Stevens and Lewis

FAMILY COURT OF AUSTRALIA

STEVENS & LEWIS

[2011] FamCA 430

FAMILY LAW – PROCEDURAL – Whether current child and spouse maintenance orders should be discharged – Whether the former matrimonial home should be sold – Consideration of husband and wife’s financial situations - PARENTING - Whether the wife should be allowed to relocate the children to Brisbane – Whether issues should be determined at a final hearing

Family Law Act 1975 (Cth)

APPLICANT:

Mr Stevens

RESPONDENT:

Ms Lewis

FILE NUMBER:

SYC

448

2008

DATE DELIVERED:

9 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

4 March, 14 April and 9 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

COUNSEL FOR THE RESPONDENT:

Mr Richards

Orders

(1)Order 1 of the court made on 9 April 2008 and order 1 of the court made on 17 July 2008 are suspended, from the date to which the orders stand paid, pending further order.
(2)That forthwith the wife shall do all acts and things and sign all documents necessary to market for sale and sell the property known as and situate at B Street, Suburb C in the State of New South Wales being the whole of the land contained in Folio Identifier … (“the property”) and in particular will:
a.Continue to list the property for sale with the agent presently appointed and the wife shall instruct the agent to keep the husband informed (“the agent”).
b.The wife shall execute all documents requested by the agent for the sale of the property.
c.The wife shall give such instructions as are necessary to a solicitor appointed by her and the wife shall instruct the solicitor to keep the husband informed (“the solicitor”).
d.The property shall be marketed for sale by public auction on or before 2 July 2011(“the first auction”).
e.The reserve price of the first auction shall be as agreed between the parties and failing agreement in the sum of $1,700,000.
f.In the event that the property does not sell at the first auction the property shall be marketed for sale with the agent by way of private treaty for a further period of 12 weeks during which time the wife shall accept any offer made to purchase the property within 5 per cent of the reserve price of the first auction unless the husband and wife otherwise agree.
g.In the event that the property is not sold at the first auction and is not sold in the period provided for sale by private treaty the wife shall list the property for sale by public auction within 8 weeks of the conclusion of the period for sale by private treaty (“the second auction”).
h.The reserve price for the property at the second auction will be 5 per cent below the reserve price of the first auction unless the husband and the wife otherwise agree.
i.The wife shall attend any auction pursuant to this Order and in the event that the reserve price set for that auction is not reached shall negotiate with the highest bidder and shall accept any offer to purchase made within 5 per cent of the reserve price set for the auction unless the husband and wife shall otherwise agree.
j.The wife shall execute the contract for sale.
k.The wife shall co-operate in every way with the agent in relation to the sale of the property at all times requested by the agent and ensure that the property is in a neat and clean condition.
l.The wife shall execute all other documents necessary to complete the sale within the time required by the contract for sale to ensure that the purchasers do not have a right to terminate or rescind due to failure to do so.

(3)That on settlement of the sale of the property the proceeds of sale be paid in the following manner and priority:
a.agent’s commission;
b.advertising expenses including the reimbursement of any that has already been paid;
c.costs of cleaning, redecorating and improvement of the presentation including the reimbursement of any that has already been paid provided that the total payments not exceed $15,000 and receipts and/or invoices be presented to the husband prior to settlement.;
d.legal costs and disbursements of the sale and the discharge of the mortgage;
e.discharge of the mortgages;
f.the amount necessary to discharge the debt of the parties due to Mr D Lewis
Investments Pty Limited in its capacity as the trustee of the E Lewis Family Trust and D Lewis Family Trust; and
g.Balance to be held in a controlled monies account conducted by the wife’s solicitors pending further order.

(4)That the husband and wife do all things and sign all documents necessary to give effect to the orders made herein.
(5)That in the event that either party refuses or neglects to sign any deed or instrument necessary to give effect to the orders herein with fourteen days of a written request to do so, then the registrar of the court is appointed pursuant to section 106A of the Family Law Act to execute such deed or instrument in the name of such a party and do all acts and things necessary to give validity to the operation of the deed or instrument.
(6)The parties be at liberty to apply to the court on seven days notice for implementation of these orders.
(7)The final hearing of the parties’ parenting applications and property dispute is expedited.
(8)The family consultant is to prepare a family report that addresses the following topics:
a.The nature of the relationship between each child and each parent and other significant adult.
b.The relationship between the parents and an assessment of their capacities to communicate with each other appropriately in relation to the children.
c.The parenting capacities of each parent.
d.The willingness and capacity of each parent to support the children having a relationship with and spending meaningful time with the other parent.
e.A report on the views and perceptions of the children in relation to:
i.The time they spend with each parent;
ii.Relocation of the children with the mother to Brisbane.
iii.Living predominately with their father if only mother were to relocate to Brisbane.

f.An opinion as to the weight which the Court might give to the children’s wishes/views.
g.The impact on the children of relocating to Brisbane with the mother.
h.The impact on the children of living predominately with the father if only the mother were to relocate to Brisbane..
i.Any recommendation the Family Consultant may wish to make in relation to the time and circumstances in which the children might live with or spend time with each parent.
j.Any other matter which the Family Consultant considers the court should know.

(9)I note that interviews with the family consultant are scheduled to take place on 18 August 2011.

The application for interim parenting orders sought by each party is adjourned to a date to be fixed.

IT IS NOTED that publication of this judgment under the pseudonym Stevens & Lewis 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 SYDNEY

