Babrow and Rackley (No 2)

[2010] FamCA 567

FAMILY COURT OF AUSTRALIA

BABROW & RACKLEY (NO. 2) [2010] FamCA 567

FAMILY LAW - PROPERTY - ex parte application

Family Law Act 1975 (Cth)

APPLICANT: Mr Babrow

RESPONDENT: Ms Rackley

FILE NUMBER: CAC 1164 of 2008

DATE DELIVERED: 30 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 30 June 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar Gesini &  Dunn

Orders

IT IS ORDERED THAT:

1. Leave be granted to the husband to proceed on an ex parte basis.

2. The husband’s application made in order 2 as sought in the Application in a Case filed on 30 June 2010 be dismissed. 

3. Application made in orders 3 and 4 as sought in the Application in a Case filed on 30 June 2010 be adjourned for Faulks DCJ to further deal with them in chambers.

NOTATION

1. I note that the lawyer for the husband has indicated that directions have already been made in respect of the husband’s application the wife pay the

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 1164 of 208

MR BABROW

Applicant

And

MS RACKLEY

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the husband has filed an application in a case and it has come before me on an ex parte basis, because there is a payment due tomorrow under orders made by Faulks DCJ on 24 June 2010, due to both of the parties, and the husband seeks a stay of that order, so far as it operates, to provide for the payment to the wife.

2. The husband also seeks that the court, at a later date, make an order for the wife to pay the husband’s costs of an application that was filed on 9 October 2008. 

3. The orders that were made by the Deputy Chief Justice provide for a payment to the husband of $225,727 and a payment to the wife of $99,369 from an account that is kept by a joint conveyancing solicitor containing the proceeds of the sale of the former matrimonial home.  As I have said, those payments are to be made by tomorrow and there is to be equal division of any interest. 

4. The husband provides an undertaking as to damages, but does not suggest for a moment that he should not be paid his $225,000 pursuant to the orders.  A stay is normally granted by this court after final orders are made in circumstances where an appeal has been lodged, and the rules provide for an application for a stay in those circumstances.

5. I accept the court also has an inherent power to grant a stay in circumstances, particularly, where an appeal has not been able to be formulated in writing, but is foreshadowed.  That inherent power would normally only be exercised in special circumstances.  Neither of those situations are the situation here, and I have not been provided with any authority that would indicate that, in the circumstances of this case, I would have power to stay the order that the Deputy Chief Justice has made.

6. If I am wrong about that, the basis upon which I am asked to exercise a discretion, should that power have existed, is to be found, it is submitted, on the evidence contained, firstly, in paragraphs 15 and 16 of the affidavit of the husband sworn on 29 June 2010.  That affidavit expresses a concern by the husband that, unless a stay of the order is granted, then the moneys will be received by the wife and she may dissipate the funds.

7. The husband refers to evidence given at the trial on 26 March by the wife who conceded at a past date she had given an amount of $56,000 to a girlfriend.  However, in that evidence the wife goes on to say that the girlfriend had given her back that money over time.  So, prima facie that is not evidence of dissipation of an asset, it is evidence of a loan that was repaid over time. 

8. The husband goes on to say that he does not believe that the wife has any other property from which costs orders could be satisfied.  That, clearly, is not an accurate statement, given that the lawyer for the husband indicated that there is a timeshare interest which is, he said, worth about $20,000 which, under the orders, the wife would be entitled to half of that amount.  That timeshare, obviously, will not be dissipated immediately.  The order set out a mechanism for the disposal of that asset. 

9. The husband, in his material, gives no indication as to what is the quantum of the likely costs that he seeks, and so I have no way of measuring whether or not that timeshare amount would be sufficient to satisfy the lawyers for the husband, although I suspect it probably would not be. 

10. The other thing I have been referred to is parts of the Deputy Chief Justice’s judgment.  The first part of that judgment to which I was referred are paragraphs 47 to 72.  That part of the judgment refers to an amount that the wife received by way of an insurance claim, and her accounting for what she did with those moneys.  Having read those paragraphs, it is clear that the trial judge allowed some amounts as reasonable living expenses, but added back some of the amounts expended by the wife as being amounts that should be properly available for distribution between the parties. 

11. Although His Honour has added back amounts onto the balance sheet, I do not read His Honour’s reasons for doing so because the wife, in some reckless or wanton way, dissipated assets. 

12. I am next referred to paragraph 76 to 87.  It was submitted that they were paragraphs which substantiated the proposition that $40,000 in cash existed and was dissipated by the wife.  I do not understand that submission.  Paragraph 87 of His Honour’s reasons contains a finding by His Honour that the $40,000 in cash did not exist, and he made not finding that such funds existed. 

13. In relation to paragraphs 100 to 105, which contain evidence in terms of the contributions of the parties, I did not find anything in those paragraphs which would provide any strong basis to support the proposition that the wife is likely to immediately, or in a short period of time, dissipate the funds to which she is entitled.

14. It is, in fact, a fairly serious step, at the end of a property case, to, in effect, keep a party from the entitlements that they have received as a result of the litigation.  The husband is not suggesting that he will not get his.  On the material that has been presented, I am not convinced, even if I had power, that as a matter of discretion there would be a basis for keeping the wife out of her funds. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  9.7.2010