the Suburb N property”) which is leased in the husband’s sole name.

11. In the event that the parties agree for the wife to have exclusive occupancy of Suburb N property, then it is unnecessary for the husband to pay the additional spousal maintenance in the sum of $1650 per week or to pay the lump sum of $15 000 to the wife, and in the event that the wife has exclusive occupancy of the Suburb N property the husband will pay, as when they fall due, all rental payments on the Suburb N property.

12. The matter is adjourned for further interim hearing in the first available duty list after 21 June 2017, being at 9.30 am on 7 August 2017.

13. Costs of today be reserved.

*Amended pursuant to the Slip Rule on 14 June 2017

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2839 of 2017

Ms Ryers

Applicant

And

Mr Ryers

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. In this matter the wife has sought urgent relief in the nature of urgent spousal maintenance, injunctive relief and urgent child support. The husband, to his credit, agrees with the orders proposed by the wife in respect to child support. The husband agrees to an order restraining the parties from dealing with certain bank accounts in which the parties currently hold liquid assets, without the consent of the other party. However, the husband opposes the totality of the restraints sought by the wife on the basis that they are unnecessary and go further than that which is reasonably required to protect the wife’s interests.

2. The issue as to whether an order should be made for the wife to have exclusive occupation of the former matrimonial home also impacts upon the issue as to what order is appropriate in respect to the wife’s application for urgent spousal maintenance.

Background

1. The wife is 43 years of age and the husband is 42 years of age.  The parties met in 1996 and married in 1998.  They separated in March 2017.

2. Both the wife and the husband were born in the United States but they now each have permanent resident status in Australia. That is relevant as the majority of the parties’ property is held in United States financial institutions.

3. The parties have two children, B who is now 16 years and five months, and C who is now 12 years and 10 months. The children live predominantly with the wife, although they spend time with the husband. 

Applications

1. The interim orders sought by the wife are set out in Exhibit W1 as follows:

Injunctions

1.     Each party be forthwith restrained from operating any of the following accounts or funds other than with the written consent of the other party or by further order of the Court:

a.[D Bank] account number …7-7 (classic checking)

b.[D Bank] Individual … accounts (2)

c.[D Bank] Traditional IRA

d.[D Bank] Individual accounts (2)

e.[D Bank] … accounts (2)

f.[D Bank] Joint account

g.[E Investments] Joint brokerage account …52

h.[E Investments] [Mr Ryers] brokerage account …13

i.[E Investments] … brokerage account …59

j.[E Investments] Traditional … brokerage account …35

k.[E Investments] 500 Index fund account …21

l.[E Investments] …25 and …25

m.[E Investments] …brokerage account …00

*(collectively, “the Parties’ US Accounts”)

2.That the Husband and Wife shall forthwith do all acts and things and sign all such documents and authorities as may be required to cause the Parties’ US Accounts to be operable only with the joint signatures of the parties.

3.Within 24 hours of the making of these Orders, the husband shall provide the Wife all current passwords and log-in details for the Parties’ US Accounts and shall thereafter be restrained from changing such passwords and log-in details.

4.That the Husband be forthwith restrained from withdrawing, transferring, encumbering or in any way dealing with his interests in [F Limited], including any shareholdings issued to the Husband to date.

5.That the wife be permitted to transfer the whole of the balance of the jointly held NAB Account being BSB … Number …41) (‘ Joint NAB Account”) as it stands at the date of these orders to an account established in her sole name.

6.That the Husband be forthwith restrained from taking any steps to cause repayments relating to a loan to [G Pty Ltd] to be paid by [G Pty Ltd] to any account other than the Joint NAB Account.

7.Upon the implementation of Order 5, Each party shall be restrained from operating the joint NAB account except by further order of the Court (being BSB … No. …41.