FILE NUMBER: SYC 448/2008

Mr Stevens

Applicant

And

Ms Lewis

Respondent

REASONS FOR JUDGMENT

Background

In this matter Mr Stevens (“the husband”) seeks orders as contained in exhibit “H1” being the husband’s draft minute of orders. The application seeks the discharge of orders made by the court, by consent, on 9 April 2008 and 17 July 2008. He seeks that Ms Lewis (“the wife”) discharge the mortgage on the property at B Street, Suburb C (“the former matrimonial home”). If the wife is unable to discharge the mortgage on that property then the husband seeks that it be sold.
The husband seeks that the wife’s response filed in court on 24 January 2011 (which inter alia seeks orders which would enable the wife to relocate the children to Brisbane) be dismissed and in the event that it is not, that an order be made for the children of the marriage, F born in 1999, G born in 2001 and H born in 2003 (“the children”) reside with him.
The orders which the husband seeks to have discharged provide for the husband to pay, by way of child support assessment, $200 per week per child, all education expenses in respect of the children, all instalments, at the present scale, to the private health fund and any other sums which the husband might determine from time to time. That order was to be increased annually having regard to consumer price index increases.
In addition, the orders provided for the husband to pay all monthly instalments on the mortgage on the former matrimonial home, all municipal and water rates, building and contents insurance on the property and comprehensive insurance in respect of the motor vehicle registered in the wife’s name.
The orders of 17 July 2008 require the husband to pay $480 per week by way of interim spouse maintenance to the wife. It is those orders, as referred to above, which the husband is also seeking to have discharged.
In the wife’s response to an application in a case, filed 24 January 2011, she seeks orders for the husband to pay all arrears owing pursuant to the orders of 9 April 2008 and 17 July 2008. At the date of filing the wife claims those arrears amount to $39,494. The wife also seeks that there be an enforcement fund established with a sum of $100,000 as security for the husband’s requirement to pay the current orders of the court. The wife seeks orders against I Pty Ltd (“I Pty Ltd”) for the payment of funds to the husband in the event of the husband failing to create the $100,000 enforcement fund as sought by the wife. The wife seeks that in the event of the orders, sought by her in relation to enforcement, not being made, she be permitted to relocate with the children to Brisbane. She seeks consequential orders for the children to spend time with their father.
On 3 March 2011 the husband filed a case outline document. In that document the husband identified the material upon which he relied as follows:
a)Financial statement of the husband sworn 27 September 2010;
b)Affidavit of the husband sworn 7 February 2011; and
c)Affidavit of Ms J sworn 7 February 2011.
On 3 March 2011 the wife filed a case outline document. In that document the wife identified the material upon which she relied as follows:
a)Affidavit of the wife sworn 6 January 2011;
b)Financial statement of the wife sworn 21 January 2011;
c)Affidavit of the wife sworn 3 March 2011;
d)Expert report by Ms K sworn 9 October 2009;
e)Children and Parent Issues Assessment dated 26 February 2010;
f)Joint Chronology filed 11 October 2010; and
g)Joint Balance Sheet filed 11 October 2010.
A summary of each party’s position is succinctly described in the case outline document filed on behalf of the husband. That description is as follows:
The proceedings were instituted by the husband to discharge interim orders made by consent on 9 April 2008 and 17 July 2011 which required him to pay periodic child support, educational expenses, private health cover, mortgage repayments and other outgoings in respect of the former matrimonial home at [B Street, Suburb C] and interim spousal maintenance to the wife of $480 per week. The husband also seeks that the wife discharges all mortgages secured against the former matrimonial home and that if she fails to do so the former matrimonial home be sold.
The wife seeks that the husband’s application be dismissed and if it is not, she seeks to be permitted to relocate with the children of the marriage to Brisbane, Queensland and in this event for the husband to spend specified periods of time with the children. This will significantly impact upon the current and formal agreement between the parties whereby the husband spends time with the children from after school Wednesday to before school Thursday each week and on each alternate weekend from after school Friday to before school Monday.
The husband seeks the dismissal of the wife’s application to be permitted to relocate the children to Brisbane and if such application is not dismissed that the children live with him in Sydney and that the wife spend specified periods of time with the children.
It is the husband’s case that following the consent orders made on 9 April 2008 and 17 July 2008, the orders were complied with until October 2010. He says almost all payments made by way of child support and interim spousal maintenance came from funds sourced in L Pty Ltd (“L Pty Ltd”). It is the same source of funds which the husband has drawn on to meet the mortgage payments to the ANZ Bank in respect of the former matrimonial home. The husband contends that L Pty Ltd’s funds were exhausted in October 2010. He says that currently his only income is from his employment with I Pty Ltd where his salary is $90,000 per annum. The husband says he does not have sufficient income to meet all the payments required by the current court orders.
It is the husband’s case that during the last 10 years he has only had two sources of income:
a)Salary and profits from I Pty Ltd; and
b)Profits/Distributions from the family investment vehicles, the Stevens Family Trust and L Pty Ltd.
The husband claims the global financial crisis has adversely affected the trading and profitability of the abovementioned companies. Since 2007 the husband says he has not received any cash distributions or dividends from either the Stevens Family Trust or L Pty Ltd.
Although acknowledging there is a dispute between the parties as to whether the husband’s interest in a properties at Suburb M and Suburb N should be included in the balance sheet of the parties’ assets, the husband says that without those inclusions in the net pool of assets available for distribution between the parties (this is in the vicinity of $100,000) he has no other resources available to meet the current orders of the court.
As stated earlier, the husband seeks that the wife discharge the mortgages to the ANZ bank in respect of the security over the former matrimonial home. In the event that she is unable to do so then it appears the mortgagee will move to sell the property.
It is the wife’s case that should the former matrimonial home be sold she will need to move to Brisbane with the children where she will have both the emotional and financial support of her family. The husband says this would impact severely on his relationship with the children because since separation they have spent extensive periods of time in his care. The husband further says that he would not be able to relocate himself to Brisbane because it would be severely detrimental to his business and family life.

Affidavit of the Husband filed 7 February 2011

The husband relies on his affidavit filed 7 February 2011. The following evidence is particularly noted from that document.
The parties were married in 1999 and separated in May 2007. There are three children of the marriage.
The husband’s primary source of income is through employment as a property developer with the company I Pty Ltd. The husband and wife (indirectly) own 50 per cent of that company.
Since the orders made in April and July 2008 the husband’s obligations under those orders have been met by L Pty Ltd providing the funds.
The payments made to the wife pursuant to the orders made in April and July 2008 are recorded as loan draw downs by the husband and wife in L Pty Ltd’s financial records. Those loan accounts now exceed $1 million. The source of the funds, in the company L Pty Ltd, has been retained earnings for the period 2003 to 2007. There are no funds left from that source or any other source in L Pty Ltd.
No payments have been made pursuant to the orders of the court since October 2010 when the funds in L Pty Ltd were exhausted. The husband says he has no other source of funds, apart from his income of $90,000 per annum from I Pty Ltd, to meet the orders.
The husband says that since 2007 he has not been able to pursue any property development as projects have not been feasible or fundable. In 2009 and 2010 he sought advisory work with limited success. He has looked at establishing other businesses to increase his income but has not been able to do so.
In 2010 I Property Fund Pty Limited acquired a retail development site at Suburb O on the Region P. External investors provided the bulk of share funds for this project and I Pty Ltd retained around a 20 per cent interest which was to reduce to 10 per cent if the project was built. Ultimately, after council refusal on the original plan the project was abandoned. It may be that in the future a more profitable project on that site can be pursued.
As at December 2010, I Pty Ltd had $400,000 in cash as part of its assets. It had liabilities of $1.7 million. The cash is committed to funding the company’s ongoing costs for the next 6 months. If the company does not acquire new projects in the near future it is likely to fail.
The husband says he has been unable to make any payment to the wife pursuant to the orders of April and July 2008 since 18 August 2010. He has not made any mortgage payments in respect of the ANZ mortgage over the former matrimonial home since October 2010.
On 18 January 2011 the husband commenced paying $500 per week to the wife via the Child Support Agency.
Since the separation the children have lived with the wife and spent time with the husband as follows:
c)From after school Wednesday to before school Thursday each week;
d)Each alternate weekend from after school Friday to before school Monday;
e)One week in each mid term school holiday period;
f)Two weeks in Christmas School holidays; and
g)Other arrangements for birthdays, mothers day and fathers day.
The husband in his affidavit sets out matters relating to the proposed move by the wife to Brisbane and I will refer to those matters after reviewing the evidence from the wife.

