Tennant and Tennant

FAMILY COURT OF AUSTRALIA

TENNANT & TENNANT

[2017] FamCA 839

FAMILY LAW – PROPERTY – Where the Husband is to transfer the proceeds of his bank account to the parties’ joint account – Where the Husband is granted sole use and occupancy of the property – Where the Husband is granted sole responsibility for the management of the businesses – Where the Wife is restrained from fettering the Husband’s management of the businesses – Where the Husband is to make weekly payments to himself and to the Wife from the joint bank account.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Burke v Burke [1987] 2 FLR 71 Davis & Davis (1983) FLC 91-319 G & J [1993] 1 FLR 1008 Page & Page (1981) FLC 91-025 S & S [2002] FamCA 59 Sieling & Sieling (1979) FLC 90-627
APPLICANT:	Mr Tennant

RESPONDENT:

Ms Tennant

FILE NUMBER:

BRC

7048

2017

DATE DELIVERED:

11 October 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

8 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Hunter, Hunter Family Law

COUNSEL FOR THE RESPONDENT:

Ms Minnery of Counsel

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

Within 72 hours of the date of this Order, the Applicant husband shall transfer the proceeds of his National Australia Bank account number …31 to the St George Bank account number ...10 held in the name of the husband and the wife [“the joint St George Bank account (number …10)”].

AND IT IS ORDERED UNTIL FURTHER ORDER, UNLESS OTHERWISE AGREED BY THE PARTIES IN WRITING, THAT

The Applicant husband shall have sole use and occupation of the property located at B Street, C Town in the State of New South Wales (“the C Town Property”) from 4.00 pm on 24 October 2017.
The Applicant husband shall have sole responsibility for the management and operation of D Pty Ltd ABN ... (the Company), including the businesses operated from the Company as follows:
(a)Company G; and
(b)Company F,
and the Respondent wife is hereby restrained and an injunction issue restraining her from in any way fettering or interfering in or with the Applicant husband’s sole management and operation of the Company and the businesses.
The parties forthwith notify all of the banking institutions of D Pty Ltd ABN ... and the businesses operated by or though it (being Company G and Company F) that the accounts of the same are to be operated only by the Applicant husband.
The Applicant husband is hereby restrained and an injunction issue restraining him from selling, encumbering or disposing of any of the assets of D Pty Ltd ABN ... and the businesses operated by or though it (being Company G and Company F) other than in the ordinary course of business.
The Respondent wife is hereby restrained and an injunction issue restraining him from selling, encumbering or disposing of any of the assets of D Pty Ltd ABN ... and the businesses operated by or though it (being Company G and Company F) and her business other than in the ordinary course of business.
The Applicant husband shall forthwith cause all funds received through the operation of Company G and Company F to be paid into the joint St George Bank account (number ...10).
The parties shall forthwith do all acts and things and sign all documents to cause the Respondent wife to have electronic access to the bank accounts of the Company and the businesses and the joint St George Bank account (number ...10) such that she is able to view (only) the banking records.
Company H is hereby authorised to pay forthwith the amount of $45,134.66 into the joint St George Bank account (number ...10) and, thereafter, to pay all funds owing from time to time to Company F into this account as and when they are due and payable.
Save as is provided for in Clauses 11, 21 and 22(d) of this Order, the Applicant husband is restrained and an injunction issue restraining him from making any payments from the joint St George Bank Account (number ...10) without the prior written authorisation of the Respondent wife.
The Applicant husband shall pay, or cause to be paid, the following from the joint St George Bank Account (number ...10):
(a)loan repayments, when the same are due and payable, for the mortgage secured over the C Town property; and
(b)all business expenses incurred in the operation of Company G and Company F, provided that:
(i)he shall provide the Respondent wife with a copy of each invoice within 24 hours of receipt of the same; and
(ii)he shall not pay any invoice within 14 days of its provision to the Respondent wife; and
(c)all refunds of bonds associated with Company G, provided that he first provide the Respondent wife with a copy of each document which substantiates the requirement to repay the same; and
(d)to himself: the amount of $500.00 per week, with the first payment to be made by no later than 4.00 pm on Friday, 13 October 2017; and
(e)to the Respondent wife: the amount of $500.00 per week, with the first payment to be made by no later than 4.00 pm on Friday, 13 October 2017; and
(f)to the Respondent wife: upon her providing him with a signed lease agreement for residential premises in which she intends to live, an amount of the rental payments prescribed in that agreement up to the amount of $450.00 per week, with such sum to be used by the Respondent wife to pay her rental payments; and
(g)the loan repayments, when the same are due and payable, on the loan for the Japanese Car used by the Respondent wife, and the registration and insurance costs, when the same are due and payable, in relation to the Japanese car used by the Respondent wife; and
(h)to the Respondent wife: all amounts she asserts she has paid to date in respect of the business expenses of either Company F or Company G, provided that such expenses are substantiated by invoices which on their face establish that they relate to business expenses of either Company F or Company G; and
(i)to the Respondent wife: the amount of $3,200.00, which is the amount outstanding on her Mastercard credit card.

