Teh and Muir

[2014] FamCA 483

FAMILY COURT OF AUSTRALIA

TEH & MUIR [2014] FamCA 483

FAMILY LAW – PROPERTY – Interim distribution – proceeds of sale of former home – where respondent husband, through his case guardian, seeks funds to meet litigation expenses and reduce debt – where respondent wife opposes orders – proceeds of sale to be distributed equally and placed in trust accounts.

FAMILY LAW – INJUNCTIONS – Interim Orders – jurisdiction and generally –  whether a de facto relationship exists – status of Binding Financial Agreement yet to be determined – injunctions and discovery orders sought are necessary orders ancillary to determining orders which will be just and equitable.

Family Law Act 1975 (Cth) ss 90UC, 90UJ

APPLICANT: Ms Teh

RESPONDENT: Mr Muir by Ms Becke (Case Guardian)

FILE NUMBER: ADC 1922 of 2014

DATE DELIVERED: 25 June 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 25 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: Ms Teh in person

COUNSEL FOR THE RESPONDENT AND CASE GUARDIAN: Mr Culshaw

SOLICITOR FOR THE RESPONDENT AND CASE GUARDIAN: Culshaw Miller Divorce & Family Lawyers

Orders

Upon noting

1. An intervention order remains in place and it is not therefore necessary to make an order against the respondent husband.

2. The two keys for the house have been handed over to the respondent husband’s solicitor, Mr Culshaw, which the applicant wife says are keys to the property at Suburb A and she will make arrangements for the keys, held by her son, to be delivered to the real estate agent today.

3. That the current Address for Service of the applicant wife is … .

IT IS ORDERED THAT

1. The applicant wife file and serve her current Address for Service using the form being provided to her in Court today and if that Address for Service changes she must forthwith file and serve a fresh Address for Service giving the up to date details.

2. The net proceeds of sale of the Suburb A property to be distributed by the conveyancers and paid to the trust account of the legal guardian’s solicitors namely the trust account of Culshaw Miller Divorce and Family Lawyers such sum to be dealt with as follows:

a)in payment of one half of the sum to the respondent husband through his legal guardian to be used by the legal guardian in payment of the items referred to in paragraphs 3.1 and 3.3 of the interim response and the sum of FORTY THOUSAND DOLLARS [$40,000.00] to be paid to a separate interest bearing account on account of the respondent husband and legal guardian’s legal fees;

b)the remaining balance (one half) to be paid to a further separate account being an interest bearing account in the name of the respondent husband’s legal guardian’s lawyer to be retained and not dealt with subject to any further order of the Court.

1. The CBA Mastercard Account no …83 in the name of the respondent husband Mr Muir be closed following payment out of the outstanding debt.

1. Within twenty-one [21] days from today the applicant wife do provide all bank account details identifying all and any accounts held in her name and in her son’s name together with the relevant account numbers to include but not limited to those identified in paragraphs 6.1 through to 6.4 of the interim response.

1. The applicant wife is restrained and an injunction is hereby granted restraining her from dealing with, disposing of, withdrawing or in any way transacting any funds held in any bank account (including any draw down facility) in the name of the applicant wife, such account held either jointly with another or in the applicant wife’s sole name SAVE AND EXCEPT funds required for the applicant wife’s day to day needs or with the prior written consent of the respondent husband’s legal guardian.

1. The ANZ bank account in the joint names of the parties be forthwith closed and the applicant wife and respondent husband through his legal guardian do all things necessary including but not limited to signing any documentation that may be required by the ANZ bank to effect the closure of the account.

1. In the event the applicant wife refuses or neglects to execute any document required or incidental to give effect to these orders then the Registrar is to sign the documents upon proof of failure of the applicant wife to comply with orders of this Court.

1. The respondent husband’s costs of and incidental to the interim application is reserved to the final determination.

1. The final application proceedings be referred to the list of matters awaiting trial allocation and are adjourned for trial directions before the Registrar on a date to be advised by the Court UPON NOTING that the current length of trial is estimated to be five [5] days.

1. The Directions Hearing date of 22 July 2104 at 2.30 pm before the Registrar is vacated.

1. The application for interim orders sought by the applicant wife is dismissed.

1. Save as ordered the application for interim orders sought by the respondent husband are dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 1922 of 2014

Ms Teh

Applicant

And

Mr Muir (Ms Becke – Case Guardian)

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I deal with the interim orders being sought by both parties.

2. The Initiating Application amended and filed on 2 June 2014 seeks eight interim orders.  The first is the matter be heard urgently.  The matter has been listed since it was referred from the Federal Circuit Court quite promptly and allocated the time today.  That order has therefore been dealt with.

3. Paragraphs 2, 3, 4, 5 and 7 relate to the property at I Street, Suburb A.  Orders were previously made which required the wife to vacate that property to enable the sale to proceed.  The wife informs the Court today that she had vacated the premises.  I have observed the wife handing over to the counsel for the guardian what she says are her two keys to the property.  She says she will make arrangements for the keys that her son holds to be delivered up to the real estate agent today.  The orders therefore sought by way of interim order are no longer applicable and can be dismissed.

