VAIL & VAIL

[2020] FamCA 737

FAMILY COURT OF AUSTRALIA

VAIL & VAIL [2020] FamCA 737

FAMILY LAW – INJUNCTIONS – Preservation of property – where the wife sought urgent interim injunctive relief as against the husband – where the parties have an extensive and complex share and company portfolio – where the husband has not had the opportunity to file material – where orders must balance competing positions until the matter can be more fully litigated – interim injunctive orders made by consent – interim injunctive orders made preserving the wife’s interest in a $200,000 asset –  orders made allowing husband to repay joint credit cards back to nil.

Strahan & Strahan (2011) FLC 93-466

APPLICANT: Ms Vail

RESPONDENT: Mr Vail

FILE NUMBER: SYC 5604 of 2020

DATE DELIVERED: 9 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 20 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Peter Campton SC of Counsel

SOLICITOR FOR THE APPLICANT: Finn Roache Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in person

Orders

1. The matter is adjourned to interim hearing on a date to be fixed after the 18 September 2020 in relation to any outstanding interim issues and following the husband filing his material.

2. The husband is to file and serve a response, financial statement and supporting affidavit by 18 September 2020.

It is ordered by consent and pending further order that

1. The husband pay the wife $10,000 per month by way of spousal maintenance.

2. The husband pay the school fees of X and Y (“the children”).

3. The husband pay the mortgages on the properties at:

   (a)       B Street C Town NSW;

   (b)       1 D Street City E NSW; and

   (c)       2 D Street City E NSW.

4. The parties will not further encumber or increase any indebtedness that the properties identified in Order 5 are subject to.

5. The husband be restrained by injunction from:

   (a)       Doing any act or thing that may cause the assets or income of

   (i)F Pty Ltd;

   (ii)G Pty Ltd;

   (iii)H Pty Ltd;

   (iv)J Pty Ltd;

   (v)K Pty Ltd;

   (vi)L Pty Ltd;

   (vii)Vail Superannuation;

   (viii)Vail Unit Trust;

   (ix)Shares in M Pty Ltd;

   (x)Shares in N Pty Ltd;

   (xi)Shares in O Pty Ltd; and

   (xii)Shares in P Pty Ltd.

   (Collectively known as the “Vail Group”).

   To be disbursed, sold, transferred, signed, encumbered, alienated or leased in any manner whatsoever, except in the ordinary course of business and as properly documented in the books, financial statements and accounts of the Vail Group.

   (b)Selling, obtaining a mortgage, assigning, alienating or further encumbering any of the Vail Properties or any other real property in which the parties hold an interest.

   (c)Taking any steps to remove the Applicant wife as a shareholder, employee or officer of any company or entity in the Vail Group.

   (d)Exercising his Power of Appointment to appoint a new Trustee and/or sell, transfer, assign, encumber or alienate the assets of any trust in which the parties have an interest as a beneficiary or in relation to which they were a beneficiary since the commencement of the marriage.

   Without first giving the Wife not less than 28 days’ notice in writing of the Husband’s intention to do so and/or details and documents relating to such proposed transactions, and that the Applicant wife provides her consent in writing.

6. The husband be restrained by injunction from:

   (a)Using any assets and/or loan facilities in the name of the wife, the Vail Group, the husband and/or in joint names to the entities G Pty Ltd or H Pty Ltd without the written consent of the wife.

7. That within 48 hours of the date of delivery of these orders and pending further order of the Court, the husband is to attend upon the relevant bank, or financial institution for the purposes of doing all things and signing all documents to authorise, facilitate and to provide online viewing access to the wife in respect to the following accounts:

   (a)…07, held in the name of Mr Vail, with the Commonwealth Bank of Australia (“CBA”);

   (b)…15 held in the name of F Pty Ltd or Mr Vail on behalf of F Pty Ltd with CBA;

   (c)…26 held in the name of J Pty Ltd or Mr Vail on behalf of J Pty Ltd with CBA;

   (d)…38 held in the name of K Pty Ltd or Mr Vail on behalf of K Pty Ltd with CBA;

   (e)…29 held in the name of L Pty Ltd or Mr Vail on behalf of L Pty Ltd with CBA;

   (f)…19 held in the name of Vail Unit Trust or Mr Vail on behalf of Vail Unit Trust with R Bank.

8. That within 14 days of the date of delivery of these orders the Husband is to provide the following documents by way of full and frank disclosure, to the Wife's solicitors:

   Respondent Husband

   (a)His personal tax returns for the year ended 30 June 2018, 30 June ended 2019 and 30 June ended 2020 and all notices of assessment for those years.

