[2010] FamCA 1162

FAMILY LAW - PROCEDURAL - whether the wife's application for urgent spouse maintenance should be adjourned - where the wife's application is closely connected to her application for partial property settlement - matter adjourned

FAMILY LAW - PROPERTY - INTERIM PROPERTY SETTLEMENT - where the wife seeks that $250,000 from the sale of the former matrimonial home be distributed to her - where the husband seeks that a similar sum be awarded to him - where the husband concedes that the sum of $250,000 is substantially less than the amount proposed to be awarded to the wife by way of final property settlement - where the husband has sole benefit of the income derived from his business - just and equitable - orders that the wife be awarded the sum of $250,000

Family Law Act 1975 (Cth) s 79

Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166

(1) The time is extended to the wife for filing of the Initiating Application to 8 December 2010 (date of filing).

(2) The Court grants the wife the adjournment of the interim orders sought in relation to urgent spouse maintenance on the basis that the wife provide the husband's solicitors fourteen [14] days notice of any intention to request a further listing of that application.

(3) Upon settlement on the sale of the former matrimonial home situated at M in the State of South Australia, the proceeds of sale be applied as follows:

3.1 in payment of the costs of sale including agent's commission and advertising;

3.2 to payout any mortgage secured over the said premises;

3.3 by way of interim property settlement as to the sum of TWO HUNDRED AND FIFTY THOUSAND DOLLARS [$250,000.00] to the Trust Account of Norman Waterhouse on the wife's behalf;

3.4 the balance then remaining to be placed in an interest bearing account in the joint names of Norman Waterhouse and Cleland's Lawyers to be held on behalf of the parties pending further order of this Court or agreement by the parties as to how those funds should be dispersed.

(4) The final orders application is referred to the Docket Registrar for directions at a date to be advised to the solicitors for the parties.

(5) The question of costs of the interim applications is reserved generally.

