ALLEN & MEREDITH

[2015] FamCA 644

FAMILY COURT OF AUSTRALIA

ALLEN & MEREDITH [2015] FamCA 644

FAMILY LAW – PROPERTY – INTERIM – Where the wife sought to retain the husband’s share of sale proceeds in her solicitor’s trust account pending determination of her substantive application – Where the wife contended that her retention of the sale proceeds was necessitated by the husband’s failure to pay adult child maintenance and her costs of his unsuccessful appeal – Where the wife contended that her retention of the sale proceeds was also necessary to preserve the orders sought by her in the substantive proceedings – Where the wife failed to establish the alleged failures of the husband to pay adult child maintenance and her costs – Where it was found that the wife could not rely on the matters raised by her substantive application to justify her retention of the husband’s share of sale proceeds – Wife’s application dismissed.

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

APPLICANT: Ms Allen

RESPONDENT: Mr Meredith

FILE NUMBER: SYC 6886 of 2008

DATE DELIVERED: 4 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 13 July 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Mirza-Price

SOLICITORS FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Ms Murphy

THE RESPONDENT: In person

Orders

1. That paragraph 2 of the wife’s Application in a Case filed on 14 April 2015 is dismissed.

2. That paragraph 3 of the wife’s Application in a Case filed on 14 April 2015 is withdrawn and dismissed.

3. That both parties do all things and execute all documents required to cause payment to the husband of all monies due to him from the proceeds of sale of the property situate at B Street, Suburb C (“the Suburb C property”) in accordance with the orders of 6 June 2014.

4. That the wife deliver to the husband, within seven days of the date of these orders, the sales inspection report and auction agency agreement between the wife and D Real Estate in respect of the Suburb C property.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allen & Meredith 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 SYDNEY

FILE NUMBER: SYC 6886  of 2008

Ms Allen

Applicant

And

Mr Meredith

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. On 13 July 2015 the competing applications for interim orders of

   
   

   Ms Allen (“the wife”) and Mr Meredith (“the husband”) came before me in a duty list.  The parties expected me to read, in the context of a busy duty list, seven affidavits and Financial Statements with a combined thickness of some three centimetres including annexures.

2. By an Application filed on 14 April 2015 the applicant wife sought inter alia the following interim orders:

   2.That the Father shall do all such things as may be necessary to authorise and direct the sum of $300,000 from his share of the proceeds of sale of the property situated at and known as [B Street, Suburb C] pursuant to Order 1 of the Orders dated 6 June 2014 to be paid into the trust account of Mills Oakley Lawyers pending determination of the Mother’s substantive application and pending the conclusion of the costs assessment pursuant to the Orders of the Full Court of the Family Court dated 21 November 2014.

   3.That the Wife be granted leave to file an application for costs and an itemised costs account pursuant to Rule 1.14 of the
   Family Law Rules 2004 (Cth).

3. During the interim hearing the wife withdrew her application for leave to file an application for her costs of the substantive proceedings out of time.  In an Outline of Case dated 13 July 2015 the legal representative for the wife indicated that she sought the following order only for the purposes of the interim hearing:

   That the Father shall do all such things as may be necessary to authorise and direct the sum of $230,677.53 from his share of the proceeds of sale of the property situated at and known as [B Street, Suburb C] pursuant to Order 1 of the Orders dated 6 June 2014 to be paid into a controlled monies account to be established by the Mother’s solicitors pending determination of the Mother’s substantive application.

4. By a Response filed on 1 July 2015 the husband sought the following interim orders inter alia:

   1.That the Wife’s application for interim orders be dismissed.

   2.That pursuant to s 66 S, Order number 18 of the Orders of
   Justice Watts dated 6 Jun (sic) 2014 be varied to the following:-

   Pursuant to s 66G Family Law Act 1975 the husband shall pay the NSW Guardian & Trustee by way of adult child maintenance in respect of the child [Ms E] born … 1995 the sum of $199 per week, the first such sum payable from 1 January 2014.

   3.That the applicant deliver to the respondent – within 24 hours – the sales inspection report and auction agency agreement between the applicant and [D] Real Estate for the auction sale –18 December 2014 – for the “[Suburb C] property” Lot … DP ...