Disclosure

Within seven (7) days of the date of this Order, the Applicant husband shall provide, or cause to be provided, to the Respondent wife, a copy of all current and outstanding invoices, booking information and deposit information for all bookings for Company G.
Within 21 days of the date of this Order, each party shall provide full and frank disclosure to the other, with this obligation to include (but not be limited to) the provision of the following documents if these have not already been disclosed:
(a)individual taxation returns and notices of assessment for the last three (3) financial years;
(b)details of all current and contingent tax liabilities;
(c)in relation to any company and/or trust entity which that party controls, or in respect of which that party has an interest (either as director/shareholder/beneficiary or appointer of a trust), copies of the following for each entity:
(i)Trust Deed and any amendments thereto;
(ii)Memorandum and Articles of Association and amending documents (if any);
(iii)Shareholders Agreement;
(iv)the last annual return of any trustee company showing directors and shareholders;
(v)the financial documents being the financial statements, balance sheets, profit and loss accounts and taxation returns for the last three (3) financial years;
(vi)a copy of any lease or loan agreements in relation to any of the entities;
(vii)a copy of any guarantees or other banking documents entered into by any of the entities; and
(viii)particulars and documents verifying all current liabilities and ongoing expenses payable in relation to any of the entities.
(d)all supporting documents verifying:
(i)all withdrawals and/or distributions that party has made from the joint St George Bank Account (number ...10) during the past 12 months; and
(ii)all monies deposited into any bank accounts in which that party has a sole direct or indirect interest in respect of and on behalf of the Company and the Businesses for the past 12 months (the Business Monies);
(iii)the use, withdrawal and/or distribution of the Business Monies.
(e)copies of all bank, credit card and mortgage statements for the past 12 months for all accounts in which that party has a direct or indirect interest either solely or with any other person or related entities; and
(f)copies of all insurance policies in that party’s name; and
(g)in relation to any superannuation interest in that party’s name: a copy of the latest statement from the trustee of each fund, detailing the current entitlement. In the case of a self-managed superannuation fund, the following:
(i)copy of the Superannuation Trust Deed; and
(ii)the latest available balance sheet, profit and loss account and tax returns; and
(iii)copy of the memorandum and articles of association of any trustee company; and
(h)a list of the current shareholdings, derivatives, options and any other tradable investment held either by that party solely, jointly, with another person and/or a related entities including the name of each company, the number of shares, derivatives and/or options held and the current value of each investment; and
(i)for all motor vehicles owned and/or in the possession of that party or a related entity, including the following:
(i)a copy of the registration certificate;
(ii)a copy of any valuation reports in respect of the vehicle; and
(iii)a copy of any lease or loan agreements secured by the vehicle.
(j)a list of all real property held by that party solely or jointly with another person and/or a related entity, including valuation/market appraisal of each property, particulars in relation to when the said properties were purchased, and whether or not there is any existing liability in respect of the property including copies of the loan documents and mortgage statements; and
(k)copies of all rates notices for the last 12 months for all real estate in which that party has a direct or indirect interest; and
(l)particulars and supporting documentation in relation to the sale of any assets by that party (solely or jointly with another person and/or a related entity or on behalf of the other party) during the last 12 months, including but not limited to, contract/agreement for sale; and
(m)particulars and supporting documentation in relation to any assets valued at more than $5,000.00 purchased in the last 12 months by that party (solely or jointly with another person and/or a related entity or on behalf of the other party), including but not limited to, all relevant documentation associated with the purchase, including copies of any contract/agreement, how the purchase of the asset was funded, copy of any loan document/mortgage and copies of the current mortgage statement.

Balance Sheet and Valuations

Within 28 days of the date of this Order, the Applicant husband shall provide to the Respondent wife a balance sheet identifying:
(a)the property and superannuation interests of the Applicant husband and Respondent wife;
(b)the estimated value of each item of property and superannuation interest (and if not known, then so stating); and
(c)the liabilities that the Applicant husband alleges should be taken into account.
The Respondent wife shall reply in writing within a further 28 days identifying, in relation to the balance sheet detailed at Clause 14 above:
(a)any additional property or superannuation in which the Respondent wife has an interest, that is not included on the list and any other property that the Respondent wife alleges should be taken into account; and
(b)any item of property or superannuation that is agreed or disputed; and
(c)any liability that is agreed or disputed about being taken into account; and
(d)any value that is agreed or disputed.
The Applicant husband and Respondent wife shall have seven (7) days from the date that the Respondent wife provides her response to the balance sheet in accordance with Clause 15 to negotiate and reach agreement on the value of the property.
In the event that no agreement is reached as to the value for any item in the balance sheet, then the Respondent wife shall provide to the Applicant husband within a further seven (7) days:
(a)       the names of three (3) proposed Single Experts; and
(b)       an estimate of each proposed Single Expert's fees; and
(c)       a list of property to be valued by that Single Expert.
The Applicant husband shall nominate one of the proposed Single Experts to undertake a joint valuation of the property referred to within seven (7) days of receiving the panel from the Respondent wife in accordance with Clause 17.
In the event that the Applicant husband fails to nominate a Single Expert within seven (7) days of receiving the information the Respondent wife is required by Clause 17 to provide to him, then the Respondent wife shall nominate the Single Expert and such Single Expert shall be appointed pursuant to the Family Law Rules 2004.
The parties shall do all things necessary to appoint the Single Expert to prepare the valuation/s including providing a joint letter of instruction but, if the terms of the joint letter of instruction cannot be agreed, the parties shall be at liberty to provide their own letter of instruction to the Single Expert.
The costs of the Single Expert valuation/s shall be paid equally by the parties but shall be paid on an upfront basis by the Applicant husband from the joint St George Bank Account (number ...10).

