Tilley and Owen

AMENDED PURSUANT TO RULE 17.02 OF THE
FAMILY LAW RULES 2004
2^nd AMENDED SET OF REASONS
FAMILY COURT OF AUSTRALIA

TILLEY & OWEN

[2015] FamCA 11

FAMILY LAW – PROPERTY – Interim property settlement – Dispute about interim spousal maintenance and whether order was discharged – Found order extant – Orders for property preservation to include drawing down equity on the home for part property settlement and arrears of maintenance – Orders for the winding up of various entities – Absence of the husband from personal attendance where he wanted to attend by telephone – Number of calls to the husband unsuccessful – Wife permitted to proceed in husband's absence.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250)
Deputy Commissioner of Taxation & Kliman & Kliman [2002] FamCA 629
Hatton v Attorney-General (Cth) and Others (2000) 26 Fam LR 570
ICAP Pty Limited v Moebes [2009] NSWSC 306
National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Paris King Investments Pty Ltd v Rayhill[2006] NSWSC 578
Portal Software v Bodsworth [2005] NSWSC 1115
Strahan & Strahan (Interim property orders) [2009] FamCAFC 166
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90
Zschokke& Zschokke [1996] FamCA 79; (1996) FLC 92-693

APPLICANT:

Ms Tilley

RESPONDENT:

Mr Owen

FILE NUMBER:

MLC

3099

2013

DATE DELIVERED:

20 January 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

14 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Ingleby

SOLICITOR FOR THE APPLICANT:

Forte Family Lawyers

THE RESPONDENT:

No Appearance - Respondent was unable to be contacted by telephone from the court room after four attempts

Orders

The application of the husband for an adjournment of the wife’s application in a case as amended and filed on 5 December 2014 is refused.
That the wife has leave to proceed with her application in the absence of the husband.
The husband’s objection dated 22 December 2014 to the release of the documentation produced pursuant to a subpoena to the Department of Immigration and Border Control is dismissed.
That any information provided under the subpoena referred to in paragraph 3 of these orders is released for inspection and copying.
That by 4 pm on Friday 30 January 2015, each of the husband and the wife sign all such documents as may be required to facilitate the wife to have access to the Westpac Rocket Investment Loan Account (…71) and she be at liberty to draw against that facility (this order being sufficient authority for her to do so without further authority from the husband):
(a)       $114,000 (representing arrears of spousal maintenance);
(b)       $140,929.63 (representing her legal costs);
(c)       such sums as may be necessary to pay the accountant appointed pursuant to these orders invoices in respect of work done and authorised by paragraphs 7 and 8 of these orders;
(d)       such sums as may be necessary to pay for the repairs required for the sale as determined by paragraph 13 of these orders;
(e)       to pay the project manager appointed pursuant to paragraph 9 of these orders his invoices.
That the sum referred to in paragraph 5(b) hereof shall be deemed part property settlement in favour of the wife.
That by 4 pm on 30 January 2015, the husband and the wife do all things necessary and sign all such documents thereafter as presented to them to:
(a)       jointly appoint B Accountants to undertake the tasks following;
(b)       wind up the entities referred to in paragraphs 2.1 and 2.2 of the wife’s application in a case filed 5 December 2014;
(c)       instruct the said accountants to complete the financial statements and tax returns for the said entities including in relation to the period prior to the winding up; and
(d)       instruct the said accountants to keep both husband and wife informed in writing of the progress and the costs of the said activities.
As and when requested by the said accountants, the husband and wife provide any relevant information or documents to assist the process referred to as the winding up of the entities and the completion of the relevant returns and upon their completion, subject to being satisfied as to the correctness of the documents, sign and return them for lodging.
That by 4 pm on 30 January 2015, the husband and the wife do things necessary including signing any such document as may be required to appoint one licensed estate agent and one project manager (who is not to be the husband unless the parties otherwise agree) for the purposes of determining the matters set out in paragraph 12 of these orders.
That if no agreement is reached between the parties within the times stipulated in paragraphs 9 and 12(b), either party may forthwith make an urgent application supported by affidavit(s) for the determination of that issue and to the extent practicable, the matter be placed before the Honourable Justice Cronin.
That each party otherwise have liberty to apply including as to orders under s 106A of the Family Law Act 1975 and to the extent practicable, the matter be placed before the Honourable Justice Cronin.
That upon the appointment of the estate agent referred to in these orders, the parties immediately do all things necessary and sign any required document to:
(a) provide the agent with the list of work suggested by either party and the agent shall decide what items are necessary to be done before and to enhance, the sale of the home; and
(b) list the home at C Street, Suburb S on the market for sale on such terms as may be agreed and failing agreement as determined by the Court.
That upon the appointment of the project manager referred to in these orders, to the extent necessary, the parties immediately do all things necessary and sign any required document to authorise the said project manager to contract the repairs as indicated by the agent relating to the home at C Street, Suburb S.
That upon the settlement of the sale of the said home, the proceeds be applied as follows:
(a)       first, to pay all costs, commissions and expenses of the sale;
(b)       secondly, to discharge the mortgage secured in favour of Westpac Banking Corporation encumbering the title to the home;
(c)       thirdly, to pay to the wife $123,408 by way of partial property settlement;
(d)       fourthly, to pay to the wife for payment out to her lawyers, the sum of $102,745 for legal costs by way of partial property settlement; and
(e)       fifthly, to pay the balance remaining into an interest bearing account in the names of the husband and wife to be held by the lawyers for the wife until agreement or further order.
That by 4 pm on 30 January 2015, the husband do whatever is required including signing any documents in relation to the D Superannuation Fund for the 2012 and 2013 years and in particular those documents referred to in the letter dated 1 October 2014 from the wife’s lawyers.
That arising out of these orders, should any tax refund fall due to the companies or the parties (other than as may be directly as a result of the tax imposed on earnings from their personal exertion), it be paid into the investment account held by the solicitors for the wife described in these orders.
That arising out of these orders, should any money fall due from the liquidation of the companies and trusts referred to in these orders, it be paid into the investment account held by the solicitors for the wife described in these orders.
That arising out of these orders, should any tax liability arise for the companies or the parties (other than as may be directly as a result of the tax imposed on earnings from their personal exertion), as a consequence of the winding up of the relevant entities, it be paid by the wife from the account referred to in paragraph 5 of these orders unless that occurs after the sale of the home in which case, it shall be paid from the investment account held by the solicitors for the wife described in these orders.
That each party file amended initiating application and response respectively by 2 April 2015 setting out with particularity what each party is seeking by way of final orders.
That by 4 pm on 30 January 2015, the husband have leave to file and serve an application in a case supported by affidavit material if he wishes to set aside these orders provided he can establish:
(a) he was prejudiced by the orders; and
(b) he had been available at all times to participate by telephone and, through his mobile telephone provider, he explains how the calls registered that his telephone was engaged.
That there be a departure from the administrative assessment of child support for all assessments between 2 July 2013 and 30 June 2015 whereby the adjusted taxable income of the wife is fixed at nil.
Each party has until 6 February 2015 to serve upon the other a list of documents required for production and within a further 14 days thereafter, such documents be produced for inspection unless there is provided to the other party making the request a letter signed by the recipient party personally stating:
(a)       that such documents are not in that person’s possession or control; or
(b)       the documents are subject to legal professional privilege; or
(c)       the documents have already been provided and if so a statement shall when they were so provided.
That save as to costs, the application of the wife filed 5 December 2014 and the response of the husband filed 12 January 2015 are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tilley & Owen 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

