BAKEMA & BERGER

[2020] FCCA 1467

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAKEMA & BERGER [2020] FCCA 1467

Catchwords:
FAMILY LAW – Property – application for urgent spousal maintenance – where the wife applies for urgent maintenance arising from the cessation of a business she operated – where there is a significant joint asset available to both parties – where distribution of this joint asset between the parties on an equitable or equal basis would resolve the wife’s need for urgent maintenance.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS BAKEMA

Respondent: MR BERGER

File Number: DNC 204 of 2020

Judgment of: Judge Young

Hearing date: 13 May 2020

Date of Last Submission: 13 May 2020

Delivered at: Darwin

Delivered on: 13 May 2020

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Mr Richards

Solicitors for the Respondent: Clelands Lawyers

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That forthwith the Husband pay to the Wife from Commonwealth Bank account BSB 065 905, Account number xxxxx37 the sum of $47,434.

2. The balance of the funds remaining in Commonwealth Bank account BSB 065 905, Account number xxxxx37 remain in the possession of the Husband to do with as he wishes.

3. That the parties attend a Conciliation Conference with a Registrar of the Court at Darwin on … 2020 at 3.30pm.

4. That the Applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.

5. That the Respondent reimburse the Applicant one half of the Conciliation Conference fee within 14 days thereafter.

6. That within 28 days the parties provide mutual informal discovery of all documents in their respective possession, custody or control.

7. That the parties prepare a draft joint statement of assets and liabilities on or before … 2020

8. That with respect of any asset the value of which is not agreed the parties obtain a joint written valuation at their joint expense to be available within 14 days prior to the conciliation conference.

9. That in the event either party seeks a superannuation splitting order that a copy of the proposed splitting order be served upon the Trustee of the superannuation fund at least 14 days prior to the conciliation conference.

10. That the matter be adjourned to … 2020 at 11.00am for further directions.

11. That in the event that valuations have not been agreed by the parties they are to notify the Registrar 14 days prior to the conciliation conference and confirm if the conference is to proceed.

12. That both parties produce to the other fourteen (14) days prior to the conciliation conference, documents as prescribed in Annexure A to this order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 204 of 2020

MS BAKEMA

Applicant

And

MR BERGER

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for urgent spousal maintenance.  The applicant wife is 50 and the respondent husband is 57.  There are three adult children of the relationship.  The wife says the urgent need for maintenance arises from the cessation of a business that she operated although it appears that she and the husband were directors of the business.  That business has failed or at least has been closed very recently and the wife, who does not really have any other formal qualifications, is effectively out of work. 

3. I accept there is a degree of need demonstrated and that it is urgent.  Whether or not the husband has the capacity to pay spousal maintenance on a recurring basis from his income is a matter that is not necessary to resolve today.  I am satisfied that there is sufficient cash available to these parties, without characterisation at this stage, if distributed to both parties as best I can on an equitable or equal basis.  This in my view would resolve any need the wife has for urgent maintenance.

4. The basis on which I propose to do that is that the parties have had or presently have a joint asset. This is in an account of the husband’s at the moment but there is no question that it is very significantly a joint asset, although perhaps not entirely joint, as the husband’s affidavit says he has added to it after separation. Nevertheless it is, in the broadest definition under the Family Law Act, matrimonial property and is therefore open or available for distribution according to orders of this Court. Accordingly I propose to make orders which will see the distribution of the approximately $83,000 that is available to the parties.

5. It was also raised with me that there was an earlier distribution by the wife to herself of $33,000.  I do not need to pursue that today as that is a matter that properly belongs to the final accounting between the parties and if they cannot agree then it is a matter to be determined at trial. 

6. In addition it is not disputed that the husband has paid himself the sum of $11,366 which he has used for payment of legal fees.  It is not in dispute that that has been paid from a capital sum available to the parties rather than simply from recurrent income of the husband post-separation.  That being the case it would appear that sum at a trial would be properly treated as an add-back and this course was not vehemently opposed by either party. 

7. I propose to make orders that would see the distribution of the $83,509.99 presently held in the husband’s Commonwealth Bank of Australia account with account number xxxxx37. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 4 June 2020