Mediation

In the event that, after they receive any valuation/s obtained in accordance with this Order, the parties agree in writing to participate in a mediation, the following shall apply to the organisation of the same:
(a)within 21 days of their written agreement to participate in mediation, the Respondent wife shall provide the Applicant husband with the names of three proposed mediators and an estimate of each proposed mediator's fees; and
(b)within seven (7) days of receiving the information particularised in Clause 22(a) from the Respondent wife, the Applicant husband shall nominate one of the proposed mediators, book a date for mediation and inform the Respondent wife of the same; and
(c)in the event that the Applicant husband fails to comply with Clause 22(b), the Respondent wife shall nominate a mediator from the panel, book a date for mediation and inform the Applicant husband of the same; and
(d)the mediator's costs shall be paid equally by the parties, but shall be paid on an upfront basis by the Applicant husband from the joint St George Bank Account (number ...10).
Save as is provided herein, the Application in a Case filed 11 July 2017 and the cross-application contained within the Response to the Application in a Case filed 4 September 2017 are dismissed.
In the event that a party seeks an order that the other party pay the costs of and incidental to the Application in a Case filed 11 July 2017 and/or the cross-application contained within the Response to the Application in a Case filed 4 September 2017:
(a)the party seeking an order for costs shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and
(b)the party from whom costs are sought shall file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs within a further fourteen (14) days thereafter; and
(c)the party seeking costs shall file and serve any brief further written submissions, strictly in reply to the submissions served by the party from whom the costs are sought, within seven (7) days of its service;
and any such application for costs shall be determined in Chambers.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4048 of 2017

Mr Tennant

Applicant

And

Ms Tennant

Respondent

REASONS FOR JUDGMENT

By Initiating Application filed 11 July 2017, the Applicant, Mr Tennant, seeks final orders which, if made in the terms sought, would result in him paying to the Respondent, Ms Tennant, a sum which represents 30 per cent of the net matrimonial property.
To give effect to this, he proposes that:
a)she transfer to him all her right, title and interest in property situated at B Street, C Town, New South Wales; and
b)he refinance the existing loan secured by mortgage over this property; and
c)Ms Tennant retain her motor vehicle, funds at bank and the superannuation entitlements in her name; and
d)he retain two motor vehicles currently owned by him, the equipment at the property, funds at bank; and
e)subject to a superannuation splitting order which would result in a base amount of $50,000.00 being allocated to Ms Tennant, he retain the balance of the superannuation entitlement in his name.
In addition, Mr Tennant also proposes that Ms Tennant retire as a director and secretary of D Pty Ltd and transfer to him all of her shares in that company, together with any interest she has in any loan account from that company in her favour and/or in the favour of the parties jointly.
That is, it is clear that Mr Tennant’s case involves a wish on his part to retain the C Town property and the businesses operated from it. These have previously included livestock, although the evidence before me at the time of the hearing of the interim application was that the livestock previously raised on the property have now been sold.
The other businesses which have operated from, and continue to operate from, the C Town property involve farming and harvesting and a hospitality business.
In addition to this, the Respondent, Ms Tennant, has operated business, which involves her travelling to Sydney.
Prior to their separation, the parties, in essence, ran all three businesses and pooled the funds received from all three businesses into a single account.
It seems on the evidence before me to be unlikely that they maintained strict accounting procedures in relation to the apportionment of expenses to the respective arms of their overall joint venture. In fact, it seems very likely that they operated somewhat of an ad hoc accounting for the various receipts they received from each of these sources.
In essence, the parties lived on the C Town property, which was used for agricultural production. That was one source of their income. They also constructed a venue, which is made available for hospitality hire; as I have said, Ms Tennant operated her own business, which supplemented the income received by the parties from the previous farming and venue hire business.
Of course, those matters which were able to occur on an ad hoc basis via joint agreement, or at least acquiescence, have now come to an end following the parties’ separation.
In her Response to the Initiating Application filed on 4 September 2017, Ms Tennant outlines the final orders she seeks. If orders are made in the terms she seeks, this would result in her receiving property to the value of 60 per cent of the total net value of the property of the parties and her receiving a payment of lump sum and/or periodic spousal maintenance, as is determined appropriate.