8.Pursuant to section 121 of the Family Law Act, the Wife may provide a copy of these Orders to the following financial institutions in aid of the ordinary implementation of these orders:

a.National Australia Bank, Manager of [Suburb H] Branch

b.[D Bank]

c.[E Investments]

Suburb N property

8AThe Court notes that the husband holds a fixed term lease over a one-bedroom unit at [I Street, Suburb H].

9.By not later than 7 days after the making of these orders, the husband shall vacate the rental property located at [M Street, Suburb N] in New South Wales being the former matrimonial home (“[Suburb N] property”) and thereafter the wife shall have exclusive occupation of that property.

10.Upon the Wife assuming exclusive occupation of the [Suburb N] property, the Husband shall be restrained from entering upon the [Suburb N] property except with a written invitation of the wife.

Urgent spousal maintenance

11.That pending further order, the Husband shall cause to be paid to the Wife the sum of $555 per week (net) by way of spousal maintenance in the first payment shall be made to the bank account nominated by the Wife within 7 days of the orders and thereafter weekly.

12.The Husband shall pay as and when they fall due, all rental payments on the [Suburb N] property.

Urgent child support

13.The Court notes that the Wife has made an application to the Child Support Agency for an assessment of child support for the children of the parties, namely [B] born … 2001 and [C] born … 2004 (“the children”).

14.Pursuant to s 139 of the Child Support (Assessment) Act 1989 (Cth), the husband pay to the wife the sum of $1,000 per week by way of urgent child support for the children.

Other

15.The wife’s application for interim costs be adjourned to a date and time to be fixed

16.Costs reserved.

1. At the interim hearing the husband indicated that he agrees with orders 1, 6, 13, 14, 15 and 16 as proposed by the wife. In addition the husband sought the following interim orders as set out in Exhibit H2;

   1.That on or before 5.00PM 23 May 2017 the Respondent Husband pay to the Applicant Wife the sum of $15,000.00 by way of urgent spouse maintenance being maintenance in respect to the Applicant Wife for the period from 22 may 2017 until the 13 June 2017.

   2.The spouse maintenance referred to in order 1 shall be paid into the NAB account standing in the name of [Ms Ryers] being BSB … Number …09.

   3.That the Applicant Wife is permitted to remove the furniture from the [Suburb H] apartment and thereafter retain all furniture from that Apartment.

   4.That the Respondent Husband do all things necessary to facilitate Order 3 above.

   5.That pending further interim hearing the Respondent Husband shall execute any rental guarantee or such other document required by the Applicant Wife or the Applicant Wife’s landlord to enable the Applicant Wife to secure a residential lease [in the suburbs] bounded by [Suburb K] to [Suburb L] up to $1,650.00 per week for a Period of 6 Months.

   6.That the Respondent Husband have exclusive occupation of the property at [M Street, Suburb N], leased in the sole name of the Respondent Husband.

Issues

1. Accordingly the issues are;

   1.Should the Court make the injunctive orders sought by the wife?

   2.Should the Court make an order for one or other of the parties to have exclusive occupation of the former matrimonial home?

   3.Should an order be made for urgent spousal maintenance and, if so, in what amount?

Injunctions

1. The wife seeks injunctions to restrain the parties from dealing with funds held by the parties in accounts in United States financial institutions. In that respect, the wife submitted that there is a real risk that funds held in those accounts will be depleted prior to the final hearing of the parties’ applications for property orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).

2. In support of her application the wife tendered bank statements in respect to D bank account number …7-7 (Exhibit W3). Those statements show that there have been progressive withdrawals from that account. The statements show that, as at 12 February 2016, there was an amount of US$73,968.91 in the account. After progressive drawdown’s the balance in that account as at 20 May 2017, is now $13.99.

3. The husband asserts that there were reasons for the funds being dispersed from those accounts and, further, submits that it should not be assumed, in these interim proceedings, that those funds have been improperly or inappropriately utilised. The husband further submits that, in so far as the wife has concerns, his consent to Order 1, as proposed by the wife, should alleviate those concerns.

