BALFE & MOODY

[2019] FamCA 474

FAMILY COURT OF AUSTRALIA

BALFE & MOODY [2019] FamCA 474

FAMILY LAW – PROPERTY – Interim Property – Where previous order for sale by consent – Where default by father in regard to sale – Whether it is appropriate to make interim property orders – Where discussion of applicable principles – Where mother’s prospective entitlement ascertained – Where conservative order for capital payment appropriate – Where by way of enforcement Trustee for Sale appointed.

Family Law Act 1975 (Cth) s 79, 90SF(3)

Harris & Harris (1993) FLC 92-378
Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Ms Balfe

RESPONDENT: Mr Moody

FILE NUMBER: PAC 2239 of 2017

DATE DELIVERED: 17 July 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 March 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Watson Law Pty Ltd

SOLICITOR FOR THE RESPONDENT: Milford Haseldine & Williams

Orders

1. That for the purposes of Orders made 19 November 2018 Karen Watson, Solicitor be appointed Trustee for sale of the of the real estate properties situate at C Street, Town A in the State of New South Wales being Folio ID … and Folio ID … and D Street, Town B in the State of New South Wales being Folio ID … for the purpose of selling those properties at the best price reasonably obtainable and for this purpose the said properties shall vest in the said Trustee for sale.

2. That Order 5(d) made on 19 November 2018 be discharged.

3. That the balance of sale proceeds to be paid by the Trustee, firstly, to the mother or as she may otherwise direct in writing as to the sum of $250,000.00 and, secondly, as to the balance then remaining into a controlled monies interest bearing account operated by the mother’s solicitors pending further order of the Court.

4. That the characterisation of the sum payable to the mother be reserved to final trial or agreement between the parties.

5. That any application for costs be made by way of written submissions filed and served within 28 days from this date with any submissions in response to be filed and served within a further 14 days and on completion of submissions judgment will then be reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Balfe & Moody has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2239 of 2017

Ms Balfe

Applicant

And

Mr Moody

Respondent

REASONS FOR JUDGMENT

1. In the context of ongoing parenting and property proceedings commenced by the applicant mother/wife in May 2017, the mother on 23 July 2018 made application by way of Application in a Case for interim property orders. 

2. In that Application in a Case the mother sought to be appointed Trustee for sale of the real estate properties at E Street, Suburb F, in the State of Queensland and the property at D Street, Town B in the State of New South Wales with the proceeds of sale after discharge of secured mortgages being paid to her for the purpose of her purchasing a property for the accommodation of herself and the children of her relationship with the respondent.

3. On 10 September 2018 the applicant’s Application in a Case was amended in that she now sought an order that she be appointed Trustee for sale of the real estate property at C Street, Town A in the State of New South Wales and that on the sale after discharge of certain loans the net proceeds be made available to her for purchasing a property for the accommodation of herself and the children.

4. Subsequently, on 18 March 2019, by way of a further amendment to her Application in a Case the applicant sought orders that a Trustee, not being herself, be appointed to sell the property at Town A with the net proceeds of sale being paid to the applicant by way of interim property adjustment.

Context

1. The applicant mother/wife and respondent father/husband were in a de facto relationship cohabiting for a period from about June 2006 to March 2017. 

2. There are two children of the parties’ relationship presently aged nine and eight.  The children reside full-time with the applicant mother. They have no relationship with the father as discussed below.

3. At the time of commencing proceedings in May 2017, the respondent father was incarcerated as a consequence of being bail refused relating to alleged serious assaults on the applicant mother and firearms offences. He has now been sentenced with his first release date being March 2020. He remained in custody, bail refused, until his final sentencing.

4. Relevantly, on 19 November 2018, when the respondent appeared by phone from gaol interim orders were made by consent as follows:

   (1)The proceedings are adjourned for further judicial case management and/or further interim hearing to 9.30 am on Friday, 1 February 2019.

   UPON NOTING THAT THE HUSBAND CONSENTS TO THE APPOINTMENT OF A TRUSTEE FOR SALE OF THE REAL ESTATE PROPERTY SITUATE AT TOWN A AND TOWN B AND FURTHER CONSENTS TO A SUITABLY QUALIFIED SOLICITOR FROM CC GROUP AT SUBURB H TO BE APPOINTED AS TRUSTEE, IT IS ORDERED THAT

   (2)The wife file and serve a consent to act as trustee for sale of the Town A and Town B properties by a solicitor holding an unrestricting practicing certificate from CC Group at Suburb H.

   (3)Upon receipt of that consent, that named solicitor will be appointed by order in chambers as trustee for sale of the real estate property situate at C Street, Town A and D Street, Town B NSW for the purpose of selling those properties at the best price reasonably obtainable and for this purpose the said properties shall vest in the trustee for sale.

