AMSTEL & AMSTEL - [2015] FamCA 661

FAMILY COURT OF AUSTRALIA

AMSTEL & AMSTEL

[2015] FamCA 661

FAMILY LAW – PROPERTY – Interim distribution – wife’s application for partial property distribution for the purpose of re-housing herself – where the former matrimonial home has been sold – where the wife has temporary accommodation – where the amount sought is less than that the wife is likely to receive at a final hearing – Strahan considered – orders made for part property settlement to the wife

FAMILY LAW – SPOUSAL MAINTENANCE – Husband’s application to discharge interim spousal maintenance orders – no basis for discharge of interim spousal maintenance orders ––orders made dismissing the husband’s application

Family Law Act 1975 (Cth)

Gabel & Yardley [2008] FamCAFC 162; (2008) FLC 93-386
Strahan & Strahan (Interim property orders) [2009] FamCAFC 166; (2011) FLC 93-466

APPLICANT:

Ms Amstel

RESPONDENT:

Mr Amstel

FILE NUMBER:

MLC

391

2015

DATE DELIVERED:

14 August 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

6 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lane

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr St John QC

SOLICITOR FOR THE RESPONDENT:

Beswick Foulkes Family Law

ORDERS

That from the proceeds of the sale of the former matrimonial home located at B Street, Suburb C, Victoria, the wife forthwith be paid the following sums:
1.1from the deposit monies the sump $6,980.56 in accordance with paragraph 5 of the Amended Application of the Wife filed 4 August 2015; and
1.2the sum $2,000,000 (“the payment to the Wife”) to be paid as follows:
1.2.1$200,000 to be immediately released to the wife from the deposit monies; and
1.2.2$1,800,000 to be paid upon settlement.
The payment to the Wife pursuant to order 1.2 to be characterised as partial property settlement.
That the Husband's Amended Response to an Application in a Case filed 4 August 2015 be dismissed.
That the Wife’s Amended Application in a Case filed 4 August 2015 be dismissed.

BY CONSENT IT IS ORDERED:

The business known as "D Pty Ltd" be forthwith placed on the market for sale.
The Husband have the sole conduct of the sale subject to the following terms and conditions:
a)the business be marketed by E Agents ("the selling agents");
b)the reserve price for the sale be $236,250 or as the parties may hereafter agree in writing;
c)any sale be for cash settlement of the full purchase price in a period not exceeding 90 days;
d)the Husband keep the Wife promptly informed of marketing arrangements and of every offer of purchase received;
e)the Husband not enter into any sale arrangement for a price less than the reserve price without the written consider of the Wife first obtained;
f)that the Wife herself or through her solicitors Lander & Rogers be at liberty to make reasonable enquiry from time to time of the selling agents as to the progress of the sale and the Husband forthwith give all necessary authority to the selling agents to answer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AMSTEL & AMSTEL

Details

AGLC: AMSTEL & AMSTEL [2015] FamCA 661
Case: [2015] FamCA 661
Decision Date: 14 August 2015

CaseChat Overview and Summary

In the matter of *Amstel & Amstel*, Johns J of the Family Court of Australia considered an application by the wife for a partial property distribution to facilitate her re-housing, following the sale of the former matrimonial home. The wife was in temporary accommodation and sought an amount less than her anticipated final entitlement. The husband sought to discharge interim spousal maintenance orders.

The court was required to determine whether to grant the wife's application for a partial property settlement and whether to dismiss the husband's application to discharge the interim spousal maintenance orders.

Johns J reasoned that the wife's application for a partial property settlement was appropriate, noting that the amount sought was less than her likely final distribution and that the former matrimonial home had been sold. The court applied principles similar to those considered in *Strahan*, allowing for an interim distribution to address the wife's immediate housing needs. The husband's application to discharge the interim spousal maintenance orders was dismissed, as no basis for such discharge was established.

The court ordered that the wife be paid a total of $2,006,980.56 from the proceeds of the sale of the former matrimonial home, characterised as a partial property settlement. The husband's application was dismissed, and the wife's application was also dismissed, presumably as the orders made addressed the substantive issues raised. By consent, orders were made for the business known as "D Pty Ltd" to be placed on the market for sale, with the husband having sole conduct of the sale subject to specific terms and conditions, and for the remaining proceeds to be held in trust.

Orders

Orders of the court

That from the proceeds of the sale of the former matrimonial home located at B Street, Suburb C, Victoria, the wife forthwith be paid the following sums:

1.1 from the deposit monies the sump $6,980.56 in accordance with paragraph 5 of the Amended Application of the Wife filed 4 August 2015; and

1.2 the sum $2,000,000 (“the payment to the Wife”) to be paid as follows:

1.2.1 $200,000 to be immediately released to the wife from the deposit monies; and

1.2.2 $1,800,000 to be paid upon settlement.

The payment to the Wife pursuant to order 1.2 to be characterised as partial property settlement.

That the Husband's Amended Response to an Application in a Case filed 4 August 2015 be dismissed.

That the Wife’s Amended Application in a Case filed 4 August 2015 be dismissed.

BY CONSENT IT IS ORDERED:

The business known as "D Pty Ltd" be forthwith placed on the market for sale.

The Husband have the sole conduct of the sale subject to the following terms and conditions:

a) the business be marketed by E Agents ("the selling agents");

b) the reserve price for the sale be $236,250 or as the parties may hereafter agree in writing;

c) any sale be for cash settlement of the full purchase price in a period not exceeding 90 days;

d) the Husband keep the Wife promptly informed of marketing arrangements and of every offer of purchase received;

e) the Husband not enter into any sale arrangement for a price less than the reserve price without the written consider of the Wife first obtained;

f) that the Wife herself or through her solicitors Lander & Rogers be at liberty to make reasonable enquiry from time to time of the selling agents as to the progress of the sale and the Husband forthwith give all necessary authority to the selling agents to answer such enquiries.

Following payment from the sale proceeds of all selling expenses, including any necessary reimbursement, the remaining amount be held in trustee-approved bank deposit by the Husband's solicitors Beswick Foulkes Family Law on behalf of the Amstel Family Trust and not disbursed save with the written consider of the Wife or further Order of Court.

From the proceeds of sale of the property at B Street, Suburb C presently held by the Husband's said solicitors the Wife be reimbursed the payments totalling $6,980.56 she made towards the property as particularized in paragraph 3 of her affidavit filed 4 August 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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