Sum & Lam

[2024] FedCFamC2F 1356

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sum & Lam [2024] FedCFamC2F 1356

File number(s):

SYC 526 of 2023

Judgment of:

JUDGE MURDOCH

Date of judgment:

30 September 2024

Catchwords:

 FAMILY LAW – INTERIM PROPERTY – where the proceedings have a turgid history – where the parties have habitually failed to comply with multiple orders of the court, despite a number being made by consent – where there have been four interim hearings in a 19 month period – where the husband's submissions as to his need to file a further interim application to clarify and vary the orders arise from the parties' dispute as to the implementation of the orders is fallacious and the husband seeks to vary same orders to his advantage - where dispute continues to exist as to use of a joint and offset bank account, payment of rental monies, costs of supervision services and the payment of school and extracurricular expenses for the child - where various orders sought by the parties lack specificity as to the source of power and will not be made – where it is not the court’s role to make commercial decisions for the parties – parties are not to use an inordinate amount of court resources - where the husband is restrained by injunction from filing any further interim applications without leave first had and obtained - further orders made for the husband to provide disclosure, enforcement of a prior order for the payment of money and the matter listed for Compliance and Readiness hearing - where the parties and legal practitioners are reminded of their mandatory obligation to act consistently with the principles and overarching purpose as set out in section 95 of the Family Law Act 1975 (Cth) and section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)

Legislation:

Family Law Act 1975 (Cth) ss 95 and 96

Federal Circuit and Family Court of Australia Act2021 (Cth) ss 190 and 191

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 1.04

Division:

Division 2 Family Law

Number of paragraphs:

71

Date of last submission/s:

2 August 2024

Date of hearing:

25 September 2024

Place:

Sydney

Solicitor for the Applicant:

Long Saad Woodbridge, attendance excused

Solicitor for the Respondent:

Pigdon Norgate, attendance excused

ORDERS

SYC 526 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS SUM

Applicant

AND:

MR LAM

Respondent

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	30 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.Order 1(b) made on 13 June 2023 is discharged.  

2.By way of enforcement of Order 5 of 10 May 2023 the Husband is authorised to transfer within 7 days the amount of $9,176.52 from the National Australia Bank Account #...67 to his own personal bank account.

3.That within 14 days from the date of these Orders the Husband provide by way of disclosure:

(a)account statements in relation to the Husband's B Bank Account #...18 for the periods:

(i)1 May 2023 to 30 September 2023; and

(ii)1 December 2023 to 31 December 2023;

(b)save and except for the National Australia Bank Account #...67, account statements in relation to all accounts established by the Husband for the period 1 May 2023 to date, whether such accounts are in debit or credit and held by the husband solely or jointly with any other person.

4.The Husband is hereby restrained by injunction from filing any further Applications in a Proceeding without leave first had and obtained.

5.Each party’s costs of and incidental to this Application is reserved to final hearing.

6.Save as to costs, the Application in a Proceeding filed by the Husband on 1 May 2024 and the Wife’s Response thereto filed 20 June 2024 are dismissed.

7.The substantive proceedings are listed for a Compliance and Readiness Hearing at 2:15 pm on 28 November 2024 before Judge Murdoch. All parties and their legal representatives are to attend in person.

8.The listing of the Husband’s further Application in a Proceeding filed 17 September 2024 is adjourned for Directions only to the Compliance and Readiness Hearing.

9.The Wife is to file and serve any Amended Initiating Application particularising the relief she seeks on a substantive basis no later than 4:00 pm on 7 November 2024.

10.The Husband is to file and serve any Amended Response particularising the relief he seeks on a substantive basis no later than 4:00 pm on 14 November 2024.

11.The Wife shall by no later than 4:00 pm on 14 November 2024 serve upon the Husband a draft balance sheet to include all assets, liabilities, superannuation interests, financial resources and property suggested to be relevant and to include values as alleged by each party and:

(a)the Husband shall then within 7 days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect contra allegations by the Husband and any values that are agreed (if applicable);

(b)wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy;

(c)upon completion of any Single Expert valuation the balance sheet shall be amended to reflect determined/agreed values; and

(d)a final, settled version of the Balance Sheet shall be filed no later than 4:00 pm on 21 November 2024.

12.The parties are to file and serve no later than 4:00 pm on 21 November 2024:-

(a)An undertaking as to disclosure in accordance with Rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and

(b)A Certificate of Readiness in the approved form.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE MURDOCH

INTRODUCTION

1. These reasons determine an Application in a Proceeding filed by the husband on 1 May 2024 and the wife’s Response thereto filed on 20 June 2024.

2. The parties met in 2016 and married in 2017. They separated on a final basis on 19 January 2023. The wife initiated proceedings seeking a property adjustment on 1 February 2023. The husband’s response filed 21 February 2023 sought both property and parenting orders.

3. These proceedings have a turgid history, with the matter utilising a disproportionate amount of the resources of the court; both that of judges and delegated judicial officers. Over the 19 month period these proceedings have been on foot the husband has filed four interim applications and an Application for Review; one such interim application being filed subsequent to the listing of this application. It has to date had over 19 listings in court including four interim hearings in addition to the 17 chambers listings required to case manage the matter. The parties have failed to comply with previous court orders and directions.