FILE NUMBER: MLC 3099 of 2013

Ms Tilley

Applicant

And

Mr Owen

Respondent

REASONS FOR JUDGMENT

Ms Tilley (“the wife”) and Mr Owen (“the husband”) commenced proceedings in the Federal Circuit Court about financial matters. In 2014, Judge O’Sullivan transferred the proceedings to this Court.

The background to this discrete hearing

The file is large and, as the husband complains, there have been numerous hearings. The matter should have been concluded by now based on what seems a relatively modest lot of assets, a long relationship and the fact that the wife currently has the major parenting role in the lives of the children.
The parties live in different states of Australia. To the extent that the husband would have this Court infer that the delays and lack of settlement are the fault of the wife, I would not do so. The publicly expressed frustrations of Judge O’Sullivan when his Honour had the case on a number of occasions, are a testament to the fact that there is an entrenched position here and the husband’s lack of legal representation is not assisting. The complaints by the husband about the wife refusing to negotiate or settle, apply equally to him. He needs to understand that the Court’s role is to hear disputes upon admissible evidence not just read a stream of his consciousness.
In this hearing which had been allocated to the judicial duty list, the husband did not participate. Whether he wished to do so or not is a vexed question.
The wife’s application had been in the husband’s possession since 1 December 2014 (a date he acknowledged he had received it) but it was not until 12 January 2015 that he responded. The sequence of events needs consideration.
After the wife filed her application in late November 2014, she sought and was granted, the issuing of a subpoena to produce documents addressed to the Department of Immigration and Border Control. It was returnable on 7 January 2015. The husband clearly had been provided a copy.
The email correspondence on the Court file upon which I have not relied to make any determination does put the husband’s absence from the proceedings before me and also the subpoena hearing in some context and it was curious.
At the subpoena hearing on 7 January 2015, at 10.22 am, the husband emailed to the case co-ordinator saying that he had been sitting with his mobile ready for the Court’s call at 9.30. I digress here to note that whilst that was the time of the hearing, so it was for many other litigants that day. Parties who seek the indulgence of the Court to avoid personal attendance must understand that they have to be at the ready at any time. That is relevant here for reasons which will become apparent.
At 11.46 am, the Court responded saying that the husband’s mobile was contacted and on “both occasions” an “engaged” signal resulted. I note from the court records that there were three calls rather than two and they were some time apart.
The husband then wrote that he had not received a call. He wrote that others had got through to him (which may have accounted also for the engaged signal) but he said it was frustrating that it was not working. He asked for a number whereby he could call but that could not be appropriate where he knew or should have known that he was in a list of cases. He had significant history of the court system and the way it worked because of his personal attendances particularly before Judge O’Sullivan.
It transpired that, on the husband’s later affidavit evidence, he was in Singapore until 10 January. One might wonder whether he needed to provide the international telephone code but in any event, he did not tell the Court or indeed the wife at that time, that was where he was. He subsequently gave a cryptic explanation for not telling the wife about his whereabouts.
The reason for his desire to be involved in the subpoena hearing was that he had an objection to the release of the documents. I shall deal with that in a moment because the objection had no merit. The registrar referred the matter to the Judicial Duty List.
On 24 December 2014, the husband wrote inappropriately to my associate setting out his concerns about the wife’s conduct of the litigation. He may have copied in the wife’s lawyer but the associate to a judge is not to be the repository of a litigant’s complaints. In this case, the husband attached various negotiated discussions to his correspondence and that was highly inappropriate. The judge’s task is discrete and that is to hear the matter on the evidence presented with an application.
The husband would do well to note that the Court has provided a case co-ordinator for contact purposes. Having said that, the staff of the Court are not permitted to give advice. The Court has done its best to set up a website (as have other jurisdictions) to enable litigants to understand various processes. Access to legal advice for those who cannot afford their own should be through the legal aid bodies and the community legal services. The husband has had access to lawyers earlier in the proceedings and the wife, as part of the application, sought a distribution of equity to enable her to be represented; the husband has chosen not to take that course.
When the husband contacted the Court on 7 January 2015, in addition to the contact mentioned above he really otherwise wanted permission to attend the interim hearing on 14 January by telephone. He gave as his reasons that he was on holidays with the children and had booked accommodation which could not be refunded. He said he would have to have the children with him when he attended the hearing. He had told the case co-ordinator a different story but that does not affect the position. He noted that the wife’s solicitor did not oppose his attendance.
He was then provided with the relevant form to enable the making of an application for electronic attendance. His application, when returned, was granted and he was so advised but the email to him read:
Please note that your matter is listed in the Judicial Duty List with at least 14 other cases that day.
I cannot therefore give you an exact time that the court officer will contact you.
You will need to have your mobile free (and not engaged on other calls) pending your matter coming before the Court that day.
As this was the same day as the subpoena hearing had occurred, the email went on to refer to the fact that earlier that day, the Court had been only able to get the engaged signal.
A subsequent email reiterated the need for the husband to be ready for a call. He, in return, expressed concerns about what had happened at the registrar’s hearing noting that emails had been effective forms of communication.
At about 11 am, in a busy courtroom and in my presence, the husband was telephoned twice and each time, what appeared to be an engaged signal was heard. The matter was then stood down until later and at about 12 noon, two further calls were put through in the open courtroom and the same or similar signal was heard.
Having regard to the fact that it was drawn to my attention that the husband had not told the Court or the wife that on 7 January he had been in Singapore yet the same problems arose this time, I did not see it as appropriate for the court to start endeavouring to send emails to try and ascertain the problem.
Counsel for the wife did not seek to have the husband’s response dismissed or struck out. Indeed, he asked that I take the husband’s material into account and I have done so.
The husband’s application began by seeking an adjournment but otherwise it contained a number of proposed orders which, with some minor variations, indicated that the parties were of one mind. Otherwise, he sought that the wife’s application be dismissed.
The husband filed two supporting affidavits. In a large document, he began by saying that there was insufficient time to prepare or seek advice. Despite the complexity on the face of the documents, I consider the issues were simple. Importantly, the facts about the wife’s impecuniosity and the absence of financial support from the husband would have been well known to him. He described himself as unemployed so there could be little doubt that he was saying he could not contribute to the financial support of the family even if he did have the legal obligations to do so.
In his affidavit, the husband set out matters which were clearly confidential communications and I have ignored those. He set out a variety of matters dating back to the hearing before Judge O’Sullivan. Save for having to check the orders to which he referred and comment upon them in these reasons, the husband provided little by way of evidence. Thus, he had 6 weeks to prepare for the hearing.
Despite what he said about seeking advice, it would not seem to have been a case in which he might have needed to seek legal assistance because he has appeared without lawyers for some time. Additionally, even if he did wish to obtain advice, he had the weeks before any lawyer Christmas shutdown. Time did not seem to be the husband’s problem but rather something to do with his having the children. My examination of the size of the file and the transcript of the hearing before Judge O’Sullivan (to which the husband drew attention) indicates that the husband is an experienced litigator. As I have indicated earlier about the subpoena issue, he understood what the family law rules said. He was able to file the objection form. He was able to access the various correct forms. He is familiar with the Court’s portal. My impression was confirmed by the two affidavits he filed one of which ran to over 40 pages and its narrative contained 115 paragraphs. Thus, with some 6 weeks to contemplate the wife’s application, it was perplexing why, even if he had the children on holidays and was in Queensland, he could not have proceeded where I was satisfied there were matters that required urgent attention.
There was a justification for the wife to ask for the matter to proceed. Because of the efforts to which the Court had gone and what had happened on 7 January in the courtroom, I was not convinced that the husband was being serious about his desire to attend.