   (b)All bank statements representing all accounts, with all banks and financial institutions in his personal name, in U Company including any joint accounts with a third party from 1 January 2017 to date;

   (c)All bank statements evidencing the Husband’s share, foreign exchange, interest rate and any other trading with CommSec, Q Company, R Bank Ltd and any other from 30 December 2018 to date.

   F Pty Ltd

   (d)The financial statements and the tax returns for the years ended 30 June 2018, 20 June 2019 and 30 June 2020 including notices of assessments;

   (e)       The BAS statements for F Pty Ltd for the past three years;

   (f)All documents evidencing the income and monies which the Respondent husband receives from F Pty Ltd;

   (g)All documents evidencing all loans to F Pty Ltd from and on behalf of the Wife and Husband either jointly or individually;

   (h)       The shareholder agreement and company constitution;

   (i)All documents evidencing the removal of the Wife as Director of F Pty Ltd, including any document executed by her.

   J Pty Ltd

   (j)Financial statements for the year ended 30 June 2018, 30 June 2019, 30 June 2020;

   (k)Tax returns for the year ended 30 June 2018, 2019, 2020 including notices of assessment;

   (l)All bank accounts in the name of held on behalf of J Pty Ltd from 1 January 2019 to date;

   (m)All applications to a financial institution and/or the Australian Government for a loan to J Pty Ltd.

   K Pty Ltd

   (n)Financial statements for the year ended 30 June 2018, 30 June 2019, 30 June 2020;

   (o)Tax returns for the year ended 30 June 2018, 2019 , 2020 including notices of assessment;

   (p)All bank accounts in the name of held on behalf of K Pty Ltd from 1 January 2019 to date;

   (q)All applications to a financial institution and/or the Australian Government for a loan to K Pty Ltd.

   L Pty Ltd

   (a)Financial statements for the year ended 30 June 2018, 30 June 2019, 30 June 2020;

   (b)Tax return to the year ended 30 June 2018, 2019, 2020 including notices of assessment;

   (c)All bank accounts in the name of held on behalf of L Pty Ltd from 1 January 2019 to date;

   (d)All applications to a financial institution and/or the Australian Government for a loan to L Pty Ltd.

   Vail Unit Trust

   (e)Financial statements for the year ended 30 June 2018, 30 June 2019, 30 June 2020;

   (f)Tax return to the year ended 30 June 2018, 2019, 2020 including notices of assessment;

   (g)All bank accounts in the name of held on behalf of Vail Unit Trust from 1 January 2019 to date.

   Vail Superannuation

   (h)       All documents evidencing all assets owned by Vail Superannuation;

   (i)All documents evidencing the details as to how and why the self-managed super fund was deregistered;

   (j)All documents including all correspondence between Respondent husband and the ATO;

   (k)All Documents evidencing how the monies were applied and/or transferred including any other self-managed super fund or superannuation fund.

   N Pty Ltd

   (l)All documents relating to the sale of the W Business in 2019 including all documents evidencing any monies paid to Respondent husband personally/directly or any entity to which the Husband is a director/shareholder or of which he has an interest;

   (m)All bank statements held by and on behalf of N Pty Ltd for the past three years;

   (n)All correspondences and documents relating to the sale of the W2 Business including documents evidencing any funds received by F Pty Ltd and/or M Pty Ltd or the Respondent husband.

   M Pty Ltd

   (o)All documents relating to the sale of the W Business in 2019 including all documents evidencing any monies paid to F Pty Ltd;

   (p)       All bank statements held by and on behalf of M Pty Ltd for the past three years;

   (q)All correspondences and documents relating to the sale of the W2 Business including documents evidencing any funds paid to Husband personally/directly or to any entity to which he is a director, shareholder or of which he has an interest.

   G Pty Ltd

   (r)All financial statements for the period 30 June 2018, 30 June 2019, 30 June 2020;

   (s)All tax returns for the period 30 June 2019 and 30 June 2020, and the notices of assessment for the same period;

   (t)        The Respondent Husband's employment contract;

   (u)       All payslips and income for the Respondent Husband;

   (v)All documents evidencing all loans (including convertible debt, support for overdraft facilities and working capital monies) to G Pty Ltd from and on behalf of the Wife, Husband, F Pty Ltd or any company or entity belonging to the Vail Property Group including all monies which have been repaid, for the past five (5) years.