4. This court is endeavouring to manage and progress matters according to the principles set out in section 95 of the Family Law Act 1975 (Cth) (“the Act”) and section 190 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the FCFCOA Act”) which mandates that the court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. This overarching principle includes as its objectives the efficient use of the judicial and administrative resources available for the purpose of this court, the efficient disposal of the court’s overall caseload, disposal of all proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

5. Section 96 of the Act and section 191 of the FCFCOA Act obliges parties to act consistently with this overarching purpose and is complemented by rule 1.40 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Lawyers must assist their clients to comply with this duty.

   BACKGROUND

6. The husband was born in 1979 and is presently 45 years of age. The wife was born in 1980 and is presently 44 years of age.

7. There is one child of the marriage, X, born in 2019 and currently aged 5 (“the child”).

8. The husband is the sole legal proprietor of:

   ·A property at C Street, Suburb D (“the Suburb D property”);

   ·A property at E Street, Suburb F (“the Suburb F property”);

   ·A property at G Street, Suburb H (“the Suburb H property”);

   ·Three properties in City J, Country K (“the Country K properties”).

9. The wife is the sole registered proprietor of real property at:-

   ·L Street, Suburb M (“the Suburb M property”); and

   ·N Street, Suburb O (“the Suburb O property”).

10. A Joint Draft Balance Sheet filed by the parties on 1 July 2024 records the parties’ superannuation and non-superannuation property and their asserted values as follows: -

Ownership		Description		Applicant Value	Respondent Value
ASSETS
1	Husband	C Street, Suburb D		$1,900,000	$1,900,000
2	Husband	E Street, Suburb F		$1,800,000	$1,800,00
3	Husband	G Street, Suburb H		$740,000	$740,000
4	Husband	Suburb P, City J, Country K		NK	$160,000
5	Husband	Suburb Q, City J, Country K		NK	$150,000
6	Husband	Suburb R, City J, Country K		NK	$150,000
7	Wife	L Street, Suburb M		$3,400,000	$4,500,000
8	Wife	N Street, Suburb O		NIL	$40,000
9	Husband	S Bank Account (ending …41) as at 12.06.24		$0	$0
10	Joint	NAB Account (ending …71) as at 27.06.24		$84,352	$84,352
11	Husband	NAB Account (ending …67) as at 27.06.24		$23,081	$23,082
12	Husband	NAB Account (ending …55) as at 12.06.24		$145	$145
13	Husband	T Bank Account (ending …51) (closed)		$0	$0
14	Husband	T Bank Account (ending …40) (closed)		$0	$0
15	Husband	U Bank Account (ending …18) as at 12.06.24		$33,318	$33,318
16	Husband	U Bank Account (ending …12) as at 12.06.24		$0	$0
17	Husband	U Bank Account (ending …01) as at 12.06.24		$0	$0
18	Husband	USD U Bank Account (ending …40) as at 12.06.24		$1,050	$1,050
19	Husband	U Bank Account (ending …39) as at 12.06.24		$3,758	$3,758
20	Husband	Country K Account (ending …11) as at 12.06.24		$110,412	$110,412
21	Husband	US Bank Account (ending …67) as at 12.06.24		$5,327	$5,327
21A	Husband	W Bank Account		NK	$0
22	Wife	NAB Account (ending …52) as at 27.06.24		$15,858	$15,858
23	Joint	Y Bank Direct Account		NA	NK
24	Wife	Z Bank Account		NA	NK
25	Husband	V Company Employee Shares as at 05.06.2024		$169,273	$164,248
26	Husband	Share Portfolio as at 05.06.2024		$10,480	$10,940
27A	Husband	Motor Vehicle 1		NK
27	Joint	Item of Furniture		$2,000	$15,000
28	Joint	Household Contents in FMH		NIL	$18,000
29	Husband	Personal Property		$2,000	$2,000
30	Wife	Engagement Ring		$5,000	$30,000
Total				$8,306,054	$9,957,491
NOTIONAL ADDBACKS
Ownership		Description		Applicant Value	Respondent Value
44	Husband	SMSF Investment lost by husband		$300,000	NIL
45	Husband	Funds transferred by husband to his parents from parties joint funds during marriage		$239,728	NIL
45A	Husband	AA Company shares transferred by husband to his mum at zero cost during marriage		$15,000	NIL
45B	Husband	Property transferred by husband to his dad at zero cost during marriage		$400,000	NIL
46	Husband	Rental income received into U Bank Account and used by husband in breach of Orders of 10 May 2024		TBA	NIL
47	Husband	Husband’s interim distribution. The loan is his personal liability.		$98,304	NIL
48	Husband	Redundancy payment received by Husband used for his personal expenses.		$47,882	NIL
49	Wife	Funds withdrawn by Wife from NAB #...71 without Husband’s consent for payment of BB School fees		NIL	$34,005
Total				$954,728	$34,005
LIABILITIES
Ownership		Description		Applicant Value	Respondent Value
31	Husband	NAB Home Loan Account (ending …92) as at 12.06.24		$98,304	$98,304
32	Husband	NAB Home Loan Account (ending …10) as at 12.06.24		$906,881	$906,881
33	Husband	S Bank Home Loan Account (ending …99) as at 12.06.24		$625,555	$625,555
34	Husband	S Bank Home Loan Account (ending …00) as at 12.06.24		$462,208	$462,208
35	Husband	Country K Home Loan Account (ending …40)		$69,355	$95,461
36	Husband	Credit Card as at 12.06.24		NIL	$1,096
37	Husband	Credit Card Account (ending …34) as at 12.06.24		NIL	$584
38	Wife	Credit Card Account (ending …26) as at 15.10.2023		NIL	$879
39	Husband	ATO Tax Liability		NIL	NK
40	Husband	Country K Tax Liability		NIL	NK
41	Wife	Personal Loan from CC		NIL	NIL
Total				$2,162,303	$2,190,968
SUPERANNUATION
Member		Name of Fund	Type of Interest	Applicant Value	Respondent Value
42	Husband	Super Fund 1	SMSF	$87,961	$87,961
43	Wife	Super Fund 2	Accumulation	$365,296	$365,296
Total				$453,257	$453,257
NET TOTAL NON SUPERANNUATION PROPERTY				$7,098,479	$7,800,528
NET TOTAL PROPERTY (including superannuation)				$7,551,736	$8,253,785