Having regard to all of those matters, I determined at the time that the wife should be at liberty to proceed in the absence of the husband. As a precaution however, I indicated at the conclusion of the matter that I would also give the husband leave to bring an application to set aside the orders to which he might take objection if he could establish on objective evidence that he was prejudiced by them and that he had been available at all times and, through his mobile telephone provider, he could explain how (as had happened previously with the registrar’s hearing) the calls registered that his telephone was engaged. To that end, in my view, he would need some expert evidence or certainly something beyond his assertion that he was so present.
I turn then to the proceedings themselves.

The objection to the subpoena

On 19 December 2014, the solicitors for the wife sought to issue a subpoena to the Department of Immigration and Border Protection. The Registrar must have been satisfied on a prima facie basis as to the relevance of what the subpoena sought because the document was issued. It sought copies of all movement records and passenger cards for the husband for the period from 4 March 2014 to now. As was required, a copy of the subpoena was provided to the husband. That conclusion is evident because the husband (but not the relevant Department) filed an objection to the release of the information provided under the subpoena.
The husband’s objection contained 7 points but in my view, they are not grounds to sustain any such objection. Paraphrasing, the husband said:
·The information had been provided in an affidavit in February 2014 and that had followed with a subpoena which supported his evidence;
·    This was the 7^th “application” for a subpoena and he had not previously objected. He had supported the provision of information about overseas travel;
·    The requested information did not relate to the application pending before the Court;
·    He had not sought to hide the fact that he travelled overseas but this course of action was something to do with the failure of the wife to provide financial details about her “various trusts, companies and loans”. To do what the wife was doing was against the “intention of the court regulations” which fixed a maximum of five subpoenae;
·    The timing of the subpoena would prevent his inspection of whatever was provided;
·    Any final hearing would not be until 2016 so this was unnecessary.
I shall refer again below to the affidavit of the husband but in it, he said the same sorts of things as he said in the objection notice.
Counsel for the wife submitted that this subpoena was relevant because the husband had been recently found to have been in Singapore where no such travel had been mentioned to the wife. It was the husband’s affidavit material that confirmed he had been there and indeed, on my reading of it, when he swore the affidavit, he had only just returned to Australia.
Rule 15.26 of the Family Law Rules 2004 ‘provides that if a person having sufficient interest’ in a subpoena objects to the production of a document, that person has a right to be heard before information or documents are released. There can be little doubt that the husband fits into the category.
The determination of any such dispute should be guided by the principles referred to in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at p 381. That approach was approved by the Full Court of this Court in Hatton v Attorney-General (Cth) and Others (2000) 26 Fam LR 570.
In Waind and Hill it was said amongst other things that it would be an improper use of the subpoena if it were not sought for the purpose of the litigation, but for some spurious purpose, such as to inspect the documents in connection with other proceedings, or for some private purpose. That seems to be the assertion by the husband here. The wife therefore must show there is relevance in the material sought to the substantive dispute.
On the balance of probabilities, nothing I read indicated any improper purpose but I turn to the authorities.
Beaumont J in Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 stated that the determination of whether a subpoena was issued for a legitimate forensic purpose depends on, amongst other things, an analysis of the motive of the issuing party. His Honour asked whether the material sought had an apparent relevance to the issues in the principal proceedings. That is another way of asking whether the subpoena has a legitimate forensic purpose. The determination of that question depends upon the position taken by the wife. In other words, why is she doing it?
In Portal Software v Bodsworth[2005] NSWSC 1115 a case involving an application to set aside a notice to produce, Brereton J described the test in seeking to set aside a notice to produce (which in my view is similar to that of a subpoena) as being whether the documents sought by the notice to produce had a sufficient apparent connection to justify their production or inspection. His Honour went further and said that the test was satisfied if the documents called for could possibly throw light on the issues in the main case. This is the “on the cards” test but it is one which has not been broadly embraced in civil cases (see ICAP Pty Limited v Moebes [2009] NSWSC 306)
This Court does not have pleadings so the wife needs to show how the material may influence the Court to make the orders sought.
This dispute is not only about financial matters; it also about children. Counsel for the wife raised not only the fact that the husband’s movements were being questioned but also his financial position. In this case:
(a)      there is a disclosure obligation on the parties about all of their financial circumstances;
(b)      there is obviously no trust between the parties; and
(c)      the court’s jurisdiction concerning the substantive orders to be made is discretionary which must mean that the Court needs to ensure that the parties have every opportunity to put comprehensive evidence before it.
In some cases, there is a fine line between “fishing” and a genuine forensic purpose. In this Court, “fishing” tends to arise and is recognised where a party is endeavouring to find out whether there is evidence which would support a case at all. In a “fishing” case, a subpoena cannot be used as a “substitute for discovery” (see Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250). That should not arise in this Court because of the strict disclosure obligations on each party. But, a “fishing” case is different from one in which the party is seeking to clarify an issue already in contention and about which the evidence is uncertain or clouded. I turn then to the husband’s seven points of objection.
The fact that information had been provided in an affidavit in February 2014 and that had followed with a subpoena which supported his evidence is not a basis to establish this subpoena is not relevant or that this is not a legitimate forensic exercise or that it is “fishing”. In cases involving travel, particularly where children are involved, it should normally be expected that parents would keep each other informed of their international whereabouts. Indeed, the husband said that his international travel was being used by the wife as a basis to stop his time with the children. Nothing I read in the husband’s affidavit indicated that the wife had undertaken this subpoena for that or for a purpose designed to harass him or to obtain information to use in another proceeding. She clearly wanted to know where he had been and the matter I earlier mentioned about his being in Singapore during a hearing just adds to the intrigue. The husband described himself as unemployed yet was able to afford international travel. The husband apparently did not tell the Court that he was in Singapore and that may have accounted for the inability to contact him.
His point that this was the 7^th “application” for a subpoena is also irrelevant. The registrar was satisfied as to the basis of its relevance and he had previously apparently provided information about overseas travel. The problem seems to be that the parties do not trust one another so everything the husband says will be cross-checked by the wife. It was curious that he objected this time but not previously in circumstances where, according to the wife, she wanted specific information that she clearly did not have.
His third point can simply be dismissed based upon what I have already described as the low threshold for establishing relevance to a particular proceeding. In this case, there are a myriad of orders pursued many of which have the clear flavour of financial problems. The husband’s international travel could be for a holiday but one wonders how that could be afforded. If it was not for a holiday, presumably it had something to do with work. That was something in which the wife did have an interest. The requested information did therefore relate to the application pending before the Court.
The fourth point is connected with the third. He said he had not sought to hide the fact that he travelled overseas but that was certainly not the position of the wife. He then claimed that this course of action was something to do with the failure of the wife to provide financial details about her “various trusts, companies and loans”. That was supposition.
Part of his fourth point was that the rules set a limit. That limit is a matter for each individual case and if there are justifiable circumstances to do so, the Court can allow the issuing of more subpoenae as is indicated by chapter 1 of the rules. This is a case where I would have granted such relief had I been the registrar.
His next point was that the timing of the subpoena would prevent his inspection of whatever was provided. The nonsense of that objection must simply be seen in that it was his information. He well knew where he had been.
His final point was that a final hearing would not be until 2016 so this process was unnecessary. Two observations can be made. First, I do not know where the time estimate came from. It is certainly not consistent with the Melbourne Registry’s approach. Secondly, discovery is an ongoing process until the completion of the hearing.
On the basis therefore of the assertion of apparent relevance which I accept, the objection is dismissed and the documents should be released for inspection and copying.

