SANDON & KOHLER

[2009] FamCA 903

FAMILY COURT OF AUSTRALIA

SANDON & KOHLER [2009] FamCA 903

FAMILY LAW – PROPERTY – interim orders – injunctive relief

Family Law Act 1975 (Cth) s 114(3)

APPLICANT: Ms Sandon

RESPONDENT: Mr Kohler

FILE NUMBER: HBC 177 of 2009

DATE DELIVERED: 7 September 2009

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Bennett J

HEARING DATE: 7 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Agh

SOLICITOR FOR THE APPLICANT: Butler McIntyre & Butler

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders

IT IS ORDERED:

1. That the further hearing of the wife’s application in a case filed 5 August 2009 be adjourned to 10.00 am on 7 December 2009 for directions.

2. That within 14 days, and by way of compliance by the husband with paragraph 18 of the Orders made on 4 March 2009, the husband do all acts and things necessary:-

   a.to reimburse the wife the sum of $2,400.00;

   b.to pay to the credit card provider, Commonwealth Bank, all amounts outstanding in relation to the said credit card and discharge the liability associated with the credit card and provide the wife with documentary proof he has done so.

3. That until further order and save with the written consent of the wife the husband be and is hereby restrained from causing permitting or suffering the sale, disposal or further encumbering of the following assets:-

   a.the camper van registration number …;

   b.the Holden Monaro motor vehicle;

   c.the motor bike in his possession;

   d.the assets of the business “N Business”;

4. That the question of the costs of the wife of and incidental to this day are hereby reserved.

5. That my reasons for judgment this day be transcribed.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER:    HBC 177 of 2009

MS SANDON

Applicant

And

MR KOHLER

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me as the first return date of an application for property orders filed by the wife on 5 August 2009.

2. The husband does not appear today.  An affidavit of service confirms the husband was served personally with the relevant documents on 13 August 2009. There is also an acknowledgement of service.  I have looked at the application for consent orders, which bears the signature of the applicant and the respondent and the respondent’s signature on those documents appears to be the same as the signature on the acknowledgement of service.  I am satisfied the husband has notice of today’s proceedings. 

3. Whilst there is some confusion with the drafting of the application, the intent is clear.  The wife seeks $2400; the balance of the credit debt paid and presumably, some interest; she wants the motor vehicle liability extinguished. Ancillary to that relief she seeks production of documents and information by the husband and an opportunity cross examine the husband.  The Family Law Rules 2004 provide that the respondent should have filed a financial statement. Finally, she seeks an injunction to preserve property pending compliance with his obligations pursuant to paragraphs 17 and 18 of the Orders made on 4 March 2009.

4. The application in the case bears notations about the responsibilities of the applicant.  It nominates it as an enforcement hearing of the financial application.  There is a notation that an enforcement hearing cannot be held in the absence of the parties.  The wife is not present, but her lawyer is and that is sufficient.  There is a notice to the respondent set out at page three of the document, which specifies that for an enforcement hearing of a financial matter, the respondent is required to attend court today and answer questions and produce all documents specified in a list of documents served with the application.  He is also required to complete and swear a financial statement and serve this on the applicant seven days prior to the hearing.  The application bears the notification:

   If you fail to attend the enforcement hearing, a warrant may issue for your arrest.  There may be serious consequences if you fail to comply with the requirements in the Rules in relation to an enforcement hearing.  For more information see a brochure entitled “Enforcement Hearings” served with this application.

5. The orders sought in the enforcement application make specific reference to rules that do not seem to apply or make sense to the enforcement regime for matters in this court.     

6. The orders sought in the wife’s application are in certain respects confusing. It is addressed to the respondent’s obligations under paragraphs 17 and 18 of the Order made on 4 March 2009. The final Order provided that the husband would transfer to the wife his interest in a property at W.  I understand this has been done, as has the discharge of encumbrances over that property and proof of those discharges has been provided to the husband. The obligations of the husband which remain outstanding appear at paragraphs 17 and 18 of the final orders, which provide as follows:-

   17.That contemporaneous with the transfer, the Husband will do all such acts and things necessary to discharge the car loan secured by the Mitsubishi Triton motor vehicle with the Commonwealth Bank to the extent that the Wife is liable and will provide documentary evidence of doing so and will thereafter indemnify and keep indemnified the Wife from any claims or demands made in respect of such loan.

   18.That contemporaneous with the transfer, the Husband will do all such acts and things necessary to discharge the credit card liability with the Commonwealth Bank to the extent that the Wife is liable and will provide documentary evidence of having done so and will indemnify and keep indemnified the Wife against all claims and demands made in respect of the credit card.

7. The wife has filed an affidavit sworn 3 August 2009 in which she deposes that she agreed to postpone the husband’s obligations to re-pay a credit card debt and to obtain a release of the motor vehicle loan until 31 July 2009.  Thereafter, it became necessary for her to pay part of the credit card debt, which she did, but now seeks to recover from the husband that amount of $2400.

8. The practitioner for the wife advised that the credit card liability dealt with in paragraph 18 of the final property orders was in fact $14,075 and that the $2,400 paid by the wife to the credit card provider was to forestall action being taken against her interest in the former matrimonial home.  The court was informed that the liability relating to the Mitsubishi Triton motor vehicle was in fact a joint loan of $46,156. 

9. The court was informed by the practitioner for the wife from the bar table that during an adjournment the wife had had discussions with the husband and it was agreed that the husband would pay all of the credit card liability, including refunding the wife the sum of $2,400 within 14 days and that the wife would extend the period within which he can obtain a release of the Mitsubishi motor vehicle from the personal loan of which she is a party by one year. 

10. I requested that they see if the husband could be linked-in by telephone to the hearing, but that was not successful. 

11. The wife now seeks orders requiring the husband to comply with the agreement, which I am informed she has reached.  I have no evidence of the agreement and it is not part of the material with which I am satisfied that the husband has been served.  However, the relief is within the ambit of the application which is before me on an unopposed basis. 

12. The wife seeks the injunctions set out in paragraph 6 of the application of which I am satisfied that the husband has notice.    In the context of s 114(3), I am satisfied that it is inconvenient to preserve assets pending the husband’s compliance with orders, save that such assets may be realised if the proceedings of that goes directly to satisfying his obligations.  That is best accommodated by providing that he may deal with them with the consent of the wife.

13. Otherwise, the wife seeks to adjourn the issue in relation to the car loan.  I make an order to adjourn the matter until 7 December 2009.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  18 September 2009