4. The wife proceeds today seeking an injunction in terms of paragraph 6;  that is, “An injunction restraining the Respondent and his family members coming within 50 metres of the Applicant and the Applicant’s young son, [Mr Teh]or their place of resicence” (misspelt). 

5. As I have already indicated in Court this morning, the application is only in proceedings between the wife and the husband.  There are no family members who are listed as respondents or parties to the proceedings.  Therefore it would not be appropriate to make any such order against other persons in the circumstances. 

6. As far as the injunction concerning the respondent husband is concerned, the Court has before it particulars of the intervention order which has been granted to the husband, the terms of which would require the husband not to breach those orders.  Therefore, taking into account that order and the husband’s current circumstances, it is not appropriate to make the injunction sought in paragraph 6.

7. Paragraph 8 seeks  “Any other orders that the hourable (sic) Court deems fit”. Apart from the orders sought by the guardian, it is not appropriate to make any other interim orders.  I therefore dismiss all of the interim orders as sought by the wife.

8. I will note that the current address for service of the wife is … . 

9. I now turn to the interim orders sought by the husband’s guardian.  These are set out in the response to the Initiating Application.  They deal primarily with how the funds by way of net proceeds of sale of the Suburb A property are to be used, and by way of discovery and disclosure of accounts and injunctions in relation to the wife dealing with her funds and other ancillary orders.

10. The issues to be determined could raise questions of jurisdiction if there was found not to be a de facto relationship, nor a valid Binding Financial Agreement.  However, I accept that the Court does have jurisdiction at this stage based primarily upon the Amended Initiating Application filed by the wife in which she seeks final orders to enforce a Binding Financial Agreement dated 19 February 2014, and also an order that “The Applicant receives a 50/50 per cent of property settlement in accordance with the Binding Financial Agreement”.

11. Annexed to the affidavit material filed by the wife is a deed which purports to be a Binding Financial Agreement made under section 90UC of the Family Law Act1975 (Cth) and dated 19 February 2014, which appears on the face of it to have been signed by the parties. It provides, in the event of a breakdown of the relationship,

    The property and financial resources of the parties will be divided as follows: (a) all properties shall be divided equally among the parties with each other taking 50 per cent of all properties.  Regardless of whose party’s name on the title of the assets.

12. The document contains what appears to be parts of the agreement being the statements made under section 90UJ of the Family Law Act by solicitors saying that they have independently advised the parties. These are matters which will need to be determined in due course, particularly in relation to the submissions now made on behalf of the husband, through the guardian, that the husband and wife were not in a de facto relationship and that at the time of the Deed being signed, the husband did not have the mental capacity to allow him to enter into such a binding agreement.

13. Those issues require to be determined.  I am satisfied that I have jurisdiction and that it is appropriate to consider making the injunction orders sought by the husband, through the guardian, on the basis that the injunction orders and the orders in relation to discovery would be necessary orders ancillary to, and to assist in, determining the orders which will be just and equitable in all of the circumstances.

14. In particular, the guardian seeks an order that fifty per cent of the net proceeds be paid into a particular pensioner security account in the name of the husband, and that further sums, including payment of a MasterCard debt (not specifically referred to, but I am told from the bar table) in excess of $8000 be paid from the remaining balance;  a further $30,000 to be held by the solicitors in relation to monies alleged to have been taken by the wife from the account to be held in escrow until further order;  the sum of $8,187.40 to be paid to assist in the payment of necessary funds for the ongoing care of the husband;  and a further $40,000 to be paid in accordance with paragraphs 87(e) and 87(f) of the supporting affidavit, which relate to likely future costs of the proceedings.

15. Paragraph 4 seeks a further order in relation to $30,000 being paid and to be held in escrow until further order. 

16. I have now received exhibit 1, which shows that the amount due from the sale of the property is approximately $176,000; that would make fifty per cent $88,000. If the debt to the MasterCard were paid and a further $30,000, $8,000, $40,000 and another $30,000 were paid, all of the sum would be used.

17. The wife opposes all of those orders, and being unrepresented and speaking through an interpreter, has merely referred to her opposition and further facts in relation to the spending of the $30,000. 

18. I take into account that fifty per cent of the proceeds of sale is approximately $88,000, which would provide the guardian, on behalf of the husband, with sufficient funds to pay the balance owing in relation to the CBA MasterCard account in paragraph 3.1, provide sufficient for paragraph 3.3 to be paid out, namely the $8,187.40 and also at the same time allow the sum of $40,000 to be allocated for future costs of the guardian and husband in these proceedings. 

19. The question of what should be done in relation to the $30,000 is an issue which will need to be determined when the Court makes the appropriate findings in relation to the validity of the alleged Binding Financial Agreement, whether there was in fact any de facto relationship, and then how such use of the funds would be treated and what repayment might be considered. 

20. The Court is not proposing to release the balance of the funds to the wife, nor for the use of the husband through the guardian, but to have the same retained so that any appropriate adjustment when issues have been determined can be made. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 25 June 2014.

Associate: 

Date:  8 July 2014