Background

The husband and wife have both business and property interests which although not precisely valued, were said by counsel to be worth within the range of $2.5 million to $3 million. In his affidavit, the husband seemed to dispute that because he said that what the wife was seeking was “potentially” higher than the “net assets of the marriage”. I do not see how he can argue that when (at least in February 2014) his financial statement showed equity of approximately $1 million. Despite that, I am satisfied on the evidence of both parties that there are financial problems. For example, there is a matrimonial home which is said to be in a deplorable state. The children are living there with limited access to hot water and the house is possum-infested. Both agree that it needs work done on it. The husband is qualified in the building industry but his application seemed to suggest that he wanted the wife to remain there whilst the house was repaired. Having regard to its state as described by the wife, that was untenable.
The parties ironically have a bank facility which enables them to draw up to $2 million. Whilst such a significant debt presumably could not be serviced, its use may alleviate the immediate problems and the sale of the home could result in the discharge of the debt.
It was said and it does not seem to be contrary to the husband’s position, neither party can keep the property. The husband has not lived in the house for 3 years.

The application and response

The wife filed her application for interim orders on 28 November 2014 returnable on 14 January 2015. The registrar was satisfied that there was some urgency about the wife’s position. The wife’s affidavit supported by an affidavit from her solicitor said that she urgently needed the release of funds from the drawdown facility to support herself. This was in the context of the husband’s failure to comply with a spousal maintenance order and absent the payment of child support. Her material also set out that she had borrowed money, could not pay her legal fees and could not maintain the existing assets including the major one she wanted sold. I am satisfied that there was justification to put the matter before the Court on an urgency basis.
The significance of these last points is that the husband complained that he had holiday time with the children during the proposed hearing period. Against that however, he lives in Queensland anyway. If the focus of the wife’s attention was on the matters that I have mentioned, then a delay into February or beyond was not reasonable.
The wife sought orders which I shall summarise as follows:
·    $100,000 from the drawdown facility to satisfy the spousal maintenance arrears or by way of partial property division;
·    $140,829.63 for legal costs incurred either by way of a costs order or as partial property settlement;
·    The sale of the home after the completion of works on it and the proceeds be applied to discharge encumbrances and then, depending upon what order was to be made in the first dot point above, the wife be paid $123,408 for living expenses and/or spousal maintenance and $102,745 for legal costs and the balance otherwise remain in trust until final hearing;
·    A departure from the administrative assessment of child support but only in respect of the adjusted taxable income of the wife in respect of the assessment;
·    The winding up of a variety of entities and the vesting of trusts for which purpose, tax returns be completed and information be provided to accountants whose expenses be paid from the drawdown.

The jurisdictional basis to make orders

Both parties sought orders. The wife’s orders relating to the sale of the home after its repairs along with the liquidation orders was said to rely upon s 114 of the Act as an asset preservation order.
The relevant parts of s 114 of the Act provide:
(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
…
(e) an injunction in relation to the property of a party to the marriage; or
(f) an injunction relating to the use or occupancy of the matrimonial home.
…
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
There can be little doubt that those provisions are sufficiently wide to enable the Court to make orders for the repair of the property and indeed, its sale along with the liquidation of the entities. It is also wide enough to cover the situation here where one of the orders sought by the husband (if that is what he intended) is that the wife remain living in the home. To the extent that there is any question about the power, s 34 could also be used. (see Deputy Commissioner of Taxation & Kliman & Kliman [2002] FamCA 629).