It is against this background, then, of competing proposals for final orders that a raft of interim orders are sought, initially, as particularised by the Applicant as the interim orders sought in his Initiating Application. In responding, it is also clear that Ms Tennant has sought her own set of orders on an interim basis.
The disputes between the parties really then may be summarised to include:
a)who will be able to live in the house located on the C Town property;
b)who will be responsible for the management of the farm and the venue aspect of their joint venue;
c)what disclosure should appropriately be ordered;
d)what financial support should be made available to each of them on an interim basis;
e)whether Ms Tennant should receive a payment of about $75,000.00 to be used by her to meet litigation expenses;
f)whether injunctions should be made restraining each of the parties in relation to their disposition or encumbering of assets associated with the C Town property and/or each of their respective businesses, and the terms upon which such restraints should be made;
g)whether each party should be able to access and view the bank accounts and other financial accounts of the businesses.
It is common ground that, in considering these interlocutory applications, it is relevant to note that, after proceedings were commenced in this Court, Ms Tennant filed an application in the Supreme Court of New South Wales whereby, as I understand it, the relief sought includes an order for the sale of the C Town property.
This is particularly relevant because it is a matter to which Mr Tennant’s legal representative returned on a number of occasions in support of his submission that the appropriate order in this case is one which would see his client have sole use and occupation of the house on the C Town property and be responsible for the operation and day-to-day management of the farm and the venue aspect of the parties’ joint venture.
This is because, to paraphrase his submission, in essence, Ms Tennant’s actions in seeking an order for sale in a court other than this Court is inconsistent with the prospect that she will run the businesses operated from the C Town property with the same attention to detail and focus as his client, who is desirous of retaining the property and its associated businesses by way of final orders in the proceedings in this Court, and also inconsistent with the idea that it is more appropriate for Ms Tennant to continue to live in the residence on the C Town property, as it is accepted she has done since the parties separated.
The relief sought by the parties, by way of interim order, falls to be considered within the following factual circumstances, which I summarise for the purpose of my consideration of these interlocutory applications only.
The Applicant, Mr Tennant, was born in 1977. He will soon turn 40 years of age. At present, on the evidence before me, he lives at J Street, K Town, although I note Ms Tennant’s contention is that he, in fact, spends much of his time with his new partner.
Ms Tennant was born in 1977 and is currently 40 years of age. At present, she lives in the residence on the C Town property and does so following an earlier agreement reached with Mr Tennant that she continue to occupy the premises after their separation.
Both parties describe themselves accurately as “business proprietors”.
On Mr Tennant’s case, they commenced cohabitation in February 2001, married in 2004 and separated finally on 22 October 2016. Thus, on his case, their relationship was one of a little over fifteen and a half years in duration.
There are no children of their marriage.
On Ms Tennant’s case, the parties commenced cohabitation in November 2001. Thus, on her case, their relationship was of nearly 15 years duration.
The difference between the parties about the duration of their relationship is immaterial, in my view, to the determination of the current competing interim applications.
Whilst the parties disagree about the date on which they commenced cohabitation, they join in doubting the assertion made by each of them about their current living arrangements: that is, Mr Tennant asserts that, whilst Ms Tennant says she lives at the C Town property, she in fact spends most of her time with the person he asserts is her current partner; in contrast, Ms Tennant asserts that, whilst Mr Tennant provides an address which he asserts is his current rental accommodation, he in fact lives with the person she says is his current partner.
Whilst not material to the resolution of the competing interim applications, I remark that it may be that the prospect of future resolution of issues between the parties to this litigation may be complicated by the fact that Mr Tennant’s accepted current partner is the wife of Ms Tennant’s asserted current partner.
On Mr Tennant’s case, at the time the parties commenced their relationship, Ms Tennant, who had arrived in Australia from the United States of America, had neither property nor employment.
Ms Tennant denies this and asserts that, when she moved to Australia in November 2001, she arrived with approximately US$30,000.00.
Mr Tennant says he was employed at the time of the commencement of their relationship, owned an apartment (in Suburb L, Melbourne) which was the subject of a mortgage, had a car, some entitlement to superannuation and also owned some personal chattels.
Mr Tennant’s case and his evidence is, in effect, that he sold his Suburb L apartment and, following this, received about $130,000.00 after repayment of the loan previously secured by mortgage over it and the costs of sale. He says he applied the net sale proceeds to the purchase of a property at Suburb M in Sydney in 2007 for an amount of $710,000.00 and that the parties then improved that property at a cost of around $220,000.00.
He says he received a redundancy from his employment on 6 May 2013 in the amount of $455,521.00-odd.
He says he subsequently sold the Suburb M property for about $1,090,000 and received from it net sale proceeds (following repayment of loan and payment out of costs of sale) in the amount of $520,000.00.
He says that he and Ms Tennant then purchased the C Town property for about $1,310,000.00 using the funds he had received by way of redundancy payment, the net sale proceeds from the sale of the Suburb M property and borrowings secured over the C Town property by way of mortgage.
In essence, his evidence is that the parties’ plan was that they would live on, and operate various businesses from, the C Town property; they would operate the farming business and they would run some livestock.