4. It is well-known that, in considering whether to grant an interim injunction, pursuant to s 114 of the Act, the Court is required to balance whether the party seeking the injunction has an arguable case as against any inconvenience to the party who would be the subject of the injunction.

5. The question as to whether orders should be made pursuant to s 79 of the Act adjusting the parties’ matrimonial property interests will ultimately be determined at final hearing. Having regard to the wife’s affidavit filed on 12 May 2017, I am however, satisfied that the wife has a reasonably arguable case that an adjustment of the parties’ property interests will be made at final hearing.

6. In considering the question of the balance of convenience, I accept that it is not disputed that the parties have a substantial amount of money in their United States bank accounts, which is in the order of approximately $1.5 million. Clearly, if those funds were to be dissipated prior to final hearing it would adversely impact upon the wife’s ability to seek an adjustment of the parties’ property.

7. In Kelleher & Anderson:[1] the Full Court confirmed that:

   [The applicant] for injunctive relief… bears the onus of establishing, on the evidence, a real risk of assets being disposed of and also that such disposal may cause [his or her] claim to be defeated or prejudiced. It would not be sufficient merely to show that there is a risk of disposal of assets, or the asset pool being diminished, without also establishing that there is a risk that the [party’s] claim may be defeated or prejudiced if the injunction is not granted.

   [1] [2007] FamCA 137 at [195].

8. While I note that the husband is yet to file his evidence in these proceedings, on the material before me, including Exhibit W3 to which I have referred, I am satisfied that, without appropriate injunctive orders, there is a real risk of disposal of the funds held in the United States bank accounts such that the wife’s case may be defeated or prejudiced at final hearing.

9. The question then becomes the appropriateness of the injunctive orders sought by the wife. In that respect, in Sieling and Sieling (1979) FLC 90-627 at 78,265, the Full Court said:

   The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order and frame its order in such a way to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim.

10. I note that the husband consents to Orders 1 and 6 of the wife’s proposed orders and that the wife does not press Order 5. Accordingly, my consideration will focus on the wife’s proposed Orders 2, 3, 4 and 7.

11. Order 2 as sought by the wife seeks that the husband and wife shall forthwith do all acts and things and sign all documents and authorities as may be required to cause the United States bank accounts to be operable only with the joint signatures of the parties.

12. In my view, Order 2 is unnecessary because of the operation of Orders 1 and 3 as proposed by the wife. Order 1 restrains the parties from operating any of the named accounts other than with the written consent of the other party. Order 3 would provide the wife with access to the account information to ensure that Order 1 has been complied with.

13. Order 4 seeks to restrain the husband from withdrawing, transferring, encumbering or any way dealing with his interest in F Limited, including any shareholdings issued to the husband to date. The wife has tendered the husband’s contract of employment (Exhibit W2). That contract confirms that, in addition to his salary, the husband is entitled to receive equity in the company. It is reasonable to assume that the husband may have received such equity.

14. However, Order 4 goes further than is necessary to protect the wife’s interests and has the potential to unreasonably prejudice the husband. This is particularly so if the husband is deprived of the opportunity to participate in any plans the company may have to deal with its shareholdings. In my view, the wife’s interests can be adequately protected by the inclusion of a requirement for the husband to provide notice of any intended dealings with his shares.

1. Order 7 is a proposed order that each party be restrained from operating the joint NAB account number …41 except by further order of the Court.

2. In that respect, the wife indicated that the account is receiving funds from a business that she has been involved in. The funds are being paid by that business in repayment of a loan that was provided to the business by the parties. In circumstances where the husband asserts that only the wife has access to those funds, consistent with Order 1, it is appropriate that the parties also be restrained from operating that joint account.

3. I will make the orders in terms of Order 8 because it is important to notify the financial institutions of the restraints that have been imposed by these Orders. 