   (4)The husband do all necessary things and sign all necessary documents to authorise and direct that the certificate of title for the property in Town A be made available to the trustee at his request.

   (5)Upon sale of the properties, the proceeds of sale be paid as follows:

   (a)In payment of agents commission, advertising expenses, legal expenses and trustees fees;

   (b)Payment of any contract adjustments as to outgoings;

   (c)In discharge of any mortgage encumbrance secured over the said properties; and

   (d)With the balance of sale proceeds to be paid by the trustee into a controlled monies interest bearing account pending further order of the Court.

   (6)The wife file and serve any Amended Application in a Case and any further affidavit material to be relied upon by her in support of any application for interim distribution of property by no later than Wednesday, 19 December 2018.

   (7)The husband file and serve any affidavit material in response thereto by no later than Wednesday, 16 January 2019.

   (8)The parties have liberty to relist on short notice in appropriate circumstances by application to the Court in chambers.

   (9)Pursuant to section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW), the NSW Commission of Corrective Services shall cause the prisoner, MR [MOODY] MIN …, and who is held at J Correctional Centre, to be made available to attend by way of AAPT telelink at the Family Court Parramatta at 9.30 am on Friday, 1 February 2019.

5. Subsequently on 1 February 2019 when the respondent appeared by phone the following further interim orders were made:

   In respect to the Application in a Case filed by the wife on 23 July 2018 as amended:

   (1)The Respondent husband file and serve a Response to that Application in a Case together with one consolidated affidavit of his evidence relied upon in respect of any orders sought by him in that Response no later than 22 February 2019.

   (2)The Applicant wife file and serve an updated financial statement by no later than 15 February 2019.

   (3)Interim application filed 25 July 2018 as amended be adjourned for judicial case management, interim hearing or undefended hearing to 9.30am on Friday, 1 March 2019.

   (4)The Respondent wife file and serve a consent to act as trustee for the purposes of orders made 19 November 2018 by a suitably qualified solicitor holding an unrestricted practicing certificate and having a trust account.

   (5)The Respondent husband has leave to attend the next Court date by electronic means.

   (6)Pursuant to section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW), the NSW Commission of Corrective Services shall cause the prisoner, MR [MOODY] MIN …, and who is held at J Correctional Centre, to be made available to attend by way of AAPT telelink at the Family Court Parramatta at 9.30 am on Friday, 1 March 2019.

6. The respondent father filed a discrete Application in a Case on 19 February 2019 seeking the release of certain funds held by his solicitor to meet costs and disbursements in his criminal proceedings.  That application was listed before the Court on 1 March 2019.

7. On 1 March 2019, when the respondent was represented by his solicitor, orders were made by consent in the following terms:

   (1)That the Applicant wife’s Amended Application in a Case and the Respondent husband’s Application in a Case filed 19 February 2019 be stood over to 9.30am on Monday, 17 June 2019.

   (2)That the sum of $100,000.00 held in the trust account of Mr H, solicitor, be released for use by Mr H in conducting a defence of criminal proceedings in which the Respondent husband is the defendant.

   The Court Notes:  The Respondent husband’s aunt, Ms G will on or before 8 March 2019 pay the sum of $15,000.00 to the mortgagee of the property at D Street, Town B to cover arrears and payments up to approximately 30 May 2019.

   IT IS FURTHER ORDERED THAT

   (3)Leave is granted to the parties or either of them to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.

   (4)The parties attend for the purposes of child and parents intake assessment interviews at 9.00am on Thursday, 4 April 2019 and obey all reasonable directions from the consultant as to such other people who may be relevant for the purposes of the interviews, noting that the father is presently in custody and arrangements will need to be made for engagement at interviews by telephone.

   (5)The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than 29 March 2019.

   (6)Leave is granted to the parties to have such access to such documents produced on subpoenas in these proceedings as relate to the financial issues between the parties.

   THE COURT NOTES THAT

   (7)The father, presently in custody, has pending criminal charges for hearing by jury trial commencing late April 2019 and the adjourned date is to facilitate the completion of those proceedings prior to further case management directions.

8. Subsequently, proceedings were relisted upon the respondent’s solicitor informing the applicant’s solicitor that the respondent’s aunt would not be making funds available as noted above to meet mortgage arrears over the Town B property in which the mother and children live.

9. On 18 March 2019 the applicant mother’s interim application was listed before the Court for judicial case management.  On that date the Court made orders, in summary:

   (1)that the mother have leave to file a Further Amended Application in a Case and any further affidavit supporting that application;

   (2)that the respondent father be