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 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Amstel & Amstel 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 MELBOURNE

FILE NUMBER: MLC 391 of 2015

Ms Amstel

Applicant

And

Mr Amstel

Respondent

REASONS FOR JUDGMENT

Introduction

This matter came before me in a Judicial Duty List upon the application of the wife seeking a partial property settlement that she be paid the sum of $2 million from the proceeds of sale of the former matrimonial home.
The husband opposed that application. In the alternative he sought an order that the interim orders made in February 2015 that he pay to the wife spousal maintenance be discharged in the event that I acceded to the wife’s application for partial property settlement.
At the conclusion of the hearing I made orders in the terms sought by the wife and otherwise dismissed the parties’ interim applications. These are my reasons for judgment with respect to that decision.

Partial Property Settlement

Pursuant to s 80(1)(h) of the Family Law Act1975 (Cth) (“the Act”) the Court has the power to make orders pursuant to s 79 of the Act for partial property settlement.
In the decision of Gabel & Yardley [2008] FamCAFC 162; (2008) FLC 93-386 the majority of the Full Court (Bryant CJ and Coleman J) confirmed at paragraph 57 that:-
…the Court’s power to make orders with respect to settlement of property is not necessarily exercisable at only one time, and can properly be exercised by a succession of orders until the power to make orders with respect to property is exhausted.
In Strahan & Strahan (Interim property orders) [2009] FamCAFC 166; (2011) FLC 93-466 (“Strahan”) the Full Court, whilst acknowledging that it is preferable that there be one final hearing in s 79 proceedings, considered the circumstances in which the Court might exercise its power to make orders for partial property settlement. At paragraph 132 the Full Court stated as follows:-
…[I]n our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
At paragraph 137 the Full Court concluded that:-
Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that … the applicant … will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the orders sought to be made”… As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought … then that should be the end of the matter’. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
(Citations omitted)

The Parties

The wife is the applicant in the proceedings. She is aged 54 years and is engaged in home duties.
The husband is the respondent in the proceedings. He is aged 54 years and his occupation is company director. The husband, through his corporate entities, operates a hairdressing business.
The parties married in 1984 and separated in August 2014. The parties have two adult children.

The Proceedings

The wife commenced proceedings by filing an Initiating Application in January 2015. That application seeks orders for final property division between the parties. At the time of filing that application the wife sought to be excused from particularising the orders sought by her pending disclosure and valuation of the parties’ interests.
The husband filed a Response to Initiating Application in February 2015. The husband also seeks orders to finalise the property and maintenance claims between the parties and that he be excused from particularising orders sought pending full and frank disclosure and valuation of the parties’ interests.
The wife filed her current Application in a Case on 20 July 2015. The material relied upon by the wife at the hearing is as follows:-
·Amended Application in a Case filed 4 August 2015;
·Affidavit of the wife filed 21 January 2015;
·Financial Statement of the wife filed 21 January 2015;
·Affidavit of the wife filed 20 July 2015; and
·Affidavit of the wife filed 4 August 2015.
In addition to the above material, during the course of submissions counsel for the wife tendered for identification purposes the following documents:-
·Wife’s Property Schedule dated 6 August 2015 (Exhibit A1); and
·Minute of Final Orders sought by the wife (Exhibit A2).
The material relied upon by the husband in support of his response is as follows:-
·Amended Response to an Application in a Case filed 4 August 2015;
·Financial Statement of the husband filed 2 February 2015;
·Affidavit of the husband filed 2 February 2015; and
·Affidavit of the husband filed 3 August 2015.

