ACKLAND & BILLINGS

[2017] FamCA 887

FAMILY COURT OF AUSTRALIA

ACKLAND & BILLINGS [2017] FamCA 887

FAMILY LAW – INTERIM – PROPERTY – Where the applicant seeks access to proceeds of the sale of the former matrimonial home to pay legal fees –Where it is just and equitable to make an interim property settlement order – Where an order is made for the applicant to receive $43,000 by way of interim property settlement – Where the balance of proceeds are to be invested.

Family Law Act 1975 (Cth), ss.79, 80

Harris & Harris (1993) FLC 92-378
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan (Interim Property Order) (2011) FLC 93-466

APPLICANT: Ms Ackland

RESPONDENT: Mr Billings

INDEPENDENT CHILDREN’S LAWYER: Seth Solicitors

FILE NUMBER: BRC 5342 of 2015

DATE DELIVERED: 27 October 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 16 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Pullos Lawyers

THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Seth Solicitors

Order

1. B Lawyers are hereby authorised to transfer to the applicant’s solicitor’s trust account the sum of $43,000.

2. The payment referred to in the preceding paragraph is a payment to the wife pursuant to ss 79 and 80(1)(h) of the Family Law Act (Cth) 1975.

3. The balance proceeds of sale of C Street, Suburb D, Queensland are to be retained by B Lawyers and invested on behalf of the applicant and respondent pending agreement of the parties or order of the Court. 

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 Ackland & Billings has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5342 of 2015

Ms Ackland

Applicant

And

Mr Billings

Respondent

REASONS FOR JUDGMENT

1. This matter came before me in the duty list on 16 October 2017 when the parties reached consent about parenting matters but were unable to agree about whether or not the applicant should be able to access some of the proceeds of sale of their former home in order to pay her legal fees. The sum the applicant seeks is $87,000 and for the balance to be transferred to her solicitor’s trust account and invested on behalf of the parties.

2. Unfortunately, the respondent was not legally represented and was clearly frustrated with the whole legal process and considers the money would be better spent on the parties’ child. No doubt there is some sense in his position but unfortunately agreement cannot be forced upon the parties. Why this matter has not settled is not something to which the Court is privy.

background

1. The applicant and respondent commenced cohabitation in 2003, married in 2011 and separated in 2014. The parties have one child together, namely, E, who is three years of age.

2. The former matrimonial home has been sold and the proceeds of sale in the sum of $216,071 are held in trust for the parties by a firm of solicitors.

3. In addition to the proceeds of sale the applicant has savings of $10,000, chattels valued at $2,000 and superannuation valued at $142,879 and the respondent has a debt of $4,992, chattels valued at $500, a car valued at $13,800 and superannuation valued at $36,323. The respondent also contended that he had a HECS debt of $20,000 incurred during the relationship.

4. The applicant seeks a final order for seventy percent of the net assets of the parties including superannuation. The respondent seeks a final order for an equal division. On the largely agreed asset pool seventy percent would entitle the applicant to $277,607 and fifty percent would entitle her to $198,291.

submissions made on behalf of the applicant

1. Ms Barron relies primarily on the power of the Court to make an interim property distribution pursuant to s 79 and 80(1)(h) of the Family Law Act 1975 (Cth) (“the Act”).

2. The written submissions prepared by Ms Barron set out the respective contributions of each party. It is common ground that the respondent remained in the former matrimonial home after separation while the applicant rented accommodation and that the respondent does not pay any child support.

3. It is argued that even if the applicant were to retain the assets in her possession and all of her superannuation she would still be entitled to a cash payment of $136,728 if she received seventy percent of the assets. It is submitted that it is unlikely that the Court will order the applicant to retain all of her superannuation given the disparity in the superannuation interests of the parties. If a superannuation split were ordered the applicant would be entitled to an even greater cash payment.