Financial Statement of the husband

The husband’s financial statement sworn 27 September 2010 discloses that he has a gross weekly income of $1,130 per week. His partner, Ms J has an average weekly income of $300.
The husband pays tax of $500 per week and rent of $1,300 per week. He claims a payment of $500 per week as minimum payment in respect of a Visa Credit Card. In short, the financial statement paints a picture of the husband’s expenses vastly exceeding his available income. No fund is identified, in that financial statement from which a lump sum might be paid to meet the arrears of the current court orders or to create a fund from which periodic payments of spouse and child maintenance might be met.

Affidavit of Ms J sworn 7 February 2011

The husband relies on an affidavit by his partner, Ms J sworn 7 February 2011. She attests to being employed on a casual basis for Q Pty Ltd and for I Pty Ltd. Ms J and the husband commenced living together in December 2007 and became engaged on New Year’s Eve 2010. She uses her income to help support herself and to contribute to the cost of food and other living expenses for herself and the husband. She supports the husband in the care of the children when they are with him. She attests to a good and close relationship between the husband and the children. She would participate with and support the husband in caring for the children full time if such an arrangement was put in place.

Affidavit of the Wife Sworn 6 January 2011

The wife swore an affidavit in the proceedings on 6 January 2011. In relation to the husband’s application to discharge the financial orders, as above referred to, the wife set out the following relevant facts.

The parties commenced their cohabitation in 1996 and were married in 1999.At the time the parties commenced their cohabitation the wife was a health care professional although she had never been employed as such. She also completed a health related course. She was employed at the time the parties commenced their cohabitation. She later obtained employment at the at the R Hotel. She ceased that employment in September 1999. She has not worked again until recently. She is now employed as a casual sales assistant as outlined in her financial statement filed in proceedings.
The wife attests to the fact that prior to separation she considered the parties enjoyed a high standard of living. They travelled extensively in the four years prior to separation. The wife had access to the parties’ joint account and credit cards for the purposes of acquiring items to support the family.
Post separation (27 May 2007) the husband provided periodical support of $2,000 per week for the benefit of the wife and children. On 22 August 2007 he reduced that to $1,000 per week and a short time later to $600 per week.
Following the orders being made in 2008 the husband paid the amounts required, although frequently fell into arrears. Until September 2010 the wife asserts the amounts owing under the orders as at 6 January 2011 was $36,709.
The wife has supported herself and the children since September 2010 by relying on her income which she commenced to generate in about April 2010 as a casual sales employee. She has also borrowed monies from her mother since October 2010 which by 29 November 2010 had amounted to $7,350. Additionally, as at January 2011 she owed $19,398 on her credit card and now has a limit of $22,000.
During school holidays the wife is unable to work and therefore has no income from that source. She has used all her savings and monies that had been saved in the children’s account totalling $2,274.20. She has withdrawn the child H from S School.
Although being a discretionary beneficiary of the E Lewis Family Trust the wife has received no distribution from the trust since the year ended 30 June 1998.
The wife says she is the proprietor of a property known as T Street, Suburb M. She says she holds that property in trust for the D Lewis Family Trust. All costs of purchase were provided by the D Lewis Family Trust. The wife says she has never received income from the property and she has no control over who occupies the property.
The wife provides evidence of the husband having a very high income in prior years particularly between 2004 and 2007.
The wife points to the fact that in recent times the husband and his defacto partner have moved to a new residence at Suburb U which they lease for $1,300 per week and that the husband drives a luxury motor vehicle. That vehicle is apparently used by his partner and recently the husband arrived to collect the children in a SUV.
The wife points out that the husband is a one third owner of a property in Suburb N which is occupied by his mother.
The wife says that in the past the husband, through L Pty Ltd, has owned valuable horses. In June 2008 he proposed to sell 14 horses for $1.65 million. The wife annexes a line of correspondence relating to those sales.
The wife sets out a history of disclosure by the husband which may be described as tardy and untimely.

Relocation of the children and the wife to Queensland

In the event of the orders being set aside as sought by the husband the wife seeks an order permitting her to relocate the children and herself to Queensland. In relation to that matter she says as follows.
She has encouraged the children to have a positive and meaningful relationship with the husband at all times. She says that the children and the husband have a good relationship. She says they enjoy spending time with him. She is confident that in the event of relocation to Queensland the relationship between the husband and the children will remain strong.
The wife says that most of her family continue to live in Queensland. She sets out details of close relatives who live in the suburbs of Brisbane. Her mother and sister live in the family home on a property outside V Town. That is a one and a half hour trip from Brisbane.
The wife proposes that she would rent a property near her sister Ms W in Suburb X, a suburb of Brisbane. She annexes documents which she says illustrates properties that would be acceptable to rent for her and the children. The rental would be about $450 per week.
In Brisbane the wife would seek employment with “a home care agency.” She proposes the children attend Y School at Suburb Z. The total school fees for all three children would be $3,418 per year. Her sister’s children attend the same school.
The wife’s sister and her cousins could assist her in the care of the children should she need out of school occasional care. This would save her the cost of babysitters. Her sister could also assist in the transport of children for extra curricular activities.
The wife says that the husband’s company I Pty Ltd has an office in Region P and that it would not be impossible for the husband to move to Queensland.

Affidavit of the wife sworn 3 March 2011

In her affidavit sworn 3 March 2011 the wife updated her allegation of arrears outstanding under the current orders and child support to a total of $32,477. She acknowledged that the husband has paid $3,000 in reduction of the arrears.
The wife says that her proposal for the children’s school in Brisbane is not affected by the recent floods nor is her proposal in relation to the area in which she is seeking to live.
If required to relocate within the Sydney area the wife says she would have to move to an area which is far cheaper. That would physically estrange her from any friends and support she might have in her current location. It would also put the children into an entirely new environment. The move to Brisbane would at least see the children in close proximity to and interacting with cousins and close relatives and likewise for the wife.
On 24 February 2011 the wife was served with a section 57(2)(b) default notice by the ANZ Bank in relation to the mortgage on the former matrimonial home. The claimed arrears are $20,294.81.
In her affidavit sworn 3 March 2011 the wife asserts that notwithstanding the breakdown of the relationship between the husband and her, the parties have been able to shelter the children from their conflict. The wife denies the children have any behavioural problems arising from the breakdown of the marriage.
The wife asserts that it was not until October 2007 that the children spent alternate weekends and Wednesdays with their father and it was in May 2008 that the current arrangements commenced.
The wife denies the husband’s assertion that she had abused the husband and his partner when the husband took his partner to a hospital with him to visit the parties child H who was about to undergo an operation. The wife thought it was inappropriate that the husband brought his partner to the hospital.
The wife asserts that the husband has unilaterally taken the children to psychologist Ms AA of BB Centre. She said the husband did not discuss it with her nor did he have her consent. The wife was informed by the children of their attendance upon that person. The wife further says that when she contacted BB Centre she was denied any information about the involvement of that organisation and the children without first obtaining the husband’s permission.
The wife denies the husband’s allegation that she had berated H and called her a bad girl on a particular occasion identified by the husband. She denies the husband’s assertions that she “went into a rage in front of the children” and “abused the husband” for being late.
The wife denies lack of appropriate care in relation to G’s knee and an infection which occurred after a holiday in CC Town. She asserts that as recently as 16 February 2011 the husband has taken G to the hospital having an asthma attack without informing her at the time.
The wife denies any allegation by the husband that she has either neglected or abused the children.