IT IS NOTED that publication of this judgment under the pseudonym Gordons & Hasse is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1. Firstly, I will deal with the issue of whether the wife's application for urgent spouse maintenance should be postponed. The submissions on behalf of the husband are correct in that the application for urgent spouse maintenance commenced by the wife in September of this year and has been previously adjourned. The application for urgent spouse maintenance would appear to be not as urgent as some definition of urgent spouse maintenance might require, if it is to be adjourned again.
2. However, the question of urgent and/or interim spouse maintenance is a matter which need not necessarily be determined on the material now before the Court and before both parties have had an opportunity to carry out full inquiries including disclosure and inspection.
3. In the particular circumstances of this matter, the urgent spouse maintenance appears to be closely connected to the application for partial property settlement made by the wife. If she were to receive a significant sum from the distribution of the proceeds of sale of the former matrimonial home then there would be a considerable change to her financial circumstances which might bring about the discharge of any need for an urgent or interim spouse maintenance order.
4. There would appear to be a direct connection, in a financial sense, with those two matters. Taking into account the nature of this matter and the complexity of it, I propose to grant the wife the adjournment of the interim orders sought in relation to urgent spouse maintenance on the basis that the wife provide the husband's solicitors with 14 days notice of any intention to request a further listing of that application.
5. In relation to the question of part property or interim property settlement, the wife applies for interim orders that part of the proceeds of the former matrimonial home be distributed to her. The application asks that the payment of the costs included the agent's commission and advertising costs be paid and the mortgage secured over their home be paid. She seeks a sum of $250,000 to be paid to the trust account of her lawyers on her behalf with the balance to be placed in an interest bearing account in the joint names of the party's solicitors, pending the determination of the proceedings or agreement by the parties as to how those funds should be disbursed.
6. The wife was also seeking an order in paragraph 2.5 that pending receipt of the proceeds from the sale, the husband make a payment of urgent spouse maintenance in the sum of $1000 per week. From the submissions I have heard that is not now proceeded with today.
7. The husband filed documents in response to the wife's application. In the response to the interim orders he seeks the dismissal of the spouse maintenance application and that upon the sale of the matrimonial home, all rates, costs and commission and the mortgage be paid from the proceeds and all of the balance to be paid into an interest bearing account in the joint names of the parties pending order of the Court or both parties signing for the release of the funds.
8. The affidavit of the wife and financial statement filed by the wife in support of her application claims a need for access to funds. The affidavit of the husband calls into question the claims of the wife, both as to her capacity to earn a higher income and the veracity of some of the significant amounts claimed as her expenditure items.
9. Some items would not necessarily be deemed to be reasonable expenditure but the decision of the Full Court in a matter of Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 emphasises that the cost of living and standard of living enjoyed by the parties prior to separation is a factor to be taken into account in assessing the reasonableness of the ongoing lifestyle. Those factors are difficult to ascertain when there is the conflicting material filed by each of the parties. These matters will have to be determined when the evidence of each of the parties is tested at the final hearing process.
10. One significant factor in the husband's responding documents is that in his response to the final orders, he seeks a settlement on the basis that he retains his business and that each party retain 50 per cent of the net proceeds of sale of the former matrimonial home, the motor vehicle currently in their own name or possession, and their own superannuation and other assets in their own name or possession.
11. Therefore the husband should concede that payment of the sum of $250,000 to the wife from the proceeds of sale will not, in any way, exceed the amount which he is proposing be paid to her by way of final settlement as the parties seem to indicate in their documents, that the net proceeds of sale of the former matrimonial home will be in excess of one million dollars. Therefore the sum of $250,000 is substantially less than the amount the husband is proposing that the wife receive by way of final property settlement.
12. At the hearing I inquired of the counsel whether there had been any proposal to resolve this issue on the basis that each party receive a significant sum. I was told that that had not been agreed. Counsel for the husband maintained the husband's opposition to the wife receiving any payment but indicated that if the Court was proposing to make such an order, he made an oral application for the payment of a similar sum to the husband.
13. The Full Court decision of Strahan (Supra) in relation to interim payments indicates there is no need to establish a compelling basis upon which an interim order should be made. I take into account the factors referred to in the decision of Strahan. The significant difference between this matter and the matter of Strahan is that the husband in Strahan was being ordered to find the amount to pay to the wife from the assets under his control. In this matter the former matrimonial home has been sold with settlement due to take place in February 2011 and the former matrimonial home was an asset in the joint names of the parties.
14. The factor most relevant in section 79 of the Family Law Act 1975 (Cth) is the financial circumstances of the parties.
15. Whilst I accept that there are queries concerning the wife's capacity to earn a greater amount and queries concerning her expenditure, it is significant that the former matrimonial home has been sold and the husband continues to have the benefit of the income from the business which is totally owned by him and under his control. I am satisfied that the order, as sought by the wife by way of partial property settlement or interim settlement, is just and equitable.
16. The oral application made by counsel for the husband is an oral application is not necessarily supported by the affidavit material filed by the husband. The husband retains the business and therefore his financial circumstances are not comparable to the wife's financial circumstances.
17. The Court therefore does not propose to make an order requiring the distribution of a sum to the husband but strongly suggests that both parties, and their legal advisers, come to sensible arrangements in relation to all of the outstanding interim issues if they are unable to come to a resolution of the final property settlement proceedings.
18. The application of the wife seeks that upon settlement of the sale of the former matrimonial home, the proceeds of sale be applied as follows:
    • (1) Payment of the costs of sale including agent's commission and advertising.
    • (2) To pay out any mortgage secured over the property.
    • (3) To pay the sum of $250,000 by way of partial property settlement to the trust account of Norman Waterhouse on behalf of the wife.
    • (4) The balance then remaining to be placed in an interest bearing account in the joint names of the party's solicitors to be held pending further order of the Court or agreement of the parties as to the distribution of those funds.
    • (5) Otherwise interim applications adjourned to a date to be advised on the basis.
19. I have already made the order that if the wife is proposing to continue with her urgent application for urgent maintenance, she is required to give the husband's solicitors 14 days notice of that.
20. To make sure that the matter does proceed in the appropriate way, I will refer the final orders application to the Docket Registrar for directions at a date to be advised to the solicitors for the parties.
21. I reserve the question of costs of the interim applications generally.
22. Consideration needs to be given to those matters which were not proceeded with today and the impact of that on the question of costs in due course.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 10 December 2010.