He says the idea was that Ms Tennant would continue to do her work based in Sydney and would travel, when required, from the C Town property to Sydney for that purpose.
Mr Tennant also says that, in 2015, he received an inheritance of about $363,000.00 and used these funds towards improving the farm by constructing the venue. He says the cost of the improvements in total amounted to some $600,000.00.
Ms Tennant’s case, it seems, is that, between about 1997 and 2001 (when she and Mr Tennant commenced their relationship) she had been living in Europe and was working in the fashion industry. She says that, during this period, she earned between AU$100,000.00 and AU$150,000.00 per year. She moved to Australia in November 2001 and shortly thereafter commenced her relationship with Mr Tennant. She says that, from the time of their cohabitation until about 2006, she worked in Australia and internationally: and she estimates that she continued to earn about AU$100,000.00 to AU$150,000.00 per year. Her evidence, as I understand it, is to the effect that she paid the funds she received from her employment into an account controlled by Mr Tennant.
Ms Tennant also says that, in about 2005, she started to transition in her career, and by about 2006, she was working full-time in her current business. She says she continued to work in this role on a successful basis over the past 11 years: she estimates she earned between AU$100,000.00 and AU$200,000.00 gross per year engaged in this work.
Again, her evidence is to the effect that the income she received from her labours was paid into a bank account controlled by Mr Tennant.
Ms Tennant’s evidence is also that, after the parties moved to live at the C Town property, her income reduced because she was no longer living in Sydney and working from there. She says she began to manage and operate the venue aspect of the joint venture from about 2016 onwards.
By way of broad summary, then, Ms Tennant’s evidence is to the effect that during the parties’ relationship she deposited the income she earned into Mr Tennant’s personal bank accounts, which he controlled. She thinks he applied the money towards meeting their joint expenses and supporting their lifestyle.
Ms Tennant also makes a number of allegations that Mr Tennant forged her signature on a number of occasions.
These allegations include that he did so in an application dated 8 August 2016 directed to the bank in a capacity as office-holder of the company: also, documents that related to personal guarantees being provided in relation to a $100,000.00 business loan facility.
She says, in essence, that she was not physically present in C Town on the date on which the application was purportedly signed by her and witnessed by the person who she says is Mr Tennant’s current partner.
It seems that the solicitors Ms Tennant has engaged to act for her in proceedings against the bank have advised the bank that there are a number of documents dated between 2000 and 2016 which purport to bear Ms Tennant’s signature, but in respect of which she asserts she did not sign and that it is not, in fact, her signature. Her evidence is to the effect that she was unaware of the same and did not authorise them.
That is, her assertion is that the documents bearing her signature, forged by Mr Tennant, include a mortgage document in favour of the bank over the C Town property. In the proceedings in the Supreme Court in New South Wales she is asserting that such mortgage be set aside.
By way of overall summary, Ms Tennant’s case about the mortgage and loan with the bank is to the effect that she did not enter into an agreement with the bank in relation to funds lent because the relevant documents do not bear her signature. She says she did not sign the mortgage documents and, therefore, the bank has no right, or claim, against her interest in the C Town property.
As I have already noted, part of the relief, it seems, sought by Ms Tennant in the proceedings commenced in the Supreme Court of New South Wales involve orders for the sale of the C Town property.
Another aspect of Ms Tennant’s case in the proceedings in this Court seems to me to involve the contention that Mr Tennant was the financial controller during the course of their relationship: that is, he received and was responsible for all of her income and the business income and was responsible for and controlled the payment of the parties’ joint expenses, their respective personal expenses, and their business expenses. Her case, therefore, is that he was the financial controller of the businesses which comprised their joint venture; namely, the farm operations, the venue and her business.
As I have said, it seems uncontentious that all income received from these sources was combined and paid into a single account and combined. All expenses were met from pooled funds without, it seems, an accounting for or apportionment of expenses to each venture. That is, it seems to me (because it seems much more likely than not, even on an interim basis) that these parties simply approached their business operations as comprising one joint venture, which was presumably intended to enable them to support themselves while they lived on the C Town property.
Mr Tennant’s evidence as to the property of the parties, their liabilities and entitlement to superannuation can be summarised to be, in essence, that it encompasses:
a)the C Town property, which is said to be valued at between $2,200,000.00 and $2,500.000.00 and in respect of which there is a mortgage in the amount of $1,010,000.00 (in respect of which monthly repayments are in the vicinity of $4,200.00); and
b)a 4WD motor vehicle in his possession;
c)a Japanese motor vehicle in Ms Tennant’s possession;
d)funds in a T bank account in his name in an amount of $81,213.00;
e)funds in a National Australia Bank account in his name in the amount of $14,715.00.00;
f)nominal funds in the St George bank joint account (which, as I understand it, is accepted to have been the account into which funds were previously deposited and from which expenses were previously met prior to the parties’ separation); and
g)the value, if any, of the entity D Pty Ltd;
h)a Vintage motor vehicle (which he values at $40,000.00 and which Ms Tennant asserts has a value of between $100,000.00 and $200,000.00); and
i)jointly owned household chattels and furniture valued at between $17,000.00 (according to Mr Tennant and $5,000.00 according to Ms Tennant); and
j)superannuation entitlements of $99,228.00 – Mr Tennant; and
k)Ms Tennant’s superannuation entitlements, in an amount of about $7,447.00.