The sale of the home and its repair

The wife by her amended application filed 5 December 2014 sought that the parties authorise the sale of the home in Suburb S but that it not be put on the market until after the necessary works were completed. In her application in respect of those works, the wife sought an order that the parties appoint a project manager to supervise. The works were to be determined by the agent on the basis that they were deemed necessary for the sale.
The husband sought an order that a sworn valuer be appointed (who was to be paid from the drawdown) and that:
the preparation for sale……..be commenced immediately.
However, the husband sought that he “co-ordinate” the required necessary works.
There is no dispute therefore that the house needs repairs and then to be sold. I turn attention to the real dispute which is about who is to be the project manager.
The wife’s position was that her preference was for the husband to return to the house to supervise (but not do the work) because as the husband was unemployed, it would be cost-effective. Failing that, she saw the need for a project manager.
The husband’s position about the repairs may be summarised as follows:
·    The cost of rental anticipated by the wife if she moved out of the home was not something the parties could afford for housing;
·    There was no need for the wife to move out and the house may take months to sell because “the market has softened”;
·    The house was renovated in 2008 and the repairs needed “are minor in nature” and would not be disruptive.
The dispute is therefore about the extent of the repairs. I cannot make any finding about that but I am conscious that the husband has not lived in the house for 3 years. It is hard to envisage the absence of hot water in a kitchen as “minor” or a possum infestation as not a problem requiring moving out.
The husband did not say that he would return to Melbourne. He did not give enough details to enable me to make findings about his current personal circumstances. Thus, concluding that he would not return to Melbourne and having no evidence how he would “co-ordinate” these “minor” repairs, I consider the wife better placed to undertake the task. If the husband is right about the extent of the repairs, the agent would no doubt quickly say so and the marketing of the sale of the house could commence quickly and in earnest.
The absence of trust between the parties is palpable. The husband complained bitterly in his affidavit that delays to trial were being caused. My impression as earlier indicated is that a small number of things need to be done and then the matter can be finalised. Having said that however, there are problems with the parties’ documented positions which need rectification.
I have already referred to the wife’s application that the parties authorise the marketing of the house for sale. The orders were proposed on the basis of co-operation. In submissions, counsel for the wife said that his client wanted authority as a trustee for sale to sell on behalf of both husband and wife. The wife’s evidence was that the home is an asset of one of the trusts of which she is the sole appointor and guardian. The wife is the registered proprietor but in her capacity as trustee not for the parties but for a trust.
Normally, one would expect the person responsible for the sale to be the registered proprietor. Whilst I have some concern about the husband’s position and whether he will co-operate, excluding the husband was not an order sought in the wife’s application. I consider it inappropriate to make a trustee for sale order absent the husband addressing the issue. One of the problems I foresee is that disagreement will arise about a number of matters in relation not only to the sale but also the appointment of the agent. I therefore propose to give the parties leave to bring an urgent application before the Court if there is any dispute about the appointment of the agent, the project manager (who will not be the husband), the terms of the marketing and sale and reserve price. The wife sought that the process of the agent and the price be determined on an agreed basis and in default of agreement, by the Real Estate Institute. In my view, leaving aside the delegation of the Court’s power which I am uncomfortable about, the husband has indicated disdain for the wife and her solicitors, there is no trust between anyone and there is extant, a very litigious environment (at least 12 court events). In my view, the only way to cover all of those matters is for the parties to indicate in writing to each other (and not the Court) within 14 days their respective positions and failing agreement on any issue, either party can make an application for specific determination. Unreasonableness by either party runs the risk of costs orders.

The substantive final orders positions

The wife’s pleaded position seeking relief remains that set out in her application filed 22 April 2013. In respect of property matters, she did not plead precisely what she was seeking. In his response filed 29 April 2013, the husband sought relief in the same way. Whilst the parties may have some idea of what each is seeking, the Court does not. There can no longer be a justification for that because just what assets remain should be clear. Clarifying the respective positions also sets the parameters for their dispute.
In his response, the husband sought an order that he pay maintenance to the wife “as determined by assessment of the Child Support Agency”. The Agency does not assess maintenance. The wife has before the Court applications for both spousal maintenance and departure from the assessment of child support. The husband needs to decide how he is going to respond to those matters on a final basis.

The liquidations of entities

The wife sought orders for the winding up of a variety of entities which form part of the Owen Tilley Group. She sought that B Accountants be appointed. In detail, the wife set out the process including the cost. The wife claimed to have made the proposal but the husband had not responded.
In his response, the husband sought that a “completely independent” forensic accounting “team” be appointed to value all of the entities. I am unsure what that would do.
The position became clear when paragraph 32 of the husband’s affidavit was read. He said:
The inability to reach a property settlement is also costing money that I cannot afford with the ongoing costs of the entities that are dormant and awaiting liquidation.
He began to say what they were but left the matter incomplete.
The wife’s evidence was that the retention of these entities was pointless too. In the circumstances, the disposal of those will crystallise the parties’ financial position.
The issue is who should do the professional work. By inference, the husband maintained that the wife’s nominee was not independent. His complaints can be summarised as follows:
·    The accountant had said the husband had failed to declare distributions when he maintained that he had;
·    The accountant had allocated a large debt to the husband after separation and without his knowledge;
·    The accountants lodged his tax return without his knowledge;
·    The accountants allocated funds in the superannuation fund that he did not agree with;
·    An allocation was made in the wife’s trust without his knowledge; and
·    He intended to report the accountant to the appropriate professional body.
I did not have the opportunity to have the wife respond to those allegations but at face value, they are not insurmountable problems nor do they indicate an absence of independence. Dealing with them sequentially, the first dot point is a matter that can be easily clarified in the evidence. If a misunderstanding has occurred, the position is one of human frailty. The second dot point is a book keeping entry as is the fourth and fifth. All of those can be rectified by book entries. I do not find nor could I on the untested evidence, that there was some malicious, improper or grossly negligent conduct on the part of the accountant. The husband did not suggest an alternative. The third and sixth dot points are personal to the husband and have little relevance here if the issue is around the winding up of entities. The husband will have every opportunity through discovery to be informed of what the final financial statements show and there seems little dispute that the entities should be disposed of.
The wife filed an affidavit by the accountant. He has the requisite qualifications. He knows the entities and has given advice in respect of them. The accountant was aware of the complaints of the husband and said he had been in touch with another accountant who purported to act for the husband. No mention was made of this new accountant nor was any evidence called by the husband about that.
The work of the appointed accountants will be subjected to scrutiny. The wife said that she had no problem about E Accountants being a single expert so there is no reason why the husband could not use them to scrutinise the work of the other accountants. I see no reason on the evidence to doubt B Accountants’ independence even if they do not currently enjoy a good relationship with the husband.
The firm named by the wife can undertake the task. If the husband is not able to or refuses to co-operate, the liberty to apply clause can be used to seek orders under s 106A of the Act.

