SHIPTON & SHIPTON

[2015] FamCA 920

FAMILY COURT OF AUSTRALIA

SHIPTON & SHIPTON [2015] FamCA 920

FAMILY LAW – PROPERTY – interim orders – where the husband seeks interim property settlement and urgent spouse maintenance – where the wife has not complied with the rules in relation to filing answering documents – where further discovery is ordered – where spouse maintenance is ordered – where the principle of “clawback” cannot yet be determined – where further consideration of spouse maintenance and interim property settlement is adjourned.

APPLICANT: Mr Shipton

RESPONDENT: Ms Shipton

FILE NUMBER: ADC 3073 of 2014

DATE DELIVERED: 20 October 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Weatherly & Associates

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Judith Jordan Family Collaborative Lawyer

Orders

1. By 4.00 pm on 6 November 2015 the wife to discover documents from the B Trust:

   (a)a full ledger with respect to the Beneficiary Loans (both to Ms Shipton and to Ms & Mr Shipton) from 1 July 2012 to present;

   (b)a full ledger and bank statements with respect to the Head Office Loan from 1 July 2012 to present.

2. By 4.00 pm on 6 November 2015 the wife provide further and ongoing discovery the following documents:

   (a)all documents and communications with the Australia Taxation Department (“ATO”) and or relevant tribunals with respect to that outstanding payroll tax liabilities debt of the C Group, or any individual entity thereof;

   (b)all documents and communications between Pace Lawyers and the ATO with respect to the outstanding payroll tax liabilities of the C Group, or any individual entity thereof.

3. During the period of the adjournment the wife Ms Shipton is to pay to the husband Mr Shipton spouse maintenance in the sum of ONE THOUSAND TWO HUNDRED AND TWENTY EIGHT DOLLARS [$1,228.00] each week and is to pay the first payment on or before Wednesday 21 October 2015 such payment to be paid to an account to be nominated by the husband this morning and provided in writing to the wife’s solicitors this morning.

4. Further consideration of spouse maintenance and interim property settlement is adjourned to Wednesday 9 December 2015 at 9.15 am before the Honourable Justice Dawe.

5. The wife to file and serve any response and responding affidavit upon which she seeks to rely by 4.00 pm on 18 November 2015 together with an updated Financial Statement.

6. The husband to file and serve any further affidavit upon which he seeks to rely by 4.00 pm on 4 December 2015.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3073 of 2014

Mr Shipton

Applicant

And

Ms Shipton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me now the application filed by the husband on 14 August 2015, which seeks urgent spousal maintenance and interim property settlement orders, together with orders in relation to discovery and the provision of documents.

2. I am told that the matters in relation to the question of discovery can be resolved and I propose, therefore, to order substantially in terms of paragraphs 5, 6 and 7 of the Application in a Case, but taking into account the failure of the parties to obey the rules of this Court and the need, therefore, to make sure that the wife’s solicitors comply with the rules, I am going to give specific dates as to the need for compliance.  Taking into account the period of the adjournment that I am granting, I would propose that the wife comply with paragraphs 5 and 6 by 4.00 pm on 6 November, so that by 4.00 pm on 6 November 2015, the wife do discover the documents from the B Trust set out in paragraph 5 of the application and further provide discovery of the documents set out in paragraph 6 of the application.

3. It is noted that in lieu of paragraph 7, the wife’s solicitors will make the documents available to the husband’s solicitors in the wife’s solicitor’s office to enable them to be scanned, rather than incur the cost of photocopying. 

4. The matter that then has to be determined is whether to adjourn all of the proceedings to enable the husband to file answering documents.

5. The wife has not complied with the rules in relation to filing answering documents, nor has she complied with the order of the Registrar of this Court providing for the wife to file and serve answering documents within 21 days of 8 September 2015.  There is limited explanation before the Court as to the excuse, if any, for the failure to do so.

6. There is significance in the documents filed on behalf of the husband seeking the urgent spouse maintenance and interim property settlement orders.  It would appear from his affidavit material that he is in need of support due to his significant health issues, and that the arrangements which he proposes for moving to accommodation, which would assist him and the child of the parties, are significant.  This is the material that I have before me.  I take that into account, there being no material filed on behalf of the wife.

7. The material that is before the Court indicates that the wife certainly has a capacity, as she has the full control of the business operated, and the full control of substantial real estate assets.  There are, however, issues to be determined as to the debts incurred and owing by the wife.  In due course they will, no doubt, be able to be determined if and when there is full compliance with the rules and orders of this Court providing the necessary evidence.  However, I accept that the husband’s case is and appears uncontested, that the wife has been drawing significant sums from the business, and these have been in the rate of $3000 to $4000 per week.

8. When making an urgent maintenance order, I take into account the question of urgency and the information that is available to me as to the capacity of the parties to earn income and the various financial needs and financial resources of the parties. 

9. In relation to the urgent application for spouse maintenance I consider that during the period of the adjournment, it will be appropriate to make the spouse maintenance order.  I was asked to back-date it to the time of the application, but as much of the spouse maintenance sought relates to seeking other accommodation, I do not consider it appropriate to back-date the payments to the time prior to the husband obtaining that other accommodation.

10. In relation to the further consideration of any question of urgent spouse maintenance, all spouse maintenance will be considered on the adjourned date. 

11. The other question then relates to what interim property orders are sought.  It was submitted that the Court was in a position to make the orders in (a), (b) and (d) of paragraph 4 of the application, because the Initiating Application of the wife offered a payment of some $60,000 to the husband.  However, in the submissions on behalf of the wife, it was pointed out that the husband has already received an interim payment of $30,000, pursuant to an order of the Court.

12. The other matter which is of concern is the need for the Court to ascertain that any order by way of property settlement is just and equitable in all of the circumstances.  The difficulty that the Court has in making that determination on an interim basis is the paucity of information which could be considered accurate concerning the wife’s financial circumstances.  Therefore, the Court would not be in the position to determine whether the payment of the sums in 4(a), (b) and (d) (which total just over $59,000) would be an order that could be made by way of interim property settlement.

13. Counsel for the wife refers to the principle of “clawback”, which can be reworded to say that if the husband is unsuccessful in obtaining the full amount, the wife would be able to recover the sum.  It would appear from the affidavit material currently before the Court, that that cannot yet be determined. 

14. I therefore consider that I am not in a position today to make the orders sought in paragraph 4, but will adjourn further consideration of that matter to the adjourned hearing date on 9 December at 9.15 am.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 October 2015.

Associate: 

Date:  27 October 2015