   Real Property

   (a)All documents evidencing the home loans, mortgages and liabilities in relation to:

   i)B Street C Town New South Wales (having Folio Identifier …);

   ii)1 D Street City E, New South Wales (having Folio Identifier …); and

   iii)2 D Street City E New South Wales (having Folio Identifier …).

It is further ordered pending further order that

1. The husband is not to provide more than $5,000 to G Pty Ltd or H Pty Ltd from money standing to the credit of any of the entities in the Vail Group without the written consent of the wife.

2. The husband is to notify the wife within 48 hours of any amount paid to G Pty Ltd or H Pty Ltd from the assets of the companies comprising the Vail Group.

3. The husband is restrained by injunction from withdrawing more than $25,000 per seven days from the J account without the written consent of the wife.

4. The husband is to notify the wife of any withdrawals or payments made from the J account within seven days of them being so paid or withdrawn.

5. Within seven days of the date of delivery of these Orders the husband is to set out with precision:

   (a)When he received the monies in the sum of approximately $900,000 paid to G Pty Ltd from the Australian government;

   (b)Into which account this money was paid, including the BSB and account number;

   (c)       All payments from that account; and

   (d)       The remaining balance of the account.

6. The husband is injuncted and restrained from using the remaining funds in the F Pty Ltd Commonwealth Bank account ending …15 other than to reduce the Westpac credit card and St George credit card balances to nil.

7. The husband is to comply with order 16 within 48 hours of these orders being issued, unless both parties agree in writing otherwise.

8. Upon the husband complying with order 16 herein the parties are injuncted and restrained from using the Westpac credit card and the St George credit card and for any existing direct debit payments after 26 September 2020 unless by  agreement in writing.

9. The husband is permitted to maintain the direct debits on the Westpac and St George credit cards up to 26 September 2020 only and thereafter they are to  be terminated, on the following basis:

   (a)He informs the wife of the direct debits, their nature, and to whom they are paid within that month; and

   (b)The husband is to repay any direct debit being debited to either credit card and bring the balance of the two credit cards back to nil by no later than 30 September 2020.

10. Leave is granted to each of the parties to approach my Associate in Chambers for an urgent listing should any issues arise in relation to compliance with these Orders.

It is noted that

1. The husband agrees to the injunction set out in Order 6(d) of the wife’s interim application filed 16 August 2020, save that he and the wife may need to sell or assign shares if the sale of G Pty Ltd proceeds, which he indicates is close to occurring.

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 Vail & Vail 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 SYDNEY

FILE NUMBER: SYC 5604 of 2020

Ms Vail

Applicant

And

Mr Vail

Respondent

REASONS FOR JUDGMENT

1. This is an urgent application filed the wife on 16 August 2020 seeking various injunctions and restraints on her former husband in relation him dealing with their various companies, known as the Vail Group, and bank accounts.

2. Mr Campton SC acted for the wife and the husband was self-represented.

3. The husband agreed with many of the orders and was open and transparent in relation to many issues. His demeanour was courteous and polite, and thus, much was able to be achieved by consent.  The husband has yet to file his material in reply and I have made orders for him to do so, together with orders for further discovery. A hearing date before a judge on the further interim issues will be allocated some time after the filing of his material which he will file by 18 September 2020.

4. The parties have been separated for three years and have engaged in a collaborative legal process in an endeavour to resolve their differences, however, they are yet to do so.

5. The material I read for the wife was her:

   a)Initiating application, affidavit and annexures filed 16 August 2020;

   b)Financial statement filed 16 August 2020;

   c)A letter from her solicitors dated 16 August 2020 in relation to the urgency of this matter; and

   d)A very helpful case outline prepared by Mr Campton of senior counsel and filed 19 August 2020. 

6. The matter was listed urgently as the wife asserted the husband was/would/had dissipated $1.4 million due to be paid to them in early August 2020.  Fortunately, that did not occur in terms of dissipation. From the oral evidence given by the husband, the amount received was $900,000 and $200,000 of that sum is remaining. The husband gave oral evidence of his use of the remaining monies however I do accept he has dispersed these monies without consulting the wife and that caused her concern. That concern was heightened when he removed her as a joint signatory from two accounts with the Commonwealth Bank and she was unable to access accounts she had previously accessed.