Husband application for Interim Parenting Orders

In relation to the husband’s application for interim parenting orders he says as follows.
Since May 2007 (the wife says a later date) the children have lived with their mother and spent time with him from after school Wednesday to before school Thursday each week; each alternate weekend from after school Friday to before school Monday; one week in each mid term school holiday period; two weeks in Christmas School holidays; and other arrangements for Birthdays, Mother’s Day and Father’s Day. This operates by way of informal agreement between the parties. The husband says the arrangement works well for the children, however, he would like to increase it to equal time.
The husband says that the children have a good relationship with his partner. She does not have children of her own. She has considerable interaction with the children while they are in the husband’s care including preparing meals for them. The husband and his partner were engaged on 1 January 2011 and are intending to marry in the near future. The husband sets out in intricate detail all of the activities he engages with the children during their time with him and sets out the time the children spend with his family. The husband sets out his submissions as to why equal shared time would be appropriate for the children.
The husband is opposed to the wife being permitted to relocate the children to Queensland. He says the wife has seven siblings and one parent (her mother) and that five of the nine members of the applicant’s immediate family live outside the state of Queensland.
The husband says that the wife has lived in Sydney for approximately 20 years and has never lived in Brisbane. Two of the wife’s brother’s live in Sydney and neither has any children. Two of her sisters reside in Sydney and neither has any children.
The husband asserts that the wife visits her mother in V Town with the children at least three times a year. This invariably includes Christmas when most of the wife’s family visit their mother in V Town. The wife’s mother visits Sydney at least twice a month and visits the children frequently.
The husband has one brother and one parent (his mother) and both reside in Sydney. The children frequently see those family members.
The husband enumerates a number of complaints about the wife’s parenting. He specifies an incident on 7 July 2009 which he says occurred when H was scheduled to undergo an operation on her nose. He says that the wife, in the presence of H, addressed the husband and his partner at the hospital with the words, “How dare you come here, you have nothing to do with [H], get out.” The husband and his partner left the premises, however, before doing so the wife followed them outside and “continued to abuse” them.
The husband attests that he considered that it would be of benefit to the children to visit a child psychologist. He did research and found Ms AA at the BB Centre. The husband and his partner had an initial consultation with Ms AA. They arranged for the children to attend a workshop on Saturday 18 July 2009. The husband arranged for F to have a further meeting with Ms AA on 14 August 2009.
Contrary to the wife’s denials, the husband claims that on each appointment he notified the wife. He asserts that she said “I don’t see any need for that as the children are coping.” The husband asserts that on the day of Fit OK’s appointment with Ms AA the wife attended “impromptu.” He said that she became angry in the room. The husband details other incidents involving the children which he says demonstrate inappropriate parenting on the part of the wife.
Paragraph 130 to 178 of the husband’s affidavit in response to the wife’s affidavit sworn 6 January 2011, consist of denials of evidence on the part of the wife, assertions as to the wife’s independent wealth (an heiress to $20 million) and reaffirmation of the facts set out in the husband’s affidavit material.
The husband asserted that I Capital Pty Limited did not fund any projects, has withdrawn from the finance market and only undertook a single advisory project during the 2009/2010 financial year. The husband gave evidence about his motor vehicles and asserted that the four wheel drive motor vehicle he currently uses is owned by I Pty Ltd. He said it was included in the Deloittes’ valuation of that entity.
In relation to the Suburb N property, in which the husband holds a third interest, he asserts that he holds that interest on trust for his mother. He denies that either he or any corporation in which he has an interest has been financially involved in horse racing or horse breeding activities since 2009. The husband confirms that whilst it would not be impossible for him to move to Queensland it would be severely detrimental to his business and family life. All his business contacts are in Sydney as is his family. Whilst agreeing that he travels to the Region P regularly this is not to Brisbane which is still some considerable distance from the Region P.

Notations

The parties asked the court to note an agreement between them that the bank accounts for I Pty Ltd, as at 31 March 2011, stood in credit of $416,116.

Exhibits

Exhibit “X1”

The court was asked to note that in the event of the court discharging the financial orders currently encumbent upon the husband, as sought in his application, then the wife seeks that I should order the sale of the former matrimonial home. If the property is to be sold the parties agree that an order should be made in accordance with exhibit “X1”. It is further agreed that if the property is to be sold then the wife should remain in the house until the sale is complete.

Exhibit “AB1” and “AB2”