Orders Sought

By the time of the commencement of the hearing, the parties had resolved by consent many of the interim issues sought to be raised. I made orders by consent with respect to the sale of the parties’ hairdressing business known as “D Pty Ltd”. Those orders also made provision for reimbursement to the wife for expenses incurred by her with respect to the sale of the parties’ property in Suburb C. The orders sought by the wife at the commencement of the hearing as set out in the Minute of Orders Sought by the Wife (as distinct from Exhibit A2, being the Minute of Final Orders Sought by the Wife) were as follows:-
1.      That from the proceeds of the sale of the former matrimonial home located at … [Suburb C], Victoria, the wife forthwith be paid the following sums:
…
1.2The sum of $2 million (the payment to the wife) to be paid as follows:-
1.1.1$200,000 to be immediately released to the wife from the deposit monies; and
1.1.2$1,800,000 to be paid upon settlement.
2.      That the payment to the Wife pursuant to Order 1.2 hereof be characterised as:-
2.1 Part property settlement, in the event that paragraphs 7 and 8 of the orders of 4 February 2015 continue in full force and effect; or
2.2 The sum of $1,800,000 to be characterised as part-property settlement; and
2.3The sum of $200,000 to be characterised as lump sum spousal maintenance, in the event that paragraphs 7 or 8 of the orders of 4 February 2015 are discharged.
The orders sought by the husband at the commencement of the hearing were as follows:-
(1) That the wife’s application … be dismissed.
(2) That in the alternative and in the event an Order is made in accordance with or similar to [the application of the wife] paragraphs 7 and 8 of the Orders of this Honourable Court made on the 4^th February 2015 be discharged.
The matter was conducted on the papers. Each party relied upon the material referred to above and their counsel’s oral submissions. Given the nature of the hearing, contentious facts cannot be determined without evidence being properly tested. Accordingly, in determining the matter, I have relied upon those facts which are agreed or not in issue.