LITIGATION HISTORY

1. At the matter’s first interim hearing of the wife’s application on 7 February 2023, interim orders were made by consent:-

   4.That, without admissions basis and pending further order, the parties be restrained from withdrawing any funds from the NAB Account BSB […] Account Number […67], except for the following purposes

   a.mortgage repayments for the [Suburb F] property, [Suburb D] property and [Suburb H] property;

   b.strata fee payments, council rates, insurance payments, payment of utilities and land tax payments associated with the [Suburb M] property, [Suburb F] property, [Suburb D] property and [Suburb H] property;

   c.Expenses associated with the child, [X]’s education, tuition and preschool/daycare; and

   d.        As otherwise agreed between the parties in writing

2. Further orders were made by consent that:-

   ·pending further order the parties be restrained by injunction from selling, transferring, assigning or further encumbering the Suburb F, Suburb D, Suburb H and Suburb M properties;

   ·the parties exchange disclosure and file an Undertaking as to Disclosure;

   ·In the event the parties, after exchanging market appraisals, are unable to reach agreement as to the value of the Suburb F, Suburb D, Suburb H and Suburb M properties then the parties are to obtain a single expert valuation with the costs of the valuations to be paid equally “from the joint account and the parties shall do all acts and things necessary to authorise such payment”.

   ·The parties attend mediation regarding property with the costs shared equally.

   ·The husband file his material in response and the interim hearing be adjourned.

3. Orders were made on a defended basis that:-

   10.Within three (3) days the Husband do all acts and things necessary to cause the wife to be authorised as a signatory on the NAB Account.

   11.The Husband otherwise be restrained by injunction from selling, transferring, assigning or further encumbering any shares he has in his name or any other real property in his name or held jointly with any other person in Australia or overseas.

   12.From the date of these orders the Husband is to direct that all rental income from the [Suburb F], [Suburb D] and [Suburb H] properties be deposited into the joint account. Within three (3) days the Husband do all acts and things necessary to cause the wife to be authorised as a signatory on the NAB Account.

4. The interim hearing was adjourned to 15 March 2023.

5. The parties appeared at the adjourned interim hearing on 15 March 2023 and on this date the Senior Judicial Registrar made orders that the parties were to file terms of settlement with respect to financial and parenting matters by 16 March 2023. The matter was listed for mention before a Judicial Registrar on 1 June 2023. Costs of the interim defended hearing listed on this date were reserved.

6. The husband filed an Application for Review on 22 March 2023 seeking to discharge order 4(c) made by consent on 7 February 2023 that effectively permitted the payment of the child’s school fees from the NAB account ending #...67.  The husband sought, by way of this Review process, a multitude of further interim financial orders, including an interim property distribution to each of the parties of $100,000. Despite there being no parenting orders made, such application further sought interim parenting orders. This was clearly an abuse of process. The Application for Review was listed for hearing on 12 May 2023.   

7. The matter was placed into the Evatt List on 29 March 2023.

8. Interim financial and parenting orders were made by consent by the Senior Judicial Registrar in Chambers on 10 May 2023 (“the 10 May orders”) that: -

   Property Orders

   1.That Order 4 and Order 10 of the Orders made on 7 February 2023 are discharged.

   2.The wife is restrained from contacting any of the financial institutions in which the husband has a bank account, in respect to the husband’s bank account without the written consent of the husband, except through the parties’ legal representatives.

   3.The parties will not unreasonably withhold authorisation for payment from the joint funds account for the following withdrawals:

   a.Mortgage repayments for the [Suburb F] property, [Suburb D] property and [Suburb H] property which are authorised to be deducted by direct debit only as and when such payments are due;

   b.And Strata fee payments, council rates, insurance payments, payment of utilities and land tax payments associated with the [Suburb M] property, [Suburb F] property, [Suburb D] property, and [Suburb H] property;

   c.Expenses associated with the child, [X]’s education, tuition and preschool/day care; and

   d.        As may otherwise be agreed between the parties.

   4.The wife thereafter retain for her personal use the NAB account BSB […] account number […52] and MasterCard […26] on an unrestricted basis (“the wife’s accounts”).

   5.Upon the husband providing invoices in relation to all withdrawals made from the NAB account BSB […], account number […67] from 7 February 2023 until 15 March 2023, then the parties shall jointly authorise the amount of $10,874.09 to be paid from the joint funds account into the husband’s account.