Exhibits “AB1” and “AB2” were tendered by the wife. Exhibit “AB1” is a letter dated 4 April 2011 and addressed to Mr DD. The letter was sent by facsimile. The letter advises Mr DD that in relation to the proceedings currently before the court the wife’s application of 1 April 2011 was adjourned. It advises that the hearing is now due to take place at 10.00 am on 14 April 2011.
Exhibit “AB2” is a letter to Mr DD dated 11 April 2011. Again it specifies that it relates to the proceedings of Stevens and Lewis in this court. It advises Mr DD that the proceedings are listed for hearing on 14 April 2011 and that Mr DD is required for cross examination on that date. It advises that Mr DD is required for cross examination should he seek to oppose the relief sought against I Pty Ltd and/or himself and should he seek to rely on the affidavit sworn by him on 16 March 2011. Mr DD did not attend at court on 14 April 2011.
Mr DD filed an affidavit on 21 March 2011. That affidavit was apparently in response to the wife’s response to an application in a case, filed on 24 January 2011, in which she seeks an order against I Pty Ltd that within 48 hours it cause to be paid to the husband by way of debit to his loan account, or such other means as the company may determine, the sum of $100,000. Mr DD is currently not named as a party to proceedings. Mr DD is apparently an owner or director of the company EE Pty Ltd Pty Limited (“EE Pty Ltd”) which owns half of the shareholdings in I Pty Ltd.
On 14 April 2011 the husband sought leave to rely on the affidavit by Mr DD although the affidavit was not filed by or on behalf of the husband but filed by Mr DD directly. That application was opposed by the wife.
In the determination of that application I said that there appeared to be no issue that Mr DD was a director of I Pty Ltd. I refused the husband’s application to reopen his case for the purpose of relying upon the evidence of Mr DD. The husband then tendered the document which was marked as exhibit “H3.”
Exhibit “H3”
Exhibit “H3” is a letter dated 10 July 2007 and signed by the husband as sole director of the company FF Pty Ltd (“FF Pty Ltd”). The letter evidences an agreement between FF Pty Ltd and EE Pty Ltd the two equal shareholders in I Pty Ltd. The agreement relates to the loan accounts in the I Pty Ltd. At a time prior to 10 July 2007 the two companies EE Pty Ltd and FF Pty Ltd were owed collectively $1.5 million by the company I Pty Ltd. EE Pty Ltd agreed to I Pty Ltd paying out $500,000, on behalf of FF Pty Ltd, in order to meet loan commitments by that company. That left the company I Pty Ltd owing both EE Pty Ltd and FF Pty Ltd the sum of $1 million. FF Pty Ltd agreed that the next $500,000 to be repaid by I Pty Ltd to the two companies, holding the shares in I Pty Ltd, would be paid solely to EE Pty Ltd.
The relevance of exhibit “H3” is that I Pty Ltd has current cash assets agreed between the parties at $416,116. The husband’s case is that those funds are not available for payment to FF Pty Ltd or the husband because of the commitment entered into by FF Pty Ltd as evidenced in exhibit “H3”. The funds standing in the bank account on a winding up would, on the submissions of the husband, be payable to EE Pty Ltd.
Therefore, the matter to be determined by the court is whether the court has power to make an order requiring I Pty Ltd to make a payment to the husband (as sought by the wife) in circumstances where the husband has no clear entitlement to those funds on the evidence before the court.

Child Responsive Program Memorandum dated 26 February 2010

On 18 January 2010 family consultant, Ms GG met with the parties and the children. On 26 February 2010 a report was provided but not verified by affidavit. In that report I note that the children presented as happy well adjusted children. I note that the possibility of the children living in Queensland was attractive to all of them. However, that was in light of an understanding that they would continue to have regular and substantial amounts of time with their father. I also note that they considered the current arrangements work well. I note they said it would be “alright as well” to spend more time with their father.
The family consultant recorded “both parents said that they believe the other is a good parent who has strong relationships with the children and who consider the children’s need in their daily care of them.” Having read the father’s affidavit that no longer appears to be the concession he is prepared to make in favour of the wife. As referred to earlier the child responsive program memorandum has not been sworn by the family consultant. Further on page 1 of the document is a heading “Admissibility” and under that heading are four boxes which required marking in order to comply with section 11C of the Family Law Act 1975(Cth) (“the Act”). Those boxes are not marked and consequently the exemptions within section 11C to the inadmissibility of the document are not triggered and therefore the contents of the document are inadmissible. Consequently, I do not take into account any of the material contained therein. That course creates a problem for the court as there is no objective evidence, from a properly qualified person, in relation to important matters specified under section 60CC of the Act which the court is required to take into account in determining an application in relation to children.

Submissions

In submissions each counsel relied on their written submissions and then addressed those further.
The wife addressed first. She sought as her primary position the enforcement of the court orders requiring payment by the husband as referred to earlier in these reasons. If enforcement could not occur then the wife acknowledged that the former matrimonial home should be sold. If the property were to be sold, the wife and children would no longer be able to reside there. The wife says in those circumstances the only way she can properly support herself and the children is to relocate to Brisbane.
The wife submits the husband ceased making any payments pursuant to the orders dated 9 April 2008 and 17 July 2008 in September 2010. There is no issue about that fact. The wife concedes that no payment has been made following that date with the exception that the husband is now paying, as a recent event, $500 per week child support. The wife says that the mortgage is in arrears in excess of $20,000.