The litigation funding or part property division issue

I have already set out what the wife sought and in some proposed orders, she pleaded in the alternative. Some things were disputed by the husband and others not. For example, the husband complained about the wife’s proposed move and seemed to link it to a new relationship but on the other hand, he proposed that when the house was sold, she have reasonable money to relocate.
The wife’s affidavit set out that she has insufficient money to adequately live and she cannot participate in this litigation without the assistance of lawyers. She therefore seeks either a litigation funding order or a partial property settlement.
The husband’s proposed orders were that he be at liberty to use the drawdown for credit card and tax debts. He also wanted the fund used for the payment of his proposed valuation and for the home repairs. I am unsure whether he was conceding there was jurisdiction and power to make the orders but I propose to consider whether and if so, on what terms, any order should be made. I take into account that each of the parties seems to be coming from a different perspective in relation to the use to which the money is to be put.
Notwithstanding the absence of the husband, I consider that his application seems to be of a litigation funding nature save for the claim for $180,000 to which I shall refer later. In his proposed orders, the husband sought that various payments be made out of a designated Westpac Bank account. That seems to be the drawdown facility. Hence, I understand that even though the husband may not have agreed to the payments sought by the wife, he was not disputing what their source would have been. The payments he otherwise wanted made were:
·    The forensic accounting work;
·    The valuation work;
·    The house repair work;
·    The wife be entitled to reasonable rent, bond and relocation money when leaving the home;
·    The accounting, bookkeeping, administration and liquidation expenses of F Pty Ltd and D Pty Ltd; and
·    The company credit card and tax be paid.
Those “debts” need to be considered individually.
The husband wanted the liquidation to proceed as well as the repair to the house albeit in both cases, differently to the wife but the source of the payment was still to be the drawdown facility. The valuation work to which he referred was, in my view, unnecessary. The wife’s moving expenses must be seen as an acknowledgment by the husband that the wife needs capital to re-establish herself with the children. That adds to the strength of the wife’s argument about the release of funds for her living expenses. Both of the two companies mentioned by the husband are on the list to be liquidated so any expenses associated with getting accounting work up to date would have to be paid and again, the only available source of funds seems to be the drawdown facility. There is therefore little dispute about what needed to be done and the source of payment.
That left the last dot point in relation to the credit card and the tax. There was no evidence about these two matters but as each seems to be company related, no doubt they will be dealt with in the liquidation process. It may be that if the parties have significant company or trust loans to the entities to be liquidated, there will be claims against them personally but there was no indication in the evidence that I could conclude there will be a significant problem.
The husband’s evidence was that the “net asset position” is “potentially in the negative due to the tax debts” but that evidence is inconsistent with that of the accountant. I prefer the accountant’s precise understanding and knowledge to the husband’s opinion about a potential debt.
The husband said the parties had no savings; that was common ground between them. They have been living off a line of credit. I accept that the wife’s position as set out in her affidavit is probably right which is that the only real source of property lies in the former home against which there is a limited encumbrance. I note again that it is owned by a company as trustee for a trust. The wife does not seem to argue that this is notionally the property of the parties.
The husband said that if the wife was successful in “getting the amount of funds she is seeking” from the redraw facility:
It could be potentially devastating to us both financially if there is not enough money left after property settlement to pay our large debts.
I have no understanding of what that means. How it would be potentially devastating remained unclear when it is the only equity the parties have and the tax debts seemed assessable. If the parties have no money after property settlement, it will be because they have spent it on living expenses. I see no reason why the wife should not have the opportunity to spend what she wishes and how she wishes so long as it does not infringe on the entitlement of the husband. That becomes part of the justice and equity question as to whether or not an order should be made. I turn then to the issue of jurisdiction and the power of the Court to make the orders sought.
In Paris King Investments Pty Ltd v Rayhill[2006] NSWSC 578 at [29], Brereton J observed “the juridical bases for an order for preliminary provision for litigation costs in matrimonial proceedings are diverse”. This was the point picked up by the Full Court in Strahan & Strahan (Interim property orders) [2009] FamCAFC 166.
The power to make the order sought is contained in ss 79 and 80(1)(h) of the Act. As was said in Zschokke& Zschokke [1996] FamCA 79; (1996) FLC 92-693 the Court may use the power to “require the party who controls most of the assets of the parties to provide the other party with funds to conduct his or her case, with the provision of such funds then being a matter to be taken into account in the final settlement of property between the parties” [83,215]. An applicant needs to point to the particular power to enable the Court to ascertain what needs to be proved. There is no dispute here about the Court’s power but rather whether it should be exercised.
Rather than being a power imbalance here, I have a standoff in which both parties see not only what there is, differently, but what to do with it. I am satisfied on the evidence of both that this case needs a resolution and as I have already found, the crystallising of assets and even the use of the drawdown will assist that. Both parties agree that the way in which each has tied up the assets means that they cannot access funds that could be used for the purpose. The issue for the Court is whether that fund is available as property and whether it is just and equitable to make an order bearing in mind that the use of credit funds now may not necessarily lead to more assets for division later. Once the money is spent, it cannot any longer be divided.
I have the benefit of the detail that the wife says needs attention. I have the evidence of the husband as to what he wants completed. I have the evidence of the wife’s lawyer as to the costs necessary for trial. Not much of that is controversial.
I have earlier indicated the absence of parameters of the applications and the husband has a belief that there are not sufficient funds. I turn to that issue.
On the wife’s evidence, there is about $2 million in equity in the form of the drawdown. Against that, she sees expenditure in the repairs, the accounting work and tax. The accountant has estimated taxes and the professional costs and those would seem to all total somewhere around $250,000. There is currently over $70,000 owing to the Westpac Flexi Loan. There is a dispute about a family maintenance trust and whether money has to be paid to that in the vicinity of $100,000.
The wife was working on an assumption that the house was to sell for something around $2.5 million. The husband who responded to her affidavit did not mention that figure. The husband’s financial statement did not assist me because it only referred to assets that he considered he owned.
The first step is to decide whether it is just and equitable to make an order at all. Although the husband’s evidence was vague about what is owned, much of what he seemed to be talking about came from negotiations which I have ignored. I am satisfied there is an equity in the home which, after consideration of the known liabilities, leaves something in excess of $1 million to divide. Having regard to the current impasse and the need for the wife to live in accommodation which I accept must be better than the home and the fact that to realistically sell that, repairs need to be done which neither party can pay for, it is just and equitable to make an order altering the present title positions.
Having made that determination, the Court is obliged to consider the matters set out in s 79 of the Act. The considerations relevant to the exercise of the wide discretion conferred by s 79 are those set out in s 79(4). This subsection identifies a range of matters the Court must take into account in deciding “what order (if any) should be made”. S 79(4)(e) includes those matters in s 75(2) as may be relevant. The wife’s evidence sets out a prima facie case that she has made significant contributions that satisfy s 79(4). In respect of s 75(2), the wife also pointed to her limited income, responsibilities for children, lack of support from the husband and her inability to support herself adequately. I am satisfied on an interim basis that there is sufficient evidence to find that at trial, the wife would receive a significant settlement and there is no reason why current equity should not assist her in respect of what is legitimately her present entitlement.
Any orders now should, as part of the just and equitable consideration, be capable of adjustment in the final orders such as to satisfy part of the other party’s entitlement. That may be viewed as the clawing back concept. In my view, there is sufficient evidence here to indicate that there will be money available for such an adjustment.
As Thackray J said in Strahan (supra), there is still a strong basis upon which the Court should maintain its traditional stance that there should ordinarily be only one hearing of disputes concerning alteration of property issues but, here, there is sufficient property even if it is tied up in a house that must be sold. The wife’s evidence justifies a conclusion that it is just and equitable to make an order for the reasons earlier mentioned.
I am also satisfied on the evidence of Ms Kayler-Thompson that the wife is currently unable to fund her legal fees with a significant amount of legal work still to be undertaken. The justice of the case requires that the wife have access to funding to ensure she can achieve her entitlement. The husband has not sought a similar order. He did seek a payment from the same source of $180,000 representing what he said was money distributed to him notionally and referred to in some tax return. I do not see how I can make that order simply on the basis that the husband says a decision was made by a trustee. I do not know whether the trust has sufficient funds. It may be that it is represented in a loan account reduction. Those are matters that can be left to trial.