7. If the parties can regain trust in each other, there are good prospects of this matter resolving.

8. The short chronology is as follows:

   a)The parties commenced cohabitation in 1995 and were married in 1999;

   b)They purchased a property at Suburb S, in 2003;

   c)X was born in 2003;

   d)In February 2004, the wife developed a tumour in one of her ears causing significant hearing loss, and she is now profoundly deaf;

   e)In 2005, Y was born;

   f)The parties sold the Suburb S property in August 2008, netting some $4.7 million;

   g)On 14 May 2010, the wife received over $900,000 from T Company, being an insurance claim for her significant hearing loss;

   h)The parties purchased the property at B Street C Town on 10 June 2011;

   i)On 30 June 2012, the husband removed the wife as a director of one of their companies without her knowledge or consent, and the wife has only recently found this out;

   j)In February 2017, the parties separated;

   k)On 3 January 2019, the wife says in her Affidavit filed 16 August 2020 that she lent the via the parties’ company, F Pty Ltd, in which they are equal shareholders, $200,000 to be repaid to a company whose acronym is G Pty Ltd.  G Pty Ltd paid $274,000 to F Pty Ltd on 26 or 29 August 2019.  On 26 or 29  August 2019, the husband transferred $299,000 to his personal Commonwealth Bank of Australia (“CBA”) account;

   l)In April 2020, the husband said he would not contribute to paying further credit card debts.  He had paid these down previously and his assertion is the wife simply drew all the money out instantly;

   m)On 6 April 2020, the husband confirmed he would not continue to contribute to the wife and children’s joint expenses, but he has since resiled from that position;

   n)A concerning event occurs for the wife on 21 April 2020, when the husband removes her access to the F Pty Ltd Commonwealth Bank account ending 9515; and

   o)The wife asserts that between 28 April 2020 and 12 May 2020, the husband lost $91,500 in trading and the parties were due to receive an R&D cheque of about $1.4 million to be paid to G Pty Ltd in August 2020.

9. This is a long marriage – 22 years, two children, and from any perspective, these parties’ financial life has been successful and they may have had, pre-COVID, $16 million in assets. The current value of their assets, being businesses – a service business, retail business, shares and real estate, is yet to be ascertained.  It is clear these are hardworking, responsible and impressive individuals.

10. The wife has brought her proceedings, as she says, to preserve the parties’ property and the husband did act to exclude the wife from a number of bank accounts when he received the wife’s material. The husband said in his oral submissions at one point that he carried out certain conduct as a “retribution.” I do not think that will occur again given the consequences being the commencement of these proceedings.

11. The wife seeks interim periodic and spousal maintenance, exclusive occupation of the property at C Town, appointment of a single independent accountant, and injunctive orders in relation to companies associated with the Vail Group.

12. The parties have a very complicated and extensive company history and shareholding intermingling and the wife has done her best at exhibit RK-1 to prepare what she understands is the factual matrix of their company and shareholdings.  That is yet to be fully ascertained as the wife is not sure she has all the information she needs.

13. The wife asserted that the husband has dissipated or wasted money by unsuccessful share trading and the like.

14. The real estate the parties have, which is a property in C Town and two units in City E, are heavily mortgaged and the wife has asserted the husband leveraged those properties in order to continue share trading which she says has not been successful.

15. The wife asserts the husband has been piecemeal in disclosure.

16. The wife asserts that he:

    a)Used her $900,000 insurance payout, which she received on 14 May 2010 without her knowledge, however, that was some 10 years ago;

    b)Used the proceeds of their sale of the property in Suburb S in 2008 of $4.7 million without her knowledge. These events occurred in 2008 some 12 years ago; and

    c)Has used and applied the parties’ income from the Vail Group at his discretion with little consultation with her.

17. I note some of the issues of concern to the wife are historically remote from today’s date.

1. On or about 21 April 2020, the husband removed the wife’s access to the F account with the CBA, without consent, and restricted her use of the parties’ joint credit card and therefore, access to income and information regarding the Vail Group.

2. The wife asserts that the husband has left her in a difficult financial position.  That is a matter for a final hearing.  The husband says that this was retribution;  that he did these acts because the wife had drawn down to the maximum limit monies he has placed on the credit cards to reduce interest payable, and there was a sort of a tit for tat going on.

3. The wife makes much of the fact she lent, via the company F Pty Ltd, G Pty Ltd $200,000 in January 2019.  Whether this is a loan is a matter for a Court and there is no doubt that $200,000 will form part of the matrimonial assets and may not be characterised as a loan. That is a matter for a final hearing.  There are sufficient assets to cover that loan or however it is described by a Court in the future.

4. The parties have a complex and convoluted financial web supporting three businesses at least and providing significant income to the family over the years.