Background

The parties’ marriage spanned a period of approximately 30 years. During the course of the marriage, they have acquired interests in a number of corporate entities. The parties or the entities controlled by them have interests in the following:-
·The business conducted in Suburb F. That business was originally established by the wife;
·A property in G Street, Suburb H;
·A property in I Street, Suburb J;
·The former matrimonial home in Suburb C which has been sold for the sum of $3.1 million. Settlement of that sale is scheduled to occur on 16 August 2015; and
·Interests in a self-managed superannuation fund valued at approximately $820,000.
During submissions, counsel for the wife tendered a Property Schedule which identified the parties interests and the value of those interests as alleged by the wife and the husband (Exhibit A2). The wife estimates the total value of the parties’ interests (inclusive of superannuation) to be approximately $6,600,000. Those interests, excluding superannuation, are said by her to be valued at approximately $5,784,000.
Senior counsel for the husband conceded that the husband’s assessment of the value of the parties interests does not differ significantly from that alleged by the wife, save that the husband alleges that there may be a capital gains tax liability to be taken into account in the calculation of the value of the parties’ interests. For the purposes of this application, the husband conceded that the value of the parties’ interests (excluding their superannuation interests) was in the order of $5.2 million.
In anticipation of the settlement of the sale of the Suburb C property, the wife vacated the home. Currently, the wife is living with friends; she says this is a short-term measure until she is able to obtain suitable accommodation for herself.
It was agreed between the parties that the assets acquired by them during the course of the marriage was the result of their combined hard work and efforts.
The only matter which was submitted may be a factor influencing the assessment of the parties’ respective contributions is a lump-sum permanent disability payment received by the wife in 2012. It is common ground between the parties that the proceeds of that payment were paid into their self-managed superannuation fund. It was submitted on behalf of the husband that that lump-sum payment arose as a result of an insurance policy held by the parties in the superannuation fund. There is no evidence before me as to the circumstances of that payment. Accordingly, I make no findings with respect to that issue.
In any event, it was conceded by the husband through senior counsel appearing on his behalf that the husband’s position at final hearing is that there should be an equal division of the parties’ interests.
Counsel for the wife tendered a Minute of Final Orders sought by the wife (Exhibit A2). Counsel for the wife confirmed that the wife would seek orders in the terms of that minute at the final hearing. That minute sought orders in the following terms:-
· That the property of the parties (including superannuation interests) be divided between the husband and the wife by way of final property settlement to effect an overall division as follows:-
A.To the wife – 60 per cent; and
B.To the husband – 40 per cent.
· That there be such payment of spousal maintenance from the husband to the wife as this Honourable Court deems just and equitable.
The effect of the husband’s concession that the wife is entitled to receive 50 per cent of the parties’ interests is significant in the context of the parties’ interim applications. Applying that percentage to the value of the pool as conceded by the husband, the husband’s case is that the wife is entitled to property valued at $2.6 million as well as an adjustment of the parties’ superannuation interests.
The wife seeks $2 million (or approximately 38 per cent of the pool of $5.2 million conceded by the husband) by way of partial property settlement. In those circumstances, there can be no issue as to the ability of the Court to adjust property as between the parties at the final hearing. This was conceded by senior counsel for the husband during his submissions.
Rather, it was submitted on behalf of the husband that the payment as sought by the wife would not be appropriate. Reliance was placed upon paragraph 139 of the judgment in Strahan where the Full Court said:-
We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
The wife’s case is that she seeks the partial property settlement in order to provide her with the ability to re-house herself. At paragraph 13 of her affidavit filed 20 July 2015 the wife deposes as follows:-
I seek the release of the funds to enable me to purchase a residence for myself to live in. At the current time I have no accommodation. On the other hand the husband has now obtained alternate accommodation for himself. I have the care of the family dog which restricts the scope of leasing accommodation which might be available to me on a short term basis. I have tentatively made arrangements for the dog to be cared for by a family friend and I am able to stay with a girlfriend but again only for a short period. I do not wish to take on any long-term leasing. Our son, [K], will continue to live with me.
At paragraph 15 the wife deposes:-
I have been looking at purchasing properties in the [Suburb L] and [Suburb M] area and from the enquiries I have made to date, expect to be able to find a two bedroom unit or townhouse (which has not been renovated) for somewhere in the vicinity of $1,500,000 to $1,700,000. There is every prospect that I might need to spend more monies. I also appreciate that there will be stamp duty and other costs associated with the acquisition which I will not be able to meet without an interim distribution of funds in the sum that I have sought in my application. I am particularly concerned that should I not be able to have access to funds to buy a residence that the property market will continue to escalate and further compromise my ability to purchase a residence…
In her affidavit filed 4 August 2015 the wife deposes as follows:-
19.Recently a property which I would like to purchase in the [Suburb L] area has been listed on the market and the auction has been scheduled soon. The property is a 1980s townhouse and consists of 2 bedrooms and a study. It has amenities I am seeking in a property including a garage and a courtyard. It is not subject to body corporate fees and its location is one that I am keen to live in.
20.The advertised price of the property is $1.25 million however I have spoken to the Agent who has the conduct of the sale and have been advised that the purchasers are seeking a sale price of somewhere between mid $1.5 million to $1.6 million. I have been following property sales in the area and expect the property to sell for in excess of the initial advertised price of $1.25 million.
21.I want to be in a position to bid at the auction or to be able to submit an offer prior to the auction date so that I can re-house myself appropriately.
The husband responded to the wife’s July affidavit by affidavit filed 3 August 2015. In that affidavit, the husband took issue with the amount the wife proposes to spend to re-house. At paragraph 15 of that affidavit, he deposed that he had made his own enquiries as to properties on the market for sale and had ascertained that a two-bedroom property could be purchased for between $500,000 and $700,000. Exhibit RA3 to that affidavit annexes copies of advertisements for properties said to be in that price range. Those exhibits disclose advertisements for flats in the Suburb L and Suburb M areas.
It was submitted on behalf of the husband that the amount sought to be spent by the wife in re-housing herself was excessive. Seemingly, the husband seeks to limit the amount applied by the wife to her residence from her property settlement.