Spousal maintenance

The wife sought an order that arrears which she quantified at $114,000 be paid from the drawdown facility on the basis that any adjustment could be later made against the husband’s entitlements.
In her affidavit, the wife said that the last payment made was in October 2013. She referred to a hearing before Judge O’Sullivan in March 2014 in which each party received $50,000 to be drawn from the drawdown. She said that the periodic maintenance orders were not discharged. The husband seemed to disagree. He said:
(the wife’s) application for prepayment of legal fees, capitalization of urgent spousal maintenance and lump sum living cost payment was accompanied by a request to Judge O’Sullivan’s associate requesting the hearing date of the last working day before Christmas or the first working day after the Christmas break.
The application was heard on 13 February 2014 and 28 March 2014 in the Federal Circuit Court and the orders referred to above made.
The urgent spousal maintenance payments ordered on 24 May 2014 (sic) were discharged from the date of the last payment and a lump sum funds from debt (sic) made available to each party.
This controversy required an examination of the orders of Judge O’Sullivan. The Court transferred the proceedings to this Court on 28 March 2013. I have looked at all of the orders prior to that date. Nothing in the orders suggests the spousal maintenance orders were discharged. Indeed, the orders of 28 March make no reference to maintenance.
In his reasons for judgment, Judge O’Sullivan made reference to the earlier orders so there can be no doubt that there was an extant spousal maintenance order when the parties’ case was heard and transferred. His Honour then said that [at14]:
The interim order of 24 May 2013, further enforcement of which had been stayed by order made on 13 February 2014 was discharged from the date of the wife’s application in a case was filed in December 2012.
The court record shows that on 13 February 2014, his Honour stayed the enforcement of the May 2013 order until the adjourned date. His Honour’s reference to discharge is perplexing. No such order was made. To the extent that the orders of 24 May 2013 are prefaced by the words “until further order”, I do not accept that making a lump sum order made on 28 March 2014 had the effect of discharging the 2013 orders.
Section 83 of the Act empowers the Court to discharge an order including retrospectively. Nothing in the reasons of Judge O’Sullivan indicates that is what the Court was doing. Whether the language was infelicitous or not, I do not think it is proper for me to go behind the orders. Those orders made in 2013 and 2014 were all by the Court and not by consent. Neither party appealed against them. Accordingly, the basis of the wife’s position before me is sound.
I find the wife is owed the money and her application is an enforcement of her entitlement. I do not have sufficient evidence to show that other than the drawdown facility which obviously contains some entitlement of the husband, there is any source from which payment can be made. Again, any payment now can be adjusted later if necessary.
The maintenance should therefore be paid including, once the house sells, the further outstanding spousal maintenance if there is not otherwise a discharge or suspension of the Court’s spousal maintenance order. In the same way, the wife sought that her anticipated legal fees be paid out of the proceeds of sale and having regard to the equity I am satisfied exists, the payments should be made to be treated as partial property settlement so that the wife can spend her money on her lawyers to trial if she so chooses.

Tax returns, refunds and obligations to pay

The wife sought specific orders that once the capital gains tax liability for an investment property was assessed, it should be paid from the drawdown. She sought that if the liquidations resulted in cash entitlements, those should be invested until completion of the matter and likewise, if a tax liability arose other than from exertion, it should be paid.

The dispute about this is part of the whole liquidation and indebtedness dispute. For asset protection purposes, I think money received should be banked in trust and debts known at the time of the settlement of the sale of the home should be paid from the proceeds. Other matters beyond that will have to be litigated at another time.