   6.        The husband will provide to the wife the following:

   a.        Full access to the rental register on the shared Google Drive account;

   b.Full access to a shared email address to be used in relation to tenancy matters; and

   c.Copies of all lease agreements with any tenants at all investment properties.

   7.Upon order 6 being complied with, the wife undertakes to not communicate with any tenant at the following properties:

   a.        [E Street, Suburb F];

   b.        [C Street, Suburb D]; and

   c.        [G Street, Suburb H].

   ….

   THE COURT FURTHER ORDERS THAT:

   Property Orders

   15.The parties do all acts and things necessary to open a joint bank account with the National Australia Bank (“NAB”) requiring the signatures of both parties for withdrawals (“the joint funds account”) with the following to apply:

   a.The wife will attend at NAB at [Suburb F] to open the account, produce identification, and provide her signature by close of business on 17 March 2023; with the husband to attend at NAB at [Suburb F] to produce identification and provide his signature to facilitate opening the account by close of business 22 March 2023.

   b.Within 24 hours of the joint funds account being operational, the balance of the NAB account BSB […] account number […67] will be transferred to the joint funds account.

   16.Within one business day of the joint funds account being operational, the husband will direct all tenants to deposit rental payments into the joint funds account.

   17.The husband thereafter retain for his personal use the NAB account BSB […] account number […67] and Commonwealth Bank credit card […30] on an unrestricted basis (“the husbands accounts”).

   18.The parties are restrained from withdrawing any available funds from any other bank accounts, whether they be credit or debit accounts that are held in their joint or sole names in any place, other than the husband’s accounts as specified at Order 17 above and the wife’s accounts as specified at Order 4.

   19.The parties are otherwise restrained from selling, transferring, or otherwise disposing of any shared or real properties whether held solely or jointly.

1. Only two days later the husband’s Application for Review was listed before a Judge for hearing. On this date orders were made that:-

   1.Paragraph 15(a) of the Orders made 10 May 2023 be varied by removing the words “17 March” and replacing them with the words “17 May” and removing the words “22 March” and replacing them with the words “22 May”.

   2.Paragraph 17 of the Orders made 10 May 2023 be discharged and replaced with the following Order:

   (17)The husband thereafter retain for his person use the [U Bank] account number ending […18], the NAB account BSB […] account number […67] and the Commonwealth Bank credit card […30] on an unrestricted basis (“the husband’s accounts”).

2. The interim hearing was adjourned part heard to 19 May 2023. This date was vacated in chambers and listed on 8 June 2023. On 8 June 2023 it was again adjourned to 13 June 2023 and a notation made that no further adjournments would be granted.

3. On 13 June 2023 orders were made that:

   1.By 4:00pm 14 June 2023, both parties will do all acts and things, and sign all necessary documents to:

   a.Transfer from NAB account ending in […92], the sum of $100,000 to a transaction account which will then be forwarded to and held by Mills Oakley Lawyers on behalf of the Husband, for the Husband’s use; with the Husband to provide documentary evidence to the Wife that the money has been deposited with Mills Oakley within 7 days of the date of this Order.

   b.To organise and change the NAB account ending in […71] into an offset account.

   2.In relation to paragraph 1(a), as and from the date of this Order, the Husband must pay all principal and interest (if any) relating to the NAB loan account ending in […92] as and when they fall due.

   3.        The Husband’s Application for Review, filed 22 March 2023, be dismissed.

   4.All questions of costs arising from the Husband’s Application for Review, be determined at the Final Hearing of this matter.

   (Emphasis in the original).

4. On 14 June 2023 the docketed Judicial Registrar noted that the court was yet to receive consent orders appointing a single expert and there had been a number of adjournments to allow the parties to resolve this issue without success. The matter was listed for a Case Management Hearing before the Judicial Registrar on 7 July 2023. On 7 July 2023 orders were made by consent as to the appointment of a single expert to prepare a report with regard to the parenting aspect of the proceedings and the parties’ attendance at a private mediation. It was noted that the parties agreed to the appointment of Mr DD as the single expert property valuer to value the properties set out in Order 6 of 7 February 2023.

5. On 9 November 2023 the husband filed an Application in a Proceeding as the parties were unable to agree on the valuer for the properties in Country K. On 17 January 2024 orders were made by consent in chambers appointing Mr EE as the single expert valuer for the Country K properties and the method whereby such valuer would be instructed. In the event there was any dispute as to the letter of instruction, the letter of instruction was to contain a list of the disputed contentions of each party.

6. The matter was relisted on the court’s own motion on 8 March 2024 with the court noting that there had been non-compliance with Orders made on 17 January 2024 and 22 January 2024 as to the confirmation of interviews in the parenting proceedings with Dr FF, the agreed single expert, and settling the letter of instruction for the valuation of the Country K properties. It was noted that on this date the wife advised the court that she would not settle the letter of instruction to Dr FF as she no longer agreed that he would be the single expert in the parenting proceedings and that she would not complete the joint letter of instruction to the single expert valuer of the Country K properties as she “has some reservations on how the valuations will occur.” The wife was ordered to pay the husband’s costs of $581 on this occasion.