That is, on Mr Tennant’s case, the net value of the property of the parties is in the vicinity of $1,369,428.00 (exclusive of entitlements to superannuation) – of this, $95,928.00 is in cash: namely, the $81,213.00 (held in the T bank account) and the $14,715.00 (held in his NAB bank account).
In addition, the parties agree that there is currently payable to them an amount of about $45,000.00 – a payment associated with the sale of farm produce.
There is also payable to them, on a monthly basis, an amount in the vicinity of $2,000.00. The exact figures are, of course, as set out in the documentary Exhibits.
In addition it seems that Mr Tennant contends, as was conveyed by his legal representative on his instructions, that the income likely to be received from the venue aspect of the joint venture is in an amount of about $5,000.00 per week.
Ms Tennant’s evidence is that her income from her business (which she has continued to operate) is relatively limited and probably amounts to about $200.00 per week.
Since their separation, Ms Tennant has taken steps to ensure that the income she receives from the business is no longer paid into a joint account but, rather, is retained by her and utilised by her for her own support.
Part of the allegations and counter-allegations in the case which are, of course, incapable of resolution at an interim hearing is related to the withdrawals made by each party from the joint account.
It seems fairly clearly established that, at present, the joint NAB account holds only nominal funds. During the course of discourse at the hearing, it was an agreed position between the parties that Mr Tennant would transfer the proceeds of his National Australia Bank account into the joint account with St George and that that joint account with St George would, hereafter, be, in essence, the business account and the account into which all funds received from the farm aspect of the joint venture and the venue hire aspect of the joint venture would be paid – irrespective of whichever party is ultimately to be responsible for the management and ongoing operation of those aspects of the joint venture.
Ms Tennant’s evidence is also to the effect that, after separation, she incurred a number of personal loans. She says her current indebtedness is in the amount of about $90,000.00 and that, in addition, she owes $3,200.00 on a credit card and has an income tax liability in an amount of $1,904.00.
Her evidence is also to the effect that her business owes a supplier the sum of $10,700.00. She also says there are unpaid rates relating to the C Town property (in an amount of $3,902.00) and that Telstra is owed $554.00 in relation to the home phone and broadband.
I outline those matters because they are obviously relevant to my attempts to arrive at an overall appreciation of the parties’ current financial circumstances, for the purpose of determining the interim applications.
Mr Tennant’s evidence is that he has now sold some livestock. He says he used the sale proceeds received from this towards meeting mortgage repayments and paying other farm expenses.
It seems the farm is around 75 per cent of these are productive. Mr Tennant says that there is a certain amount of work involved in the maintenance of the farm, such as mowing and slashing each week. He performs that and seeks to be able to perform that into the future.
Mr Tennant also says that he is the person who has done most of the administration (if not all of it) for the venue aspect of the business: that he has been the person to ensure the return of bonds to customers, to ensure that contractors are paid and to engage cleaners. His evidence, it seems, is to the effect that Ms Tennant’s involvement has been to respond to emails and to deal with queries.
Insofar as the funds held in the T bank account are concerned, it seems accepted that the sum of $81,212.33 has been frozen by the bank as a consequence of the receipt of a complaint about the joint account, the loan secured over the C Town property and the guarantee.
I accept, for the purposes of determining the interim application, that this is the case: that is, I accept that, whilst the funds are in an account in Mr Tennant’s name, they are currently “frozen” and not available to either party at this point in time.
I have arrived at this conclusion given the correspondence from T Bank to Mr Tennant dated 16 June 2017, wherein he was advised that the bank had determined to freeze the funds held in this account as it was conducting an internal investigation into the matters raised in the complaint lodged with it.
Following discourse with the legal representatives during the hearing, I was able to ascertain that there are, in a sense, three pots of money available to the parties at present. The first of these seems to be those funds standing in Mr Tennant’s personal NAB account. Counsel for Ms Tennant submitted these were in an amount of $60,000.00 to $65,000.00, a figure accepted by Mr Tennant’s legal representative.
Secondly, the parties are agreed that they are owed $45,000.00 by Company H, an entity which purchased the farm produce from them.
What they do not agree about is the total of the other funds available.
Ms Tennant’s Counsel submitted that the figure was $95,000.00 (which represents the $81,000.00-odd held in the T account and the nearly $15,000.00 held in Mr Tennant’s personal NAB account) whereas Mr Tennant’s legal representative accepted that $81,000.00 was “frozen” but did not accept otherwise the remaining $15,000.
As I understand it, Mr Tennant accepted that there was $45,000.00 owing by Company H, no less than $81,000.00 frozen by T Bank, and $60,000.00 currently in his NAB account.
As I have said, it seemed agreed between the parties that Mr Tennant would transfer the balance in his National Australia Bank account into the joint account an order will issue to give effect to that agreement.
At present, I should also record that Ms Tennant’s case involves her assertion that she was the party primarily responsible for managing the venue aspect of the joint venture, primarily in terms of taking bookings. She accepts that Mr Tennant was responsible for maintenance of the C Town property and the management of the farming aspect of the joint venture, although on her case he was assisted by others.
Consequently, it seems to me, even on an interim basis, that it was accepted by the parties, in a sense, that Mr Tennant did much of the day-to-day work associated with the operation and management of the farming aspect of the joint venture and the landscaping and management of the venue aspect of the joint venture occurred: further, whilst it seems likely that Ms Tennant was involved in the bookings, email and promotional aspects of at least the venue aspect of the joint venture.