5. The Vail Group consists of 12 companies: 

   a)F Pty Ltd;

   b)G Pty Ltd;

   c)H Pty Ltd;

   d)J Pty Ltd;

   e)K Pty Ltd;

   f)L Pty Ltd;

   g)Vail Superannuation;

   h)Vail Unit Trust;

   i)M Pty Ltd;

   j)N Pty Ltd;

   k)O Group; and

   l)P Pty Ltd. 

   This information is at paragraph 7 of the wife’s affidavit filed 16 August 2020.

6. The wife asserts at paragraph 9 of her affidavit of 16 August 2020 that F Pty Ltd is the main family company and owns shares in the majority of the companies in the Vail Group.  The husband is the sole director of F Pty Ltd and she was a director until 16 January 2013. The wife asserts she did not consent to being removed as a director in 2013.

7. The parties are 50 per cent shareholders in F Pty Ltd. The husband has 50 per cent shareholding in ordinary shares and the wife in 50 per cent “K” class shares.  F Pty Ltd owns 100 per cent of J, 100 per cent of K and 25 per cent of Bio Processing Australia. F Pty Ltd is the trustee for the Vail Superannuation and Vail Unit Trust.  Each of the parties have an equal entitlement to the superannuation in those entities.

8. The Unit Trust is comprised of shares in the O Group, a 33.33 per cent share in M Pty Ltd and two apartments in City E, being 1 D Street, City E and 2 D Street, City E.  Those properties are collectively subject to a total debt of $1,531,852.90 and both parties have agreed they will not further encumber or increase that indebtedness.

9. M also owns 42.8 per cent shares in N and the husband also owns 25 per cent shares in P Pty Ltd and 51 per cent shares in Sydney Hotels & Attractions.

10. In relation to the concern the wife had of the monies which she asserted was $1.4 million to be received in August 2020, the husband said orally he received $900,000 and he has repaid, as the wife requested, some $366,000 owing to F Pty Ltd. 

11. The wife seeks that the remaining $200,000 in the F Pty Ltd account be preserved and that the husband not be able to deal with these monies. 

12. The husband told the Court other monies that he had paid out when he received the $900,000 being: paying down St George and Westpac credit cards in the amount of $30,000-$45,000 for each, various school fees and other expenses. I am told by him there is about $200,000 left in the F Pty Ltd account with the Commonwealth Bank.

13. The husband said he wanted to use the money that is left to pay down, again, two credit cards the wife has drawn out to the maximum; about $45,000 for the Westpac account and $30,000-$35,000 for the St George account, and have the remainder of the money as a buffer for him in running the parties’ various businesses. There is no doubt he runs those businesses.

14. The husband does not agree to rent out the property at C Town as the wife asked to do and asserts he uses this property when he travels to maintain, carry out, organise, and be involved in the parties’ businesses in that area.

15. The  husband agrees to the following injunctions and restraints set out in the wife’s application, and commencing in her interim application filed 16 August 2020 as follows:

    a)He will pay the wife $10,000 per month by way of maintenance;

    b)He will pay all the children’s school fees and the mortgages on all the properties;

    c)He agrees to the injunctions set out in order 6(a) which relates to “doing any act or thing that would cause the assets of the parties’ companies to be sold, transferred, assigned, encumbered”; 

    d)He agrees to the injunction in relation to 6(b), “selling or obtaining a mortgage…or further encumbering any of the Vail Properties or any other real property”;

    e)He agrees to the injunction at 6(c) to further remove the wife as a shareholder from any company;

    f)In relation to 6(d), he agrees to that injunction, save he asserts that he and the wife may need to sell or assign shares if the sale of G Pty Ltd proceeds.  He says this sale is still proceeding.  I will note that exception in the orders.  In any event, the order 6 injunction he has agreed to provides that he cannot do any of these things without first giving the wife not less than 28 days’ notice in writing; and

    g)He agrees to the injunction at order 6(e) that he will not appoint a new trustee.

16. In relation to the injunctions sought in order 7(a) of the wife’s application, he seeks to be able to provide up to $5000 to G Pty Ltd or H Pty Ltd from money standing to the credit of any of the entities in the Vail Group without the written consent of the wife, but agrees that if he is to provide more than $5000, he will need to obtain the wife’s consent.  He also agrees that he will notify the wife when he pays money to the G Pty Ltd or H Group from assets of companies comprising the Vail Group, in any event.

17. The husband also asserts that if he is not able to pay monies to these entities, this may impact negatively on the running of his businesses. I will make the exception to injunction 7(a) that the husband seeks as a compromise position at this early stage. The wife will know when he has paid up to $5000 to these companies as he will be required to provide notice within 48 hours if he wants to pay more. The wife must consent before that occurs. In any event, the parties can approach my Associate in chambers.