Exclusive occupation

1. I agree with the submissions of counsel for the wife that the authorities of this Court are divided in terms of the criteria to apply when considering whether it is appropriate for an order to be made granting a party exclusive occupation of the former matrimonial home.

2. I am, however, bound by what I consider is the more comprehensive analysis of this issue which was undertaken by the Full Court in Sholte v Sholte[2]. In that case, the Full Court (per Kay, Holden and Monteith JJ) after discussing several Australian and United Kingdom authorities, said:

   An injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances. We agree with the sentiments expressed in G v J (Ouster Order) [1993] 1 FLR 1008 where the English Court of Appeal cited with approval a passage from Lloyd LJ in Burke v Burke [1987] 2 FLR 71 at 73 where his Lordship said:

   "It must never be forgotten that an ouster order is a very serious order to make. It is described by Ormrod LJ…as a ‘drastic order’ and an order that should only be made in cases of real necessity. It must not be allowed to become a routine stepping-stone on the road to divorce on the ground that the marriage has already broken down and that the atmosphere in the matrimonial home is one of tension…"

   Butler Sloss LJ described it as "an extreme order …that should be looked at with the greatest possible care" in Tuck v Nicholls [1989] 1 FLR 283 at 286, and as an “exceptional remedy" in Silvester v Silvester [1997] EWCA Civ 1788.

   There are no words of limitation in s 114 other than the grant of the injunction must be "proper". But, even so, it is difficult to see how the grant of such an injunction could be said to be proper unless there is an appropriate factual base supporting it.

   [2][2002] FamCA 59.

3. In the context of these interim proceedings where the husband is yet to file evidence, I am not in a position to consider the issue of exclusive occupation with the necessary care that the Full Court, in Scholte and Scholte[3], referred to. Accordingly I do not make an order for exclusive occupation of the Suburb N property. 

   [3][2002] FamCA 59.

Urgent Spousal Maintenance

1. That then brings me to the issue of urgent spousal maintenance. I note that the husband acknowledges the need for the wife to receive urgent spousal maintenance to the extent that his proposed orders include a proposal for the wife to be paid the amount of $15 000 by way of urgent spousal maintenance.

2. Further, I note that in Hall and Hall[4], the High Court distinguished between a party seeking an order for interim spousal maintenance and a party seeking an order for urgent spousal maintenance stating:

   Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant.[5]

   [4] [2016] HCA 23.

   [5] Ibid at [8] referring to In the Marriage of: James Michael Redman Appellant and Yvonne Annette Redman Respondent Appeal [1987] FamCA 2; (1987) FLC 91-805 11 at 76,081 [15].

3. In any event I am satisfied that, as a result of having the care of the parties’ two children who are under the age of 18, the wife is unable to support herself adequately in terms of s 72(1)(a). I am also satisfied that the wife has a reasonable need in respect to weekly living expenses, excluding rent, to the extent of $555 as set out in her amended Financial Statement (Exhibit W5).

4. In addition, as a result of the fact that I have not made an order for the wife to have exclusive occupation of the Suburb N property, I acknowledge that the wife will require an additional amount in respect to rent. In that respect, I note that proposed Order 5 of the husband identifies the amount of $1,650 as being an appropriate amount for a rental property in the region where the parties currently reside. I am satisfied that that is a reasonable amount in respect to rent for the wife, who will require accommodation that is suitable for herself and the two children.

5. In addition, as I have previously raised in this hearing, it will clearly be the case that the wife will incur expenses in establishing herself and the children in rental accommodation. This will include acquiring additional furniture and paying a bond. Accordingly, I propose to order that the husband pay, by way of a lump sum to the wife, the sum of $15,000 by way of urgent spousal maintenance.

6. I am further satisfied that having regard to the husband’s income, as set out in Exhibit W2, that he has capacity to pay the total amount that I have determined to be a reasonable amount for urgent spousal maintenance.

Orders

1. Accordingly, I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McClelland delivered on 22 May 2017.

Associate: 

Date:  20 June 2017