Mr Tennant’s evidence is that he is currently paying $400.00 per week rent for the premises in which he lives. Obviously, given that she lives in the residence on the C Town property, Ms Tennant does not at present have any rental payments to meet.
Both parties clearly need resources from which to support themselves.
It is within this very broadly summarised context, then, that I turn to consider the specific interim relief sought by the parties.
In doing so, I make it clear that my primary intention and focus is upon: attempting to set in place a mechanism by which the various “arms” of the joint venture can continue to operate; to enable both parties to be provided with all relevant documents associated with the operation of the same; to fashion orders that will enable both parties to be financially supported on an interim basis; to ensure that there is left available to the joint venture sufficient funds by way of cash flow to enable the businesses to continue to operate.
In the event that other orders are later sought by the parties once further disclosure has been undertaken, then, of course, that is obviously a matter entirely for them.
Mr Tennant seeks an order that would afford him sole use and occupancy of the C Town property and which would restrain Ms Tennant from attending at the same. As I have said, at present she lives at the property. At the time of the parties’ separation, Mr Tennant arranged to move into rental premises.
He says that, whilst he lives in the rental premises, he spends a “significant amount of time” at the home of Ms N, his new partner. His evidence is that Ms Tennant has commenced a relationship with Mr N and spends all of her time at his home. Ms Tennant does not accept these contentions.
Whilst that is the case, I do note that Ms Tennant’s evidence is that, after separation, she has continued to travel to Sydney and has found herself in the position of needing to travel to Sydney more often because she needs to continue to operate her business so as to obtain income.
Whatever the reason underpinning her travel, it seems that, on her case, she is likely to be away from the C Town property on occasions for the purpose of income earning.
It is clear that the Court has the power to make orders for sole use and occupancy of premises, provided that such order is considered proper in the circumstances of the case: see sections 114(1)(f) and (1)(b) of the Family Law Act 1975 (Cth).
It is also clear that authorities such as Davis & Davis[1], Page & Page[2], Sieling & Sieling[3], S & S[4] establish a number of propositions. These include the following:
a)the applicant for an order bears the onus of establishing the basis on which the Court would be persuaded to exercise the discretionary injunctive power to order (here) Ms Tennant to move out of the C Town property so as to provide him with sole use and occupancy of the same; and
b)an order for sole use and occupancy of a formerly shared premises, being an exercise of the discretionary injunctive power, should not be made lightly, particularly given that the Court will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim; and
c)there must be circumstances arising out of the marital relationship which make it necessary to restrain temporarily a spouse from using his or her property rights; and
d)in determining the manner in which it will exercise the discretionary power, relief should not depend merely on the balance of convenience or hardship, but the Court should have regard to the means and needs of the parties, the conduct of the parties, should also properly balance the hardship to each party of making or refusing to make the orders sought.
[1] (1983) FLC 91-319.
[2] (1981) FLC 91-025.
[3] (1979) FLC 90-627.
[4] [2002] FamCA 59.
The Court clearly must bear in mind the comments of the Full Court in S & S[5] at paragraph 38 that:
... an injunction that prohibits a person from living in their own home is of such gravity that it would only be granted in exceptional circumstances.
[5] (2002) FamCA 59.
The Court there also adopted the sentiments expressed in G & J[6] (Ouster order) where the English Court of Appeal cited with approval a passage from Lloyd J in Burke v Burke[7] that:
It will never be forgotten that an ouster order is a very serious order to make. In fact, an ouster order has previously been described as drastic and as being a form of order that should only be made in cases of real necessity.
[6] (1993) 1 FLR 1008.
[7] [1987] 2 FLR 71.
Further, it is clear that, given s 114 requires that the grant of an injunction be proper, there must obviously be an appropriate factual basis supporting the grant of such relief.
In the present case, it seemed to me to follow – and the parties, I think, ultimately accepted – that whichever of them should be found to be primarily responsible for managing the farm and venue aspects of the joint venture on an interim basis should be the person who lives in the residence located on the C Town property. So much seems to me, with respect, to make perfect sense.
It is clear that living in the residence on the C Town property would enable issues associated with the operation of both the farm aspect and the venue aspect of the joint venture to be attended to immediately and efficaciously.
Given this, then, I turn to consider each party’s application, in essence, to restrain the other from being involved in the day-to-day operations of the company and operation of the business.
It is clear, I think, on the evidence provided by each of the parties that, at present, they have been unable to demonstrate the ability to cooperate in the management of the nut farm and venue aspects of their joint venture.
It seems accepted that the time has come for one of them to assume the mantle of responsibility for the day-to-day operation and management of these aspects of their joint venture.
Taking into account the submissions made by the legal representatives who appeared for each of the parties and the evidence provided by each of them, I have determined, on an interim basis, that the proper conclusion and appropriate orders are those which would see Mr Tennant undertake that responsibility.
I have arrived at this decision given Ms Tennant’s evidence that, during the course of their relationship, he was the person primarily responsible for the financial management of their joint venture; her evidence that he is the person who was responsible for various tasks associated with the maintenance of the farm and the general maintenance of the venue itself; that he is the person who has attended to, and dealt with, minor aspects and difficulties associated with that.
It seemed to me, on the evidence, that if Ms Tennant were the person to assume responsibility for the management there may well be further costs incurred associated with her employing others to undertake the tasks that Mr Tennant is capable of doing, and which he has historically undertaken.
It is for those very brief reasons in relation to that aspect of the application that I have determined that it is appropriate to make orders that Mr Tennant have sole responsibility for the management and operation of the company and the businesses which are run, in a sense, within it.
I have also, though, determined that it is appropriate that, in the course of his operation and management of the company and the businesses, Ms Tennant be afforded access to the banking records of the same and that he be required to cause all funds received through the operation of all aspects of the joint venture (other than, of course, Ms Tennant’s own business) to be paid into the joint bank account.
In order to cause the receipt into that account of funds currently retained by Company H but owing to the parties generally, I intend to make an order authorising Company H to pay the outstanding amount into the bank account, and, thereafter, to pay all funds owing to the parties from time to time (and by parties, I mean to encompass Company F) into this account.