   4.That the Applicant forthwith comply with order 5.8 of the orders made on 6 June 2014.

   5.That pursuant to s 117B (1) the Applicant pay interest on all monies owing to the Respondent pursuant to order 5.8 of the orders made on 6 June 2014, such interest to be paid at the same time as compliance with order 3 herein by the Applicant.

5. In an Outline of Case dated 13 July 2015 the husband purported to seek an order for summary dismissal of the wife’s Initiating Application filed on 14  April 2015.  The husband had filed no such application in written form, nor was leave sought to make an oral application for that relief until a late stage in the interim hearing.  Ultimately, counsel for the husband did not press for an order for summary dismissal on 13 July 2015.

6. It appeared that the husband sought to press for all orders set out in his Response.  I indicated that I had some difficulty with proposed order 2, in circumstances where there was no evidence as to the attitude of New South Wales Trustee and Guardian to their collection of adult child maintenance in lieu of the wife.

7. The legal representative of the wife stated that she consented to the husband’s proposed order 3 in principle but that there may be difficulties in provision of the documents within 24 hours.  A period of seven days was suggested and I see no difficulty with that proposal.

Background

1. The husband and the wife, who are aged 51 and 49 respectively, married in 1989 and separated in April 2009.  There are four children of the marriage, including a daughter Ms E (“Ms E”) born in 1995 and who is presently aged 20 years.  Ms E suffers from an intellectual disability and RETS Syndrome, a condition described as “a progressive neuro-developmental disorder associated with a gene defect” by the Guardianship Division of NCAT (“the Tribunal”) in reasons dated 2 September 2014.  I refer below to the involvement of the Tribunal in the history of litigation between the parties.

2. On 6 June 2014 final orders were made for alteration of property interests and adult child maintenance for Ms E.  These orders included provision for the sale of a property at B Street, Suburb C (“the Suburb C property”) in default of payment by the husband to the wife of a sum of $256,144.  Upon such sale, the nett proceeds were to be distributed as to 45 per cent to the wife; then payment to the wife of any arrears of adult child maintenance for Ms E and the balance to the husband.

3. The orders of 6 June 2014 included provision of the husband to pay adult child maintenance of $199.00 per week for Ms E, with a commencement date of 1 January 2014.  As noted, the orders provided for payment to the wife of any arrears from the husband’s share of the sale proceeds.

4. The husband appealed unsuccessfully against the orders of 6 June 2014.  His appeal was dismissed on 21 November 2014 and he was ordered to pay the wife’s costs.

5. The Suburb C property was sold for $1,815,000 in December 2014.  The husband’s share of the sale proceeds amounted to $416,969.87, which was paid into the trust account of the solicitors for the wife.  Those solicitors have refused to release to the husband all but the sum of $116,969.87.

6. On 4 February 2015 the wife filed an Initiating Application.  She filed an Amended Initiating Application on 14 April 2015, by which she sought the following final orders:

   1.That Order 18 of the Orders of His Honour Justice Watts dated 6 June 2014 be varied to the effect that the father shall pay to the mother pursuant to sections 66G, 66L and 66K of the Family Law Act 1975 (Cth) by way of lump sum child maintenance in respect of the child [Ms E] born … 1995 the sum of $207,000.

   2.That the Father shall pay the Mother’s costs of and incidental to the substantive proceedings between the parties being proceedings number SYC 6886/2008.

   3.That the Father shall pay the Mother’s costs of and incidental to this Application.”

7. I was informed that the wife sought a lump sum on account of adult child maintenance in the contested proceedings which resulted in the orders of 6 June 2014.  The wife failed in that application and an order was made for the husband to pay periodic adult child maintenance.

8. In October 2013 the wife applied to the former Guardianship Tribunal for an order that she be appointed as guardian and financial manager for Ms E.  The husband opposed that application and sought an order for the appointment of the New South Wales Trustee.  On 17 February 2014 the Tribunal appointed the wife as guardian for Ms E for a period of twelve months, for the purpose of making decisions in relation to her access to services and travel arrangements.  Further, on that date, the Tribunal appointed the Public Guardian to make decisions concerning Ms E’s accommodation and respite care.  On 2 September 2014 the Tribunal committed management of the financial affairs of Ms E to the New South Wales Trustee.