7. Understandably the Judicial Registrar was at her wits end with the parties’ conduct and lack of progression in the matter and referred the matter to the Case Management Judge for Judicial Case Management. I am now case managing this matter.

8. At the listing of the matter before me on 25 March 2024 I ordered that the parties provide by that afternoon a draft letter of instruction to the single expert valuer of the Country K properties and written submissions by the next day as to why their draft letter of instruction should be preferred. Neither party complied.

9. On 30 May 2024 it was ordered in Chambers that the husband’s letter of instruction to the Country K valuer was to be sent.

10. On 4 July 2024 orders were made by me dismissing the Application in a Proceeding filed by the husband on 20 December 2023 and the Application in a Proceeding filed by the wife on 1 February 2023. Both parties consented to the competing interim applications being determined on the papers in chambers and directions were made as to the filing of material in support of the current competing applications before the court. The parties were directed to attend FDR on a date to be advised. Orders were made by consent that parties attend mediation with Ms GG within two months of valuations of the three Country K properties being released.

    THE COMPETING PROPOSALS

11. By way of this current application the husband seeks orders in accordance with his Application in a Proceeding filed 1 May 2024, being:-

    1. The Applicant have leave to rely upon his Affidavit filed contemporaneously with this Application, being more than 10 pages.

    2. Orders 3, 12 and 16 of the Orders made on 10 May 2023 be discharged.

    3. Order 17 of the Orders made on 10 May 2023 be varied and the words "NAB account BSB […] account number […67] and" be deleted.

    Bank Accounts

    4. Within 24 hours, each party do all things and sign all documents necessary to direct National Australia Bank to transfer all funds held in NAB account BSB […] account number […71] ("Joint Account") into NAB account […56] account number […67] ("Offset Account") and the Wife is to remain a signatory on the Offset Account.

    5. Within 24 hours of the parties' compliance with Order 4, the parties take all steps and sign all documents necessary to close the Joint Account be closed thereafter.

    6. Except for as otherwise provided in these Orders, each party is restrained from making any payments or withdrawals, including setting up direct debits, ATM withdrawals and other online transactions, from the Offset Account, without the other party's consent.

    Property Expenses

    7. Within 24 hours, the Husband direct all tenants of the following properties to deposit rental payments into the Offset Account:

    7.1 [E Street, Suburb F] ("[Suburb F] Property");

    7.2 [C Street, Suburb D] ("[Suburb D] Property");

    7.3 [G Street, Suburb H] ("[Suburb H] Property").

    8. The Husband be authorised to set up direct debits to be paid from the Offset Account for the following expenses in relation to the [Suburb F] Property, [Suburb D] Property and [Suburb H] Property :

    8.1 Home loan repayments and associated fees,

    8.2 Strata levies and associated fees;

    8.3 Council Rates;

    8.4 Water Rates;

    8.5 Insurance premiums;

    8.6 Utilities;

    8.7 Land and other tax liabilities;

    8.8 Pest inspection expenses;

    8.9 Gardening expenses; and

    8.10 Bond Refunds.

    9. The Wife be authorised to set up direct debits to be paid from the Offset Account for the following expenses in relation to the former family home at [L Street, Suburb M]:

    9.1 Council Rates;

    9 .2 Water Rates; and

    9.3 Home Building and Contents Insurance premiums.

    Extra-Curricular Activities

    10.  In the event the Wife seeks the costs of the Child’s [X] born [in] 2019, extra‑curricular activities be paid from the Offset Account, the Wife is to provide the Husband with 2 weeks notice of her intention to enrol the Child in such activity and provide to the Husband all details of the activity including the cost and thereafter, the Wife is to raise a payment request from the Offset Account and and if the activity is agreed, the Husband is to approve such payment request within 24 hours of the expiration of the 2 week notice period, which agreement must not be unreasonably withheld.

    Costs of Supervision

    11. All costs associated with the Husband spending supervised time with the Child be paid from the Offset Account.

    Income Payment

    12. The Husband is authorised to transfer the amount of $10,874.09 from the Offset Account to his personal account, it being noted that the Wife has not provided the required authorisation pursuant to Order 5 of the Orders dated 10 May 2024.

    Material to Single Expert

    13. The Husband is permitted to provide to the single expert, [Dr FF], the contact reports from [HH Centre] and [JJ Centre] for the period 15 October 2023 to date.

    Part Property Settlement

    14. The amount of $34,004.83 withdrawn by the Wife from the Joint Account and paid to [BB School] be treated as part property settlement, or otherwise characterised by the Trial Judge.

    Costs

    15. The Wife pay the Husband’s costs of and incidental to this Application.  

12. Order 13 as sought in relation to the material to be provided to the Single Expert Dr FF is no longer sought as that has now been resolved by prior orders.

13. In support of the relief sought, the husband relies upon:

    ·his Affidavit filed 1 May 2024; and

    ·Written Submissions filed 2 August 2024.

14. The wife seeks by way of response:

    1. That for the purpose of these orders :

    a. [L Street, Suburb M] is referred to as “the [Suburb M] property'';

    b. [E Street, Suburb F] is referred to as '' the [Suburb F] property'';

    c. [C Street, Suburb D] is referred to as "the [Suburb D] property';

    d. [G Street, Suburb H] is referred to as ''the [Suburb H] property”.

    e. ''The rental properties” means the [Suburb F] property, the [Suburb D] property and the [Suburb H] property.