I intend to make orders regulating Mr Tennant’s operation of the account insofar as I intend to restrain him from making any payments from it without Ms Tennant’s written authorisation, other than those which are specifically dealt with in the orders. The reasoning which underpins this decision and which provides the basis for the orders which I will make is that I am also conscious of the necessity of ensuring that Ms Tennant is afforded appropriate comfort about Mr Tennant’s management of accounts on an interim basis.
The purpose of the orders that I will make is to ensure that both of the parties are provided with funds.
It is also to ensure that: loan repayments are met; that business expenses are paid; that Mr Tennant refunds those bonds which are required to be refunded to people who have made bookings for the use of the venue; each party (as I have said) receives funds; Ms Tennant is assisted to meet any rental payments up to an amount of $450.00 per week; loan repayments and some expenses associated with her motor vehicle are met; she is repaid amounts she has already expended in meeting business expenses, provided that she provides to Mr Tennant invoices substantiating the same.
I also intend to make an order that, from the jointly owned funds in the joint bank account, Ms Tennant is paid the sum of $3,200.00, which is the amount outstanding at present on her Mastercard. That is to ensure that she is able to meet that liability. I have arrived at the conclusion that this is proper in light of the evidence that Mr Tennant has caused certain personal liabilities of his, incurred post-separation, to be paid.
I am not persuaded at this point in time to make an order that Ms Tennant be required to repay the sum of $4,500.00 to the joint bank account. These seem to be funds she removed from that account – in fact, she accepts that she withdrew $4,700.00 on 14 June 2017, but she says she did so in circumstances where Mr Tennant had, between 1 May 2017 and 17 June 2017, withdrawn about $15,300.00 and paid that towards expenses which she does not accept were business expenses.
I am not persuaded that it is proper to make an injunctive order requiring that Ms Tennant repay funds in the amount of $4,700.00 at this point in time.
I am easily satisfied that, in the event that, at final hearing, such funds are established as being those which should properly be repaid by her, there will be sufficient property from which adjustments can be made to take into account her withdrawal of those funds.
The same, of course, applies to funds withdrawn by Mr Tennant.
It is clearly established and I am easily satisfied that it is appropriate in the circumstances and proper to make an order restraining both of the parties from selling, encumbering or disposing of any asset owned by D Pty Ltd and the farming venture and the venue venture and the wife’s business venture, other than in the ordinary course of business.
It is trite to observe that the rationale underpinning such an order is to ensure the preservation of the property of the parties until further consideration can be made about its disposal and/or the proceedings for final property adjustment orders between them are resolved.
In arriving at the quantum of the payments which I intend to order be made from the joint bank account, into which Mr Tennant will be required to deposit the funds received from the farm aspect of the joint venture and the venue aspect of the joint venture, I have taken into account his evidence and the relief he primarily sought: namely, he sought that there be paid from the company accounts the amount of $500.00 to Ms Tennant per week and the costs associated with the car repayments of the car operated by her and that he receive $1,000.00 per week, together with rental costs of up to $450.00 per week until he returns to live at the C Town property; that is, as the person, it seems, mostly responsible for the financial management of the enterprise, he proposed that it pay out a total of nearly $2,000.00 per week.
The orders I intend to make will see Mr Tennant receive $500.00 per week, but, of course, he will be living in residence at the C Town property. They will see Ms Tennant receive $500.00 per week and up to $450.00 per week for rent; the loan repayments will also be paid. I have arrived at those figures using, as I have said, the guidance of the orders proposed by Mr Tennant himself.
Ms Tennant sought extensive orders for disclosure. I am satisfied, in the circumstances, that it is appropriate to make orders regulating each party’s obligation to make disclosure. Whilst it is clear that such obligation is an ongoing one, as provided for by the Rules, I consider it appropriate and proper to set out with particularity those aspects of disclosure to which particular focus should be paid.
I have made a number of other directions fairly consistent with those sought by each of the parties, including orders which would facilitate their attendance at mediation in the event that that is determined an appropriate course by them.
I have not been persuaded in the circumstances and on the evidence before me, that it is appropriate, proper, or that the circumstances justify it or that it is just and equitable that I make an order by way of either partial property settlement or interim litigation funding in the manner sought by Ms Tennant.
I have arrived at this conclusion because I am not satisfied, on the evidence before me, that there exists a fund from which the payment sought could be made without risking the ongoing operation of the joint venture.
Whilst it may be said that any adjustments to take into account any payment made to Ms Tennant to assist her in meeting litigation expenses could be taken into account in the overall property settlement proceedings and that there exists sufficient equity in the C Town property to make this a reality, I am not necessarily persuaded at present that funds exist and which could be made available without putting the ongoing operation of the various aspects of the joint venture at risk.
In arriving at the conclusions that Mr Tennant is the person to whom responsibility for the ongoing operation of the farm and venue should be entrusted on an interim basis, I have also taken into account and placed significant weight upon the fact that Ms Tennant has sought, in other proceedings in another jurisdiction, that the property be sold. I consider that her actions in this regard are inconsistent with the actions of someone who wishes to retain the property, whereas it is clear that Mr Tennant seeks in these proceedings to do so.
I am, therefore, persuaded that it is appropriate to afford to him that opportunity, provided there are the safeguards imposed, by the terms of the orders I make, around his management of the businesses.
In arriving at my conclusion in relation to the application for the provision of litigation funding, I have also taken into account that Mr Tennant does not currently pay his legal representatives on an ongoing basis; rather, they are acting for him on a deferred fee basis. I accept, therefore, that it is not necessarily established that he has available to him, in a liquid form, the capacity to meet legal fees on an ongoing basis. This is, it seems to me, a further very relevant factor in the overall determination.
In the event that, with the benefit of disclosure ordered today, Ms Tennant can establish that there are funds surplus to the ongoing operation of the joint venture, which could be utilised by her in meeting legal expenses, then, of course, it is always open to her to reapply to the Court with the benefit of that evidence.
For these reasons which I have expressed orally, I make orders in terms of the Minute signed by me and placed with the papers. I direct that a copy of the order be forwarded to the parties forthwith. I direct that a copy of the Reasons for Judgment delivered orally, once settled, be provided to the parties.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 11 October 2017.

Associate:

Date: 11 October 2017

[2017] FamCA 839

11 October 2017

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Costs

Remedies

Expert Evidence

Procedural Fairness