Consideration

1. The wife sought to justify her retention of a large portion of the husband’s share of the proceeds of sale of the Suburb C property for reasons which were expressed as follows in her Outline of Case:-

   The Mother seeks to preserve the orders sought by her in the substantive proceedings and costs of the appeal as assessed by obtaining an order to retain the sum of $230,677.53 due to the Father pursuant to the final Orders in her solicitor’s trust account having regard to the history of the Father’s conduct in these proceedings and non-payment of adult child maintenance and in particular due to the Mother’s concerns that the Father may relocate temporarily or permanently to [Country F] and be invested.

2. The last of these purported justifications can be dealt with quickly and briefly.  There was no evidence that the husband may relocate temporarily or permanently to Country F.  The husband operates a “… search portal” in Country F and often travels to that country for business reasons.  The wife’s evidence that the husband may relocate to Country F consisted solely of a purported hearsay report to her from “the children” that the husband told them that he intended to do so.  The husband denied on his oath that he has any intention to live in Country F.  This contention does not assist the wife’s case.

3. The wife relied on an alleged failure on the part of the husband to pay adult child maintenance for Ms E.  At the interim hearing, however, her legal representative stated, “The wife concedes that the husband is technically
   up-to-date with adult child support but she cannot access some held by the Public Trustee.”

4. In his affidavit of 30 June 2015 the husband deposed that he ceased paying adult child maintenance for approximately six months after the decision of the Tribunal on 2 September 2014.  He claimed that “a few months after the Tribunal’s decision” he received a questionnaire which suggested to him that payments should be made to the New South Wales Trustee, rather than the wife.  The husband further deposed that arrears of adult child maintenance were paid to the wife from the proceeds of sale of the Suburb C property.

5. The husband gave uncontradicted evidence that he has made regular payments of adult child maintenance, between February and June 2015 inclusive, to the New South Wales Trustee (husband’s affidavit of 30 June 2015, paragraph 17 and annexure E).  He deposed that he may have been in error in making payments to the New South Wales Trustee rather than the wife and indicated an intention to direct money to the latter, pending resolution of these proceedings.

6. In these circumstances I am not persuaded that the wife has demonstrated a failure by the husband to pay adult child maintenance such as to justify an order to prevent him from receiving his share of the sale proceeds of the Suburb C property.

7. The wife relied upon an alleged failure by the husband to pay her costs of his unsuccessful appeal.  The husband gave uncontradicted evidence that the wife’s solicitors served an itemised account upon him on 7 April 2015 and that he then made an offer of settlement.  The husband deposed further that the costs issue is listed for a telephone mention before a Registrar on 3 August 2015.  In my view, this submission does not assist the wife in her attempt to prevent the husband from receipt of his share of the proceeds of sale of the Suburb C property.

8. It appeared that the wife further relied upon the relief sought in her substantive application filed on 14 April 2015 as a basis for her retention of part of the husband’s share of the proceeds of sale of the Suburb C property.  She sought an order that the husband pay to her a lump sum of $207,000 on account of adult child maintenance.  As noted, the wife’s application for a lump sum on account of adult child maintenance was refused by way of the orders of 6 June 2014.

9. I was not invited to read the reasons for refusal of the wife’s application for payment of a lump sum by way of adult child maintenance. I wonder, however, what change in circumstances might warrant a variation of the periodic order to a lump sum arrangement in the short time frame of some eight months.  The wife first attempted to file an application for payment of a lump sum on account of adult child maintenance in February 2015.

10. In my view, the wife cannot rely upon any of these matters, taken individually or collectively, in support of the relief sought in this part of her interim application.  In my view, the husband is entitled to receipt of the whole of his share of the proceeds of sale of the Suburb C property and I will make the orders which he seeks so as to enable him to receive those funds.

11. At this stage in the proceedings I am not prepared to make an order that the wife pay interest on the retained portion of the husband’s share of the sale proceeds.  That application can await a final resolution.  I am not prepared to make any orders for payment of adult child maintenance to the New South Wales Trustee in the absence of any evidence as to the attitude of that organisation to such a proposal.

I certify that the preceding twenty-six paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 4 August 2015.

Associate: 

Date:  4 August 2015