In relation to the husband’s capacity to pay the wife and his assertion that he has no such capacity, the wife points to the fact that the husband has an income of $90,000 per annum. The wife submits the evidence establishes that since September 2010 the husband has made bets on Sporting Bet totalling $3,343 (this is conceded by the husband), he and his fiancée holidayed in Bali for 8 days (conceded by the husband), the husband and his fiancée lived in a property rented for $1,300 per week and more recently in another property rented at a cost of $900 per week (this is conceded by the husband), the husband drives a luxury motor vehicle paid for by his business, the husband pays $583 per month as gym membership/parking space at the HH Hotel (husband says this is cheaper than paying parking in his building and it is a business expense) and the husband has paid legal fees.
The wife extracted details from the subpoenaed records produced to the court in relation to the husband’s credit card. The husband concedes that the table contained in the wife’s written submissions in relation to his credit card payments is correct. The wife draws the court’s attention to all those entries from the 22 September 2010 to 31 December 2010. Such entries being made at a time when the husband was not making any payments pursuant to the court orders. When considering the expenses shown on the credit card from 3 October 2010 it is difficult to determine whether they represent excessive spending on the part of the husband, in circumstances of this case. On the face of it, some of the entries appear to have that character. However, there may be some explanation associated with the husband seeking to generate income.
The wife sets out a table which demonstrates the payments made by the husband between 4 October 2010 and 17 December 2010. In that period the husband paid on his credit cards a total of $14,644.
In relation to I Pty Ltd the wife asserts that the 2010 financial statements (as they appear at tab 2 of the wife’s exhibited material) disclose that the company made a profit before tax in 2009 of $375,648 and in 2010 of $85,285. Further it discloses that at 30 June 2009 the company held cash at bank of $2.2 million without any liability to any financial service provider. In the year ended 30 June 2010 approximately $800,000 of shareholders loans to the company were returned to the shareholders. In that same year $800,000 was invested by the company in a new development project. As referred to earlier I Pty Ltd has credits in bank accounts totally $416,116.
The wife is critical of the husband’s disclosure of necessary information to the court. She submits that the husband discloses no benefits from his employment in his financial statement relied on in the hearing. However, she says that it is clear that the luxury motor vehicle he drives is provided by the business. This was adequately demonstrated by the disclosures made by the husband to the Child Support Agency which now appear at Tab 4 of the wife’s exhibited material.
The wife says that the husband has deliberately failed to complete Part N of the financial statement document. Clearly that section of the financial statement document was relevant and apposite to the application before the court.
The wife criticises the husband for failing to explain why other consulting income earned outside of I Pty Ltd may not be available to him. I do not accept that criticism and the husband has now provided evidence in relation to same.
Further the husband is criticised for not adequately explaining how the property he owns with his brother and mother is not his property. I do not accept that criticism and the husband has now provided evidence in relation to same.
The wife submits that if the former matrimonial home is to be sold then there will be virtually no surplus funds which could be applied to reasonably house the wife and the children.
The wife makes lengthy and detailed complaints about the husband’s failure to make a proper and timely disclosure. In the confine of an interlocutory application, without cross examination, it is difficult to determine the extent to which any tardy provision of information was deliberate as opposed to consequential upon the husband’s reliance on other persons such as accountants and the like to produce the documents.
The wife submits that an updated list of documents served by the husband on 5 January 2011 provided discovery of 9,000 documents. Amongst those produced the wife ascertained that a new unit trust (I Unit Trust) had been established. That trust purchased a $3.5 million real estate parcel at Suburb O in Region P. I Pty Ltd invested $800,000 of its own funds in the development.
The wife says the husband has been silent about this project. In fact the husband has provided evidence in relation to same as set out in his affidavit. The wife acknowledges that in the husband’s affidavit sworn 7 February 2011 he does give some explanation about the company I Pty Ltd and its activities.
The wife submits that acceding to the order sought by the husband prevents the wife seeking the relief outlined by her in her application for final orders. She submits that it predetermines, without the benefit of a full hearing, the outcome of the property proceedings.
The wife points to the operations of L Pty Ltd. As at 30 June 2007 that company held livestock (being racehorses) which had cost $1.7 million. As at 23 June 2008 the husband sold the horses for $1.65 million. The wife says that sale is “suspicious” and outlines her reasons for calling it so. One of the pieces of evidence she relies upon is the fact that horses sold are still recorded as owned by the husband as set out at tab 14 of the wife’s exhibits.
The wife says that documents produced on subpoena show that one of the horses sold, namely II was subsequently sold in part to the husband’s fiancée on 15 December 2008. Eleven days later she received $150,000 in prize money in winnings for that horse. A month later she received a further $50,000. Further in 2010 at the JJ Sales sale the husband’s fiancée purchased a horse for $50,000.
The wife submits that section 83 of the Act is the section which determines how the court deals with an application in the nature of that pursued by the husband in these proceedings. Section 83 is as follows:
Modification of spousal maintenance orders
(1) If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a) made by the court; or
(b) made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c) discharge the order if there is any just cause for so doing;
(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e) revive wholly or in part an order suspended under paragraph (d); or
(f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(1A) The court's jurisdiction under subsection (1) may be exercised:
(a) in any case--in proceedings with respect to the maintenance of a party to the marriage; or
(b) if there is a bankrupt party to the marriage--on the application of the bankruptcy trustee; or
(c) if a party to the marriage is a debtor subject to a personal insolvency agreement--on the application of the trustee of the agreement.
(2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a) that, since the order was made or last varied:
(i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii) the circumstances of the person liable to make payments under the order have so changed; or
(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such;
as to justify its so doing;
(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba) in a case where the order was made by consent--that the amount ordered to be paid is not proper or adequate;
(c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
(3) Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first-mentioned order is made for the purpose of giving effect to this Part.
(4) In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5) The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
(5A) In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:
(a) the other party; or
(b) any other person for the benefit of the other party.
(6) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
(6A) Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date, being moneys that would not have been required to be paid under the second-mentioned order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act.
(6B) Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.
(7) For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.
(8) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

Section 83(2) sets out the requirements that must be satisfied before an order is made increasing or decreasing the amount of a maintenance order.
The wife submits that the husband has involved himself in flagrant disregard for his obligation to make a full and frank disclosure to the wife and the court. The wife submits that consequently the court should dismiss the husband’s application.
The wife then addresses the question of relocation of the children’s residence to Queensland. In paragraph 6.6.4 of her written submissions the wife sets out details of flights undertaken by the husband between 6 January 2010 and 21 December 2010. The accuracy of that record is conceded by the husband. All the flights recorded there (thirty return trips to either Brisbane or the Region P) are conceded by the husband to have taken place. Further, the wife sets out another nine trips taken by the husband during 2010 to destinations other than Brisbane and the Region P. The evidence of those trips is then used as a platform for a number of submissions made by the wife in relation to the parenting issue.
The husband provided to the court on 3 March 2011 a case outline document which set out his written submissions. In those submissions the husband says as follows.
The husband states that almost all the payments made by way of child support and interim spouse maintenance were made as a result of funds being made available through L Pty Ltd. The husband says he has paid $235,720 to the wife through funds provided by L Pty Ltd. These funds have been paid since separation. In addition the husband says that he has paid $200,000 towards the mortgage payments since the date of separation. The husband says L Pty Ltd’s funds were exhausted in October 2010 and since that time he has not been able to meet the court orders in relation to payments to be made to the wife or on behalf of the children. The husband’s only income is now derived from I Pty Ltd where he earns a salary of $90,000 per annum.
The husband says that prior to the global financial crisis the Stevens Family Trust and L Pty Ltd earned substantial profits. Since 2007 there have been no actual cash distributions or dividends paid from either entity. It is submitted that I Pty Ltd has accumulated losses of $250,000 to December 2010. The company is currently searching for projects from which to earn an income.
I note in the report provided by Ms K dated 9 October 2009 she has valued the parties’ interests in L Pty Ltd and the Stevens Family Trust. At that date those assets had a net worth to the parties of $426,600. The assets chiefly consisted of credit loan accounts with L Pty Ltd. It is the husband’s case that those loan accounts have now been exhausted.
The husband says the evidence he puts before the court must establish that he has no assets capable of realising any funds which might be available to meet the court orders. His only available fund comes from his income from I Pty Ltd. The husband now pays $900 per week rent and is paying $500 per week in payments to the Child Support Agency.
The husband submits that the wife has an income of $720 per week as a casual sales assistant. I note that is during the weeks that she actually works.
The husband then addresses the matters relating to the children. He is opposed to the wife being able to relocate the children to Brisbane. He submits that he cannot relocate himself to the Brisbane area as this would be severely detrimental to his business and family life.