In circumstances where the wife is currently living with friends, is housing a family pet at the home of other friends and where she seeks to apply her partial property settlement towards housing costs, I am satisfied that it is just and equitable to make an order for partial property settlement. I am satisfied that an order as sought by the wife is appropriate in those circumstances. Having regard to the concessions of the husband as to the value of the parties’ interests and the amount to which the wife is entitled by way of final property settlement, I am satisfied that it will be possible to make any necessary adjustment to take into account the payment to the wife at the final hearing.
The application of the wife is not motivated by the mere fact that she would be entitled to the amount sought at final hearing. It is common ground between the parties that the former matrimonial home occupied by the wife has been sold and she has had to secure alternate accommodation as a result of that sale; she is currently living at the home of friends. I accept the wife’s evidence that she seeks the payment in order to secure permanent accommodation for herself. Having regard to those circumstances I am satisfied that this is an appropriate case to exercise the power pursuant to s 79 to make an order for partial property settlement as sought by the wife.
As to the submissions made by senior counsel for the husband that the amount the wife seeks to apply to the purchase of a new home for herself is excessive, I do not accept that submission. The parties have sold the former matrimonial home for the sum of $3.1 million. The wife’s evidence is that she hopes to purchase a townhouse valued at between $1.6 and 1.7 million. The husband has conceded that the wife’s entitlement is no less than $2.6 million. In those circumstances, I am satisfied that there is no basis for the assertion made by the husband. Further, it is my view that to attempt to limit the amount expended by the wife on her housing in such a way suggests an overly-controlling and paternalistic approach; it is not for the husband to dictate to the wife the manner in which she applies her property settlement.

The Husband’s Application to Discharge Interim Spousal Maintenance Orders

On 4 February 2015 orders were made by consent by Bennett J which provided as follows:-
7. Until further order the husband pay or cause to be paid to the wife or for her benefit by way of spousal maintenance:
7.1$650 per week;
7.2all rates, taxes and utilities on the home;
7.3the wife's mobile phone expenses;
7.4out of pocket maintenance expenses for the home including the gardener and pool cleaner/maintenance;
7.5fuel and running costs for the vehicle driven by the wife.
8. Until further order the husband pay or cause to be paid to the wife the further weekly sum of $850, such payments to be characterised at trial.
The husband seeks that those interim spousal maintenance orders be discharged. The wife opposes that application.
The modification of spousal maintenance orders is governed by s 83 of the Act. The requirements to be satisfied in order to vary or discharge an existing spousal maintenance order are set out as follows:-
83(2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a)that, since the order was made or last varied:
(i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii) the circumstances of the person liable to make payments under the order have so changed; or
(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;
as to justify its so doing;
(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba) in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;
(c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
It was submitted on behalf of the husband that the maintenance order should be discharged as the order for partial property settlement in favour of the wife will denude the wife of the opportunity to contribute to her own maintenance by reason of the fact that the monies which would otherwise be available to earn income will be applied towards the purchase of her home.
Given that the settlement of the sale of the matrimonial home has not yet occurred, and therefore there is no income currently earned by the parties from that source, in my view that submission must fail; income from the sale proceeds was not a matter taken into account at the time the interim maintenance orders were made.
Further, it was conceded on behalf of the husband at the commencement of the hearing that there were errors in his Financial Statement filed 2 February 2015. In that document, which was relied upon by the parties at the time the maintenance orders were made, the husband deposed that his weekly income totalled $800. In fact, in opening it was conceded by senior counsel for the husband that the husband’s weekly income comprises of salary of $1,000 and rental income of $1,600, a total of $2,600 per week. In his Financial Statement, the husband deposes that his expenses total $800 per week. Hence in light of the concessions made on behalf of the husband, the husband has a surplus of income over expenses of approximately $1,800 per week.
Upon settlement of the sale of the former matrimonial home, the husband will be relieved from his obligation pursuant to paragraph 7 of the orders made 4 February 2015 to meet the costs of rates, taxes and utilities on the home and out-of-pocket maintenance expenses for the home including the gardener and pool cleaner. Hence, the husband will have additional income available to him upon settlement of the sale of that property.
Having regard to the concessions properly made on behalf of the husband as to his income, I am satisfied that there is currently no basis for a discharge of the interim maintenance order. There is no demonstrated change in the circumstances of the husband or the wife which would justify the discharge of that order.
Accordingly, I have dismissed the husband’s application seeking the discharge of the interim maintenance orders.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 14 August 2015

Associate:

Date: 14 August 2015