Child support

The child support issue concerned the existing assessment. There is evidence of the assessment in place and the relevant dates are shown in the annexures to the wife’s affidavit. The Registrar in Child Support had been served with the documents and did not appear to dispute the matter.
Section 116 of the Child Support (Assessment) Act 1989 (Cth) provides that normally, a parent has to undertake an administrative pathway before being eligible to come to the Court however where there are current financial proceedings pending as here, the powers of the Court are enlivened. This was a discrete issue about the nominated taxable income for the purposes of the formula. Simple though that may be, the legislative pathway is still complicated.
Section 117 provides that to depart from an assessment, there must be special circumstances and then, the Court must be satisfied there is a ground for departure as set out in the Act. Even at that point, if a ground is established, the Court must be satisfied that it is just and equitable as regards the child, the payer and the payee and otherwise proper, to make the order.
The wife’s ground for departure is that in the special circumstances of this case, the administrative assessment results in an unjust and inequitable determination of the level of financial support to be provided by the husband because of the income, property and financial resources of both of them. In that respect, I turn below to her evidence to see whether there is such an argument.
The legislation also provides that the person who provides ongoing daily care for the children should be able to have their financial support determined without the need to resort to court. Unfortunately, the litigation between the parties in this Court seems to be hampering all of that being sorted out. It is difficult to know what the true position is on the untested evidence because the husband operates (as does the wife) through corporate structures. Albeit unemployed, he was recently in Singapore as he said, presumably pursuing the possibility of a position. None of that has been adequately explained because of, the husband claimed, the wife’s “adversarial attack” on his business in 2014 which resulted in the loss of clients. No explanation was given beyond that so I propose to ignore the statement as being without evidentiary foundation.
In respect of how to determine this discrete matter, the Court must take into account and have regard to the matters set out in s 117. Those matters require the Court to have regard to the nature of the duty of the parent to maintain the child, the proper needs of the child, any hardship that would be caused and again, the full financial position of the parties not only in terms of income, earning capacity and commitments but also property and financial resources. The Court must take into account whether it is proper to make the order. Another consideration concerns the proper needs of the child and that includes the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained.
On any view of the evidence to which I shall now refer, these children are not enjoying the shared fruits of their parents’ financial activities. The current assessment means that notwithstanding what the husband said he was paying, he is now not assessed to pay anything. Of course, the formula can only be operative from an income basis whereas the obligation of parents under the Act relates to property and other resources as well. Not only is the wife not receiving child support or more particularly, the children are not, there is now a possibility of the Agency pursuing her for an overpayment. All of that occurs because the formula does not reflect the reality. The problem arose as I shall now endeavour to set out.
During 2014, the child support assessment was varied 3 times because the Agency was given information by the parties or through their taxation returns. The first assessment used the husband’s estimate of his income but also the time spent by the wife with the children. Shortly thereafter, the Agency accepted the husband’s self-assessment that his income was less than $17,256. Then, the wife filed her tax return in which a significant franked distribution had been shown from one of the trusts. As the wife observed, she did not receive that income because it was used to repay another company loan. The Agency then re-assessed her entitlement culminating in a statement that she had been overpaid. No doubt this arose because of the corporate and tax structures that the parties had used and had the benefit of during their time together. As I have also observed in these reasons, the husband has expressed unhappiness about the way distributions over which he had control were allocated but that unfortunately is a symptom of the way the parties conducted their financial lives. The overpayment then caused the Agency to indicate that they were going to recover the sum.
The husband’s response to all of this was that he had paid child support and then found that he was in credit. He noted as an aside that he had an “impeccable” record of paying child support for his son from another relationship but I also note that he had the benefit of a child maintenance trust which most Australian employee taxpayers would not have. Again, these issues are all indicative of the nature of the structure and benefits that the parties had.
I find because of the matters just set out, there is an unreality about the notional financial position of both parties and that is a special circumstance warranting departure from the administrative assessment. I accept the wife’s ground lies in s 117(2)(c)(ia) in that the assessments to which she refers result in an unjust and inequitable determination of the level of child support to be paid because of the income, property and financial resources of both parties. I find it is just and equitable as regards the children and the wife to depart from the assessment having regard to the matters in s 117(4)(a),(b),(d) and (g).
The wife only seeks an order under s 118(1)(g). Her evidence which I accept is that her current income is an estimate of $350 per week or $18,200 per year. However, I accept that has been after October 2013. The assessments sought to be departed from relate to the period from July 2013 to June 2014. The wife’s adjusted taxable income was shown as $140,384 because of the various corporate and trust distributions. It would not be safe to rely upon her estimate of $18,200 for one thing but the other is the complicated structures and property issues means that using either the assessed figure or the estimated figure does not give a true picture. The wife’s estimate is just that and accordingly, I consider this is a matter that would be better dealt with at trial. In the meantime however, I consider it fairer that the adjusted figure be fixed at “nil” until a comprehensive consideration can be undertaken. There would appear to be no prejudice to the husband in respect of that because he is already similarly assessed.
The wife also sought that until 30 June 2015, distributions not be taken into account. She did seek to have the formula apply otherwise to income from exertion. I consider that a sensible approach because it reflects what the legislation intended namely that assessments should be by formula. Accordingly, I will order that the Agency only use the income from exertion of the wife for that period. She also sought a similar order in respect of the husband but I am not prepared to guess at what might be the case with the husband’s position on untested evidence. That issue can remain one for trial.

Discovery and “other orders” sought by the husband

The husband sought a raft of orders relating to disclosure. It is noted that he sought “a list” of entities, details, names and information rather than documents. Counsel for the wife said that his client was prepared to give the husband whatever was required if it had not already been provided or was not within her control. It is difficult for me to assess exactly what concerned the husband. In his affidavit, he said that the wife had not given him access to required information. He pointed to an order of Judge O’Sullivan. Paragraph 20 of his Honour’s orders relates to documents as distinct from information, names, details etc. The orders have attached to them a schedule which also refers to documents. The order was however prefaced with the proviso that it did not apply to documents already provided. Thus, the husband’s statement did not assist. He also complained that the accountants had not provided him with information but it is not their responsibility to do so particularly as I read the accountant’s affidavit, that money is owed them by the husband.
Each party is reminded that rule 13.01 of the rules provides that each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.
Rule 13.04 provides that each party must make full and frank disclosure of the party's financial circumstances and having regard to the earlier requirement about information, it is not just the documents that need to be provided.
The husband needs to particularise not just what he wants but also its relevance to the proceedings. The wife has an ongoing obligation (as does the husband) to provide information as well as documents that is relevant to the outcome of the proceedings.
I propose to make an order that each party have 21 days to set out a list of what documents they want to inspect. If any document is not protected by privilege and is relevant to the proceedings, it should be made available for inspection. To the extent that the husband does not wish to come down from Queensland to inspect personally, he will have to pay the relevant photocopying costs of the wife in advance of any documents being sent. To the extent that he wishes information to be provided of the nature set out in his proposed orders, he can seek a response by letter and if not satisfied, he can either seek to use the rules in relation to questions or alternatively, pursue the information through the subpoena process. He will need to be conscious of the fact that he will have to establish relevance. The wife will need to be conscious that she has an obligation to be frank. Both parties will need to be conscious of the fact that the longer interlocutory disputes like this continue, the further away the final hearing is because it is hard for the Court to assess the readiness of the case. As I have already said, my assessment is that this case is simple but the parties need to clarify the assets.

I certify that the preceding One Hundred and Twenty Seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 January 2015.

Associate:

Date: 20 January 2015

[2015] FamCA 11

20 January 2015

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Property Law

Legal Concepts

Appeal

Costs

Discovery

Jurisdiction

Procedural Fairness

Remedies