4. The respondent has proposed in open court for the applicant to receive sixty percent of the net asset pool which would also see the applicant receive a cash sum exceeding the sum now sought.

5. The applicant proposes to use the funds for her legal costs if the matter has to proceed to trial.

submissions made on behalf of the respondent

1. As noted, the respondent found the Court process somewhat difficult and found it particularly difficult to make any relevant submissions in opposition to the application for the release of funds. The respondent submitted that providing what in effect was a fighting fund for the applicant would only prolong the litigation and the money could be better spent. The respondent did not take issue with the ‘pool’ of assets available for distribution to any significant extent and insisted on informing the Court that he had offered the applicant sixty percent of the asset pool.

2. At one point, late in the afternoon and well into the hearing (and his own submissions in opposition to the order) the respondent sought leave to make an oral application for an adjournment so that he could obtain legal advice. The application was opposed and ultimately refused for the following reasons:

   a)The respondent had been served with the application on 11 August 2017;

   b)The respondent had filed a Response and Affidavit and Financial Statement;

   c)The respondent had had the benefit of the applicant’s written submissions for at least five hours;

   d)Costs were not a sufficient remedy for the applicant as she would remain out of pocket as an indemnity costs order would be unlikely;

   e)On the particular facts of this case there was little prospect of successfully resisting the application.

3. The respondent opposed any transfer of the funds to the applicant’s lawyers trust account but did not appear to oppose the funds being invested for the joint benefit of the parties.

applicable legal principles

1. The legal principles to be applied in making an order for interim property settlement are well settled.[1] In summary, those principles are:

   a)The discretion to make an interim property order must be exercised within the parameters of s 79 although not as thorough a consideration is required as would be if the Court were determining the matter on a final basis;

   b)It is preferable to make only one order (a final order) in the exercise of the s 79 discretion;

   c)The fact that it is an interim order requires a degree of caution;

   d)An applicant for an interim property order need not establish compelling circumstances;

   e)It is insufficient to establish merely that a property order of the type sought will be made at trial;

   f)A significant factor is whether or not any interim order is capable of reversal;

   g)If made, an order need not limit the use to which the sum ordered may be put.

   [1] Harris and Harris , Strahan & Strahan (Interim Property Orders) ; Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) and Stanford v Stanford (2012) 247 CLR 108

2. The parameters of s 79 require a consideration of whether or not it is appropriate to make an order (s 79(1)); whether it is just and equitable to make an order (s 79(2)) and the factors set out in s 79(4) including as far as relevant the matters set out in s 75(2) of the Act.

3. In Stanford & Stanford [2] the High Court held:

   40 … whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

   [2](2012) 247 CLR 108

discussion

1. The assets and liabilities of the parties or either of them are set out above. I am satisfied that it is just and equitable to make an order given that the parties have separated and any agreement they may have had about the use of their property is at an end.

2. In addition the applicant has made significant contributions to the acquisition, conservation and maintenance of the assets and to the welfare of the family. The respondent pays no child support. I am satisfied that it will be just and equitable to make an order pursuant to s 79 of the Act.

3. The applicant is seeking seventy percent of the asset pool while the respondent proposes in his Response that there should be an equal division. Having regard to the value of the applicant’s superannuation I consider it unlikely that she will retain all of her superannuation and it is more likely that a split will be ordered. However, even if the applicant were to retain all of her superannuation and retain the other items in her possession, she would be entitled to receive a cash sum of $43,000 if an equal division occurred. It may be that the applicant will receive considerably more cash at a final hearing but I propose to take a cautious approach.

4. Accordingly I propose to make an order that the applicant receive $43,000 by way of interim property settlement and that the balance be invested on behalf of the parties. I do not see any reason for ordering the balance to be transferred to the applicant’s solicitor’s trust account. As the order I propose to make is by way of interim property settlement I do not see any need to restrict the applicant’s use of those funds.  

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 27 October 2017.

Associate: 

Date:  27 October 2017.