Further Oral Submissions

Each of the parties made further oral submissions.
The wife made further submissions in relation to the husband’s alleged failure to make proper disclosure.
The wife says that the husband’s Financial Statement must be wrong. She submits that he claims to have a gross weekly income of $1,730 and that his partner has a gross weekly income of $300. The husband then claims to be paying $500 per week in income tax and $1,300 in rent.
He also claims to be spending $500 per week as a minimum payment on credit cards. Otherwise $600 per week to cover the balance of his needs. The wife submits the husband has not demonstrated where the shortfall between expenditure and income is made up.
The wife points to the evidence produced as to the payment of legal fees by the husband. As at 9 January 2011 he had only paid $41,483. The debt at that stage was $76,375. The wife submits that the evidence suggests the husband has paid $34,891 in legal costs since 9 January 2011. She submits the husband’s other evidence establishes that these funds could not have come from L Pty Ltd.
The wife submits that the level of expenditure by the husband in 2010 does not support a finding that the husband’s financial resources have been restricted to his annual income of $90,000. On 17 December 2010 the husband paid $14,644 on his credit card.
The wife asks me to accept that in addition to the $416,000 held in the National Australia Bank on behalf of the company, the husband and/or I Pty Ltd have other funds which should be the subject of an order.
In her submissions the wife has addressed the husband’s failure to make proper disclosure. She submits that the husband failed to disclose the involvement of I Pty Ltd in the development project at Suburb O and the investment by I Pty Ltd of $800,000 in that project.
The husband’s affidavit sworn 29 November 2010 annexes correspondence between the solicitors. By letter dated 31 August 2010 the wife’s solicitors sought specific documentation from the husband including draft balance sheets, income tax returns and profit and loss statements for all of his related entities for the year ending 30 June 2010.
On 15 September 2010 the husband’s solicitor provided to the wife’s solicitor a number of specified documents including:
a)Bank statements for I Pty Ltd, Stevens Family Trust, L Pty Ltd and FF Pty Ltd;
b)Financial reports for Stevens Family Trust, FF Pty Ltd, I Pty Ltd and L Pty Ltd for the year ended 30 June 2009;
c)Individual tax returns for the husband for the year ended 30 June 2009;
d)Company tax return for L Pty Ltd, Stevens Family Trust, I Partner and FF Pty Ltd for the year ended 30 June 2009; and
e)Trust tax return for Stevens Family Trust for the year ended 30 June 2008.
Further documents were provided on 24 September 2010 as had been specifically sought and the husband noted that a list of discoverable documents would be provided in due course.
On 12 October 2010 the husband’s solicitor requested from the wife’s solicitor a series of specified documents. They included copies of bank statements, credit card statements, documents relating to the wife’s employment, financial reports and balance sheets together with tax returns for the years ending 30 June 2009 and 30 June 2010 for the Lewis family company and associated entities.
On 12 November 2010 the wife’s solicitor wrote to the husband’s solicitor inter alia stating the following:
There is an issue in these proceedings as to what your client’s real income and business activities are. Yet when we look at the list of documents there are obvious categories of documents missing including but not limited to.
A number of categories are there set out including “minutes of meeting of any of the companies in the [I Pty Ltd] group, joint venture agreements, commercial contracts and/or correspondence and business documents in relation to those entities. In that letter from the wife’s solicitors to the husband’s solicitors there is no acknowledgment of a request for production of documents by the wife.
On 17 November 2010 the husband’s solicitor wrote to the wife’s solicitor complaining that she had not provided the documents specifically requested by them in the letter of 12 October 2010.
In the husband’s affidavit sworn 7 February 2011 he sets out at paragraph 25 and following evidence in relation to I Pty Ltd. He discloses that over the past 10 years he has not received a dividend or profit from the company (I note this is an axiomatic statement as the husband is not a shareholder in that company). He has received a wage. He says that he has not been able to pursue any property developments schemes since 2007. Since the separation in 2007 the husband had not undertaken any new projects until January 2010 when I Pty Limited acquired a retail development site at Suburb O on the Region P. That project could not ultimately proceed because of council restriction on the type of building that could be erected on the site.
There is no evidence in the husband’s affidavit about a project under consideration or development at Suburb KK by the husband or by I. Exhibit “W6” is a copy of the unit holders’ agreement in respect of the Suburb KK residential land. The agreement is dated 1 September 2010. That document shows that I Pty Ltd has a 12.5 per cent interest in the project. It discloses that a contract had been entered into for the acquisition of land on behalf of the unit trust.
The husband in submissions said that the evidence referred to by the wife in relation to the Suburb KK development is evidence of the fact that the husband through I Pty Ltd is endeavouring to generate an income and improve his wealth. The bank statements produced in relation to I Pty Ltd do not disclose that I Pty Ltd have recently been successful in turning a profit from any ongoing projects.

The wife submits that removal of $100,000 from I Pty Ltd’s bank accounts to create a maintenance fund for the wife will not adversely impact the operations of the company. The wife submits that the husband either has or will have an entitlement to $100,000 through the ordinary operations of the company in due course. The wife relies on section 90AF of the Act to establish jurisdiction for the court to remove $100,000 from the accounts of I Pty Ltd to apply to the use of the husband and wife. Section 90AF provides as follows:
Court may make an order or injunction under section 114 binding a third party
(1) In proceedings under section 114, the court may:
(a) make an order restraining a person from repossessing property of a party to a marriage; or
(b) grant an injunction restraining a person from commencing legal proceedings against a party to a marriage.
(2) In proceedings under section 114, the court may make any other order, or grant any other injunction that:
(a) directs a third party to do a thing in relation to the property of a party to the marriage; or
(b) alters the rights, liabilities or property interests of a third party in relation to the marriage.
(3) The court may only make an order or grant an injunction under subsection (1) or (2) if:
(a) the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and
(b) if the order or injunction concerns a debt of a party to the marriage--it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and
(c) the third party has been accorded procedural fairness in relation to the making of the order or injunction; and
(d) for an injunction or order under subsection 114(1)--the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and
(e) for an injunction under subsection 114(3)--the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and
(f) the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).
(4) The matters are as follows:
(a) the taxation effect (if any) of the order or injunction on the parties to the marriage;
(b) the taxation effect (if any) of the order or injunction on the third party;
(c) the social security effect (if any) of the order or injunction on the parties to the marriage;
(d) the third party's administrative costs in relation to the order or injunction;
(e) if the order or injunction concerns a debt of a party to the marriage--the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted;
Note: See paragraph (3)(b) for requirements for making the order or granting the injunction in these circumstances.
Example: The capacity of a party to the marriage to repay the debt would be affected by that party's ability to repay the debt without undue hardship.
(f) the economic, legal or other capacity of the third party to comply with the order or injunction;
Example: The legal capacity of the third party to comply with the order or injunction could be affected by the terms of a trust deed. However, after taking the third party's legal capacity into account, the court may make the order or grant the injunction despite the terms of the trust deed. If the court does so, the order or injunction will have effect despite those terms (see section 90AC).
(g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters--those matters;
Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.
(h) any other matter that the court considers relevant.

Sections 90AF (3) and (4) of the Act sets out the limits of the operation of subsection (2).
Section 90AF (2) of the Act is limited to proceedings under section 114 of the Act. The order sought against I Pty Ltd being order 7 in the Minute of Interim Orders Sought by the Respondent Wife is an order requiring the company to pay to the husband the sum of $100,000. That order is not said to be sought pursuant to section 114 of the Act nor are any of the other orders sought by the wife expressed to be pursuant to 114 of the Act. Further the orders sought by the respondent against the husband are not otherwise apparently injunctions. The orders sought are not sought “to effect a division of property between the parties”. The order is sought in aid of enforcement of any arrears in the payment of the relevant court orders which may exist at the date of the order and any subsequent time.
The wife submits that exhibit “W3” would demonstrate that contrary to the husband’s affidavit material and his financial statement he continues to own four horses. I consider that on balance, the evidence would support a conclusion that the horses were part of the sale to Mr LL.
The husband, through his counsel made further oral submissions.
The husband reiterated the matters set out in his written submissions. He further pointed to the purpose of maintaining the former matrimonial home. It was submitted that the parties’ property is negligible if it be the case that the husband holds his interest in the Suburb N property in trust for his mother. He points out that it is acknowledged that there is virtually no equity in the former matrimonial home. The husband submits that he has no entitlement in the cash reserves of I Pty Ltd, at this time, because of the contract entered into between he and Mr DD which allowed the husband to draw $500,000 from the company ahead of Mr DD being permitted to draw anything. Thus the funds standing in the companies’ bank accounts (being less than $500,000) must be seen as Mr DD’s property and not the husband’s.
The husband submits that the wife’s legal representatives have misrepresented exhibit “H2”. He submits that on a proper understanding of that document it does not give rise to a conclusion that the husband has paid $35,000 more in legal costs since November 2009.
The husband submits that the expenditure represented by the credit card statements and the gambling accounts was not excessive in the circumstances of the husband’s income. Further submissions were made opposing the wife being permitted to relocate the children to Queensland upon the sale of the former matrimonial home.

Conclusion

Section 83 of the Act provides power for the court to discharge the orders sought to be discharged by the husband or to suspend the operation of the orders.
I have reached the conclusion that the husband has established a prima facie case to have the orders set aside. The wife has identified evidence which has the potential to defeat the husband’s application.
There are a large number of documents which have been relied upon, particularly by the wife, in the hearing of this application which has been heard as an interlocutory application. There has been no real opportunity to test the evidence relied upon by the husband.
In the hearing of an application the court is required to do justice as between the parties. In my view the way to achieve that, in this case, is to make an order suspending the operation of the financial orders made on 9 April 2008 and 17 July 2008, pending further order.
This matter will now progress to a final hearing in relation to the property applications and the application of the husband to discharge the financial orders made on the abovementioned dates. Should it transpire at the conclusion of that hearing that it was not appropriate to suspend the operation of the subject orders then the court can remedy any prejudice which might have flowed to wife, as a result of the suspension of the orders and the failure of the husband to make any payments since September 2010, through the orders which the court would make at that time.
The circumstances of this case and the fact that the court will make an order for suspension of the maintenance orders referred to earlier, ought to give rise to the expedition of the final hearing.
The facts presented to the court, at this time, suggest that the sale of the former matrimonial home is inevitable. So far as the wife is concerned, the effect upon her of a suspension of the orders and the refusal of her application to require the payment of $100,000 by I Pty Ltd to a maintenance fund means effectively the same as a discharge of those orders. The wife will have no funds from the husband other than a payment for child support of $500 per week. Consequently, the sale of the former matrimonial home will need to proceed. Before the wife is required to vacate that property at the completion of the sale it will be necessary to determine whether the wife can relocate the children to Brisbane.
In relation to the competing interim parenting applications I do not have sufficient information to properly make that determination given the potential harm which may be perpetrated on the children through the loss of society with their father at a level which they currently enjoy. Therefore, I propose to order that a family report be prepared as a matter of urgency. I will invite the parties to participate in formulating the matters which are to be addressed in a family report. Once that family report is available the court will be in a better position to consider the question of relocating the children to Brisbane.
On 9 June 2011 when the matter was listed for handing down of a reserve judgment the wife provided the court with a minute of order in relation to the sale of the former matrimonial home. That minute was slightly different in its content to that which the parties had agreed should be implemented in the event of a sale being necessary. The detail of the new order sought differed to that which had previously been agreed in that the period of lead time before the sale was much shorter than had previously been agreed. The new minute provided for a sale by public auction on or before 2 July 2011. The wife’s solicitor says this has become necessary because the mortgagee has now moved to take possession of the property and has resisted doing so upon the wife’s agreement to an auction being held in the first week of July. The wife is the sole registered proprietor of that property. The new order proposes, like that previously agreed to, that there be a reserve price set for the auction at $1.7 million. For that reserve to be changed both parties are required to agree to same.
The shorter lead time prior to the sale of the property has caused the husband to be concerned about whether the reserve price might be reached as the parties had previously hoped. He is concerned that the debt to the trusts referred to next (namely $1 million) will not now be fully satisfied from the net sale proceeds after the mortgage is paid out.
The husband agrees to the parties’ debt to the E Lewis Family Trust and the D Lewis Family Trust being paid out from the sale proceeds of the former matrimonial home if there be sufficient proceeds to completely discharge that loan. Should there be insufficient proceeds then he opposes any payment being made. He says he wants to be able to negotiate with the trustees of those trusts in relation to the discharge of the debit.
The wife opposes any such change and says that no notice of this proposal has been provided to the trustees of the subject trusts. To date, the trustees have had no reason to intervene in these proceedings as the parties have represented the debt to the trusts will be paid out from the sale proceeds of the former matrimonial home. There has been no condition attached to that representation.
Should there be a short fall ultimately in the amount paid to the subject trustees, relative to the amount of debt owed to them by the parties, then the parties are jointly responsible for the balance of that debt. There is no additional liability borne by the husband to that of the wife.
In the applications heard by me the husband’s application was for the trustees of the subject trusts to be paid out of the sale proceeds of the former matrimonial home. No condition was imposed on that provision.
In the circumstances I consider the change sought by the husband should not be permitted and I will refuse same.
The other aspect of dispute is the amount of money which the wife seeks to expend on the property in order to place it in its best condition for the sale. The wife seeks to be permitted to spend up to $15,000 conditional upon a proper accounting for that expenditure to that husband. The costs so expended are to be repaid to the wife out of the sale proceeds. The husband seeks to restrict such expenditure to $10,000.
In the circumstances of this case where the property has a reserve price of $1.7 million I consider the difference between $10,000 and $15,000 of expenditure de minimis. I propose to permit the level of expenditure at $15,000 relying on the wife’s estimate given she is in possession of the property at this time and must reasonably be seen to have a better understanding of what will be required to spend on the property so that it might achieve its best possible sale price. Should there be any inappropriate expenditure by the wife on the property then that is a matter which can be taken into account for adjustment between the parties on the final hearing of their property applications.
For those reasons I make the orders set out earlier in this judgment.

I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate:

Date: 9 June 2011

[2011] FamCA 430

9 June 2011

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Costs

Injunction

Jurisdiction

Remedies

Procedural Fairness