18. He agrees to the injunction in 7(b).

19. In relation to the injunction in 7(c), rather than being restricted to withdrawing no more than $5000 per day from J Pty Ltd, the husband seeks he be able to drawdown, without consent of the wife, $25,000 per week from J Pty Ltd. If he seeks to withdraw more than that, he is to obtain the wife’s consent.

20. As the husband said to me, “One day I may pay $7000.  One day I may have to pay out $3,000; one day it may be $10,000”, but he agrees to no more than $25,000 per week without the consent of the wife. I will order the husband to notify the wife of all drawdowns made from the J Pty Ltd account within seven days of them being so drawn down.

21. The husband’s position was a practical and one and allows him to run the business but provides the wife with the protection she sought. $5000 per day is $35,000 over 7 days and the husband has agreed to limit drawdowns to $25,000 per 7 days, a week.  The husband can draw that amount of money down over  seven days without her consent.

22. Furthermore, I will order the husband to within seven days set out precisely:

    (1)When he received the monies paid to G Pty Ltd from the Australian government, which he says occurred around 7-8 August 2020 in the sum of $900,000;

    (2)Secondly, into which account this money was paid, including the BSB and account number;

    (3)Thirdly, all payments from that account; and

    (4)Fourthly, the balance of the account which he said was about $200,000 as at the date of this hearing.

23. The husband agreed to order 11 and 12 of the wife’s interim application in relation to provision of documentation.

24. The wife seeks preservation of the $200,000 which appears to be remaining in the F Pty Ltd account and the husband seeks he use this to pay down credit cards and have the remainder available to him as a buffer. 

25. The husband paid off two credit cards in August and the wife immediately withdrew this money, totalling about $65,000 or thereabouts as set out in paragraph 77 of her affidavit filed 16 August 2020.  I note the wife asserts the husband drew down on these same credit cards about $91,500 in six weeks from 28 April 2020 to 12 May 2020. Further, the wife asserts that the remaining $200,000 is money due to her as a repayment of a loan she provided at the husband’s insistence to F Pty Ltd on 3 January 2019, as set out in paragraph 34 of her affidavit. The issue of the loan and repayment is a matter not agreed and is for determination at a later date. On any view of the parties’ assets, there will be sufficient funds to repay the wife this principal sum in the future should that be a decision of the Court.

26. I accept the husband’s position of his use of some of the $200,000 to pay down the St George credit card and Westpac credit card to nil and reduce interest payments. I accept that position is sensible and practicable and does not prejudice the wife as I will injunct and restrain the parties from using those credit cards when the balance is to nil, unless parties both agree in writing to do so, after late September 2020 to allow direct debits the husband has in place to continue and give him time to make alternate arrangements. I will injunct and restrain the husband from using the remaining of the funds in the F Pty Ltd account, once these credit cards are paid off.

27. In order to preserve what the wife says is an important asset for her, future direct debits will need to be changed to a new account which the husband can open up at any time. Any direct debit paid up to late September from these credit cards will be re-paid by the husband to ensure the balance of the credit cards is nil thus preserving the wife’s interest in the remaining $200,000.

28. In relation to  the current direct debits on the credit cards the husband is to inform the wife of:

    (1)The direct debits, their nature, and to whom they are paid;

    (2)The amounts paid in the month of September; and

    (3)Confirmation of repayment to the credit cards of any direct debits in the month of September.

29. In six or so weeks from today when the matter is back before the Court and the husband has filed his material, the wife will have a better understanding of the totality of their financial position and the husband’s running of their various businesses.

30. I have only read one parties’ evidence. I have endeavoured to act cautiously as the law says I must having regard to the matter of Strahan & Strahan (2011) FLC 93-466. As per Strahan[1] at [132] and in relation to interim property orders, ‘all that is required is that in the circumstances it is appropriate to exercise the power.’

    [1]Strahan & Strahan (2011) FLC 93-466.

31. I find it is appropriate that I exercise power and in so doing have endeavoured to ensure that the wife’s interests are protected and that the husband can continue to run the parties’ hereto successful businesses.

32. Weighing up all these matters and acting as best I can on one parties’ evidence and to reach a just and equitable decision, I find the orders I propose to make are a balance of the parties’ competing positions until the matter can be more fully litigated.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 9 September 2020

Associate: 

Date: 9 September 2020