    2. Within 24 hours of the date of these Orders , the Husband direct all tenants of the rental properties to deposit all rental payments into the parties' joint NAB account BSB […] Account number […71] ("the joint account” or NAB # […71]) in accordance With Order 16 of Orders dated 10 May 2023 by Senior Judicial Registrar Evans, such orders being subsequently reviewed by the Husband and such Review being dismissed by Judge Turnbull on 13 June 2023.

    3. For the purpose of clarity and with reference to Order 3 of orders dated 10 May 2023, the parties be permitted set up direct debits to be paid from the joint account in relation to the following expenses referrable to the [Suburb F] Property, the [Suburb D] property, the [Suburb H] Property, and the [Suburb M] property:

    a. Mortgage payments;

    b. Strata levies;

    c. Council. rates;

    d. Electricity expenses ;

    e. Internet/landline costs ;

    f. Water rates;

    g. Insurance premiums ;

    h. Land Tax payments;

    4. That each of the parties be at liberty to provide to the other any invoices via email for any other genuine expenses payable for the [Suburb F] Property, the [Suburb D] property, the [Suburb H] Property and the [Suburb M] property and within 48 hours of the same, the other party will confirm their authority for funds to be withdrawn from the joint account for the payment of such expenses. For the purpose of this order the parties shall not unreasonably withhold their consent.

    5. For the purpose of clarity and in accordance with Order 3( c) of orders dated 1 o May 2023 the wife is at liberty to withdraw funds from Joint Account for expenses associated with the child, [X]’s, tuition, and extra-curricular activities including tuition fees, uniforms, and associated costs attending [BB School] and extra-curricular activities .

    6. That within 24 hours of the date of these Orders, the balance of the Husband 's NAB account BSB […] Account Number […67] (NA1;3 #[…67]) be transferred to the Joint Account in-accordance with Order 15(b) of orders dated 1 O May 2023 by Senior Judicial Registrar Evans.

    7. That within 24 hours from the date of these Orders, the Husband return to the Joint Account rental income that he has deposited into his [U Bank] account BSB […] Account Number […18] ([U Bank #...18]) or any other account since 7 February 2023 to date.

    8. That forthwith and in accordance with Order 6 of the orders dated 10 May 2023 the Husband:

    (a) forward to the Wife all correspondence sent by the Husband to any of the tenants of the rental properties and any correspondence received from the tenants of the rental properties for the period 15 March 2023 to date,

    (b) provide the Wife with full access to the email address used in relation to tenancy matters.

    9. That the Wife be permitted to provide a copy of these Orders to National Australia Bank.

    10. That the parties be restrained by injunction from requesting National Australia Bank place any freeze or blocks on the Joint Account without first providing the other party with 24 hours notice in writing of the reasons and their intention to do so/

    11. The Husband pay costs of the supervision in accordance with Order 12 of orders dated 10 May 2023.

    12. That within 7 days from the date of these Orders the husband provide by way of disclosure:

    (a) Account Statements in relation to the Husband's [U Bank] Account #[...18] for the periods:

    (i) 1 May 2023 to 30 September 2023; and

    (ii) 1 December 2023 to 31 December 2023

    (b) Account Statements in relation to all accounts established by the husband for the period 1 May 2023 to date whether such accounts are in debit or credit and held by the husband solely or jointly with any other person. For the purpose of this Order the husband is not required to provide statements for the joint account.

    13. That the Husband be prohibited for filing any further applications seeking to alter or discharge the Interim Orders dated 10 May 2024 without formal leave of the court.

    14. The Husband pay the Wife’s costs of an incidental to this Application.

15. In support of such Response the wife relies upon:

    ·her Affidavit filed on 20 June 2024; and

    ·Written Submissions filed 2 August 2024.

    DISPOSITION

16. The husband says this fifth application filed by him on an interim basis is because of the failure of the parties to “agree upon the implementation of Orders made in May 2023, and any variations which are required or a commonsense outcome. The husband therefore seeks to clarify and vary the orders accordingly, to avoid any further and ongoing disputes.”[1] The husband’s submissions are fallacious in circumstances where the orders of 10 May 2023 were made by consent. The husband’s current application does not merely attempt to agree or assist with the implementation of orders but vary them. To make such a misleading submission does the husband and the legal practitioner who drafted them little credit.

    [1] Husband’s Written Submissions, paragraph 2.

17. The wife’s position is that the husband has repeatedly breached and failed to comply with the interim orders and that this application is yet another attempt by the husband to have the 10 May 2023 orders set aside. Inferentially she asserts that it is her position that these orders should remain in effect. The wife’s contentions are specious where she also seeks to vary orders.

    Issue One: The Joint and Offset Bank Accounts

18. There are two National Australia Bank accounts which are the subject of contention, the:

    ·account ending #...71 held in joint names, being line 10 on the Balance Sheet (“the Joint Account”); and the

    ·account ending #...67 held in the husband’s name, being line 11 on the Balance Sheet (“the Offset Account”).

19. The joint account has arisen from the parties opening such an account in compliance with orders made on 10 May 2023. This account requires the signature of both parties for withdrawals. The parties are not to unreasonably withhold authorisation from this account payments for mortgage repayments, strata, council, utilities, insurance and land tax payments and expenses associated with the child’s education, tuition and daycare. The husband was ordered to direct all tenants to deposit rental monies into this account. The husband concedes that not all rental income has been deposited “in circumstances where he did not want to cause confusion to the tenants while he attempted to resolve the matter with the wife.” [2] There is no evidence of this purported confusion.

    [2] Ibid, paragraph 8.

20. The husband deposes that the order made on 13 June 2024 requiring the parties to convert the joint account into an offset account is unenforceable; the National Australia Bank is unable to do this as the associated loans are in the husband’s sole name. In evidence is an email from Mr KK, Banking Advisor at the National Australia Bank dated 14 June 2023 confirming this.

21. The wife asserts that this is not the case; she has received advice that all the parties have to do is to attend in person at a branch and the bank can then assist the parties to comply with this order by converting the joint account into an offset account. The correspondence relied upon by the wife does not support her assertion. It clearly requests that both parties attend the same NAB branch at the same time to speak to the branch manager regarding the issue and that:

    The branch should be able to assist both of you with your query.[3]

    [3] Wife’s tender bundle, page 85

22. I do not infer from this that the bank will be able to change the account as the parties have been directed to do, merely that they will be able to assist the parties with their query in this regard.

23. I am satisfied that it is more probable than not that the parties will not be able to comply with the order to convert this joint account into an offset account. The order will need to be discharged.

24. Despite the husband asserting that this order is unenforceable, he does not seek its discharge. The husband seeks instead that all monies in the joint account be transferred into the offset account in his sole name and the joint account be closed. Acknowledging that this account is in his sole name, the husband proposes an injunctive order restraining both parties from using the offset account without the consent of the other party. The husband deposes that there are practical issues with the joint account in that each party needs to send an email to the NAB authorising payments and then the NAB will arrange for a bank cheque to be available for collection from a nominated branch.

25. I accept the wife’s submission that this should not occur. It is clear and uncontroversial that there has been significant difficulties and noncompliance with orders regulating the financial arrangements of the parties post separation. Bank accounts have at various times been frozen. The husband himself concedes to noncompliance with prior orders. Having regard to this history I cannot be satisfied that the parties’ financial interests will be best served pending a final hearing in the matter by having monies deposited into an account held in the sole name of one party only. I accept the wife’s submission that joint funds should remain in an account requiring dual authorisation to ensure transactional transparency. It is not for the court to make commercial decisions for the parties; it is to ensure preservation of the property pool. The husband’s relief sought in this regard will be dismissed.

    Issue Two: Property Expenses

26. The husband asserts that the orders made on 10 May 2023 do not adequately cover all expenses relating to the investment properties; gardening, pest inspection, bond refunds and tax liabilities are not currently permitted expenses. The husband asserts that the wording of the consensual order is vague and has “the potential” to cause further dispute.

27. The husband proposes an expansion of the expenses relating to the investment properties that are paid from joint funds.  Some restricted expenses should be paid from the joint funds in the property in which the wife is residing but all other expenses should be met by the wife. The wife proposes that the same expenses should be paid from the joint account for all four properties but does not agree to the expanded list of expenses sought by the husband.

1. The orders made on 10 May 2023 as to the expenses that the parties should not “unreasonably withhold authorisation” for payment from joint funds were made by consent. Neither party has deposed any change in circumstances since these consensual orders were made to justify a variation of the current orders. The parties’ competing relief sought in this regard will be dismissed.

   Issue Three: Extra Curricular Activities

2. There are currently no orders as to the payment of the child’s extra-curricular activities. Both parties seek an order that such activities be paid from joint funds. The wife disagrees with the husband’s application that such activities must be approved by both parties.

3. Neither party identifies the source of power to ground such orders. They will not be made.  

   Issue Four: Educational Fees

4. The child is currently in kindergarten at BB School.

5. The husband seeks to discharge Order 3(c) of 10 May 2023 which provides that the parties will not unreasonably withhold authorisation for payment from joint funds the “expenses associated with the child, X’s education, tuition and preschool/daycare” as it was his understanding that this order related to the child’s day care fees. The husband has advised the wife that he “reasonably withheld his authorisation” for the private school fees being paid for BB School prior to her commencement at the school as: -

   ·the child was not attending BB School at the time the orders were entered into;

   ·whilst the parties discussed during the relationship the child attending BB School, he does not consent to the child attending and as far as the husband was aware, the child’s position was not confirmed;

   ·he refused to sign the child’s enrolment form;

   ·the wife took steps to finalise the child’s enrolment without the husband’s knowledge including using joint funds in the total sum of $34,004.83 for tuition and other expenses;

   ·the wife submitted the child’s enrolment forms without the husband’s signature – only the wife’s signature appears on the form thus “indicating an acceptance of her sole responsibility for the school fees.” [4]

   ·he is unable to contribute to private school fees in light of his financial position and the limited amount of joint funds to pay the entirety of the school fees;

   ·there is no child support departure application pending by either party;

   ·the order in its current form is vague and unenforceable.

   [4] Husband’s submissions, paragraph 32.

6. The wife deposes that the child’s enrolment at BB School for 2024 was finalised in May 2022 “with all enrolment forms signed by both parties.” In evidence is an “Acceptance of Confirmed Offer” for BB School executed by both parties in May 2022 confirming their intention to enrol the child at BB School for kindergarten in Term 1, 2024. A letter from BB School to the parties dated May 2022 advises the parties that the child has a confirmed place at the school commencing Term 1, 2024.

7. Notwithstanding that the source of power to ground the consent order made on 10 May 2023 was not identified, clearly the school did not require a further signature of both parties for the child to be enrolled. She has been attending this school for the entirety of this year. The joint bank account currently has savings of $84,352. The orders are not vague; they clearly state “education and preschool fees.”  The husband’s misunderstanding of the orders consented to by him is not a basis for them to be discharged. Absent submissions as to the source of power for the consent order it will not be varied or discharged. The order remains in effect.  

   Costs of Supervision

8. The husband again seeks to vary orders that he pay for the costs of the supervision of the child’s time with him pursuant to orders made on 10 May 2023 which noted that at that time there was no child support assessment. He seeks that the costs be shared and paid from the joint account and submits that he “may be forced to cease visitation with the child if he cannot pay the costs of supervision.” He submits that he was made redundant in early 2024 and does not have a regular source of income. Curiously in the same submissions the husband asserts that he has spent over $200,000 in legal fees and that whilst he is permitted to access his offset account he has chosen not to do so “noting the current issues and the level of conflict between the parties.” He can also access his personal bank account with U Bank.

9. The wife deposes that the husband pays only $31 in child support.

10. The husband’s application to vary this order will be dismissed as:-

    ·the husband has paid a significant sum of money in legal fees and continues to instruct his solicitors to act on his behalf;

    ·he concedes to receive a redundancy payment which the wife asserts was over $52,000 in early 2024;

    ·the husband has access to funds in his account of over $23,000;

    ·the husband has access to funds in his U Bank account of over $33,000. Arising from the order to be made pursuant to paragraph 59 below the husband will receive a further sum of $9,176.52.

    Part Property Settlement

11. The husband seeks an order on an interim basis that monies allegedly withdrawn by the wife and paid to BB School be treated as part property settlement or as otherwise characterised by the Trial Judge. This is not an appropriate application to be made at an interim hearing. The payment by the wife as alleged is a matter that can be raised at the final hearing. The relief sought in this regard will be dismissed.

    Payment to Husband of his Income

12. The husband deposes that pursuant to order 5 made on 10 May 2023 the wife was to authorise payment of $10,879 from the joint account to the husband’s U Bank account upon the husband providing invoices all withdrawals from two NAB accounts from 7 February 2023 until 15 March 2023. The husband deposes his compliance with this order was by way of his affidavit filed 14 March 2023. He asserts that the wife made independent calculations, proposed a reduced amount and thereafter the husband received the sum of $1,697.54.

13. The wife does not contest that the husband provided the said invoices as required. She has however from the sum to be paid to the husband deducted monies she said the husband withdrew from an NAB account contrary to orders and that due to the husband receiving rental monies for the period, the order has in effect been complied with. I reject this assertion.

14. An order will be made as sought by the husband permitting him to transfer the sum owing pursuant to the order minus the sum he received, and not the total sum again as sought by him. Any failures by the husband to comply with orders of this court and the benefits he has received as a consequence thereof will be an issue for the final hearing.

    Payment of Rental Monies

15. The wife seeks an order that the husband comply with order 16 made on 10 May 2023 that he direct all tenants to deposit rental monies into the parties’ joint account.

16. The husband makes no submission in this regard. The husband has conceded that he has not complied with such order.

17. There is no utility in me making an order that the husband comply with an existing order. The order stands and the husband is required to comply. I anticipate that the husband’s failure to comply with this order will be an issue that looms large at the final hearing of the matter.

18. The relief sought by the wife on this subject matter will be dismissed.

    Injunctive Orders

19. The wife seeks an order that the parties be restrained by injunction from requesting the National Australia Bank to place any freeze or blocks on the joint account without first providing the other party with 24 hours written notice of their intention to do so. The wife’s evidence that the husband has in the past placed a freeze on the joint account is disputed by the husband.

20. The husband’s submission that this proposed order is unenforceable is misconceived. It does not seek to bind the bank, merely the parties from requesting that the bank do so.

21. The source of power to ground such relief is not particularised. It will not be made.

    Provision of Bank Statements

22. The wife seeks the provision of specific bank statements for bank accounts solely in the husband’s name. The husband merely submits that he continues to comply with his ongoing obligations for disclosure and notes his Undertaking as to Disclosure filed 27 June 2024. He does not depose that he has disclosed the specific statements sought by the wife. The order will be made.  

    Restraint on Filing Further Applications

23. The wife seeks an order that the husband be restrained from filing any further applications seeking to vary the orders of 10 May 2024 without formal leave of the court. Having regard to the history of the litigation recorded earlier in these reasons the husband will not be permitted to file any further interim applications without leave first being sought and obtained. This does not prevent the husband from seeking leave to file an application that is meritorious and otherwise promotes the overarching principles of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

24. Parties are not to consume expediential court resources to the detriment of other litigants.

    Costs

25. Each party seeks their costs of this interim application. Both parties sought to vary the current interim orders. The parties’ costs will be reserved to the final hearing of the matter.

    CONCLUSION

26. Orders will be made as set out above.  

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.

Associate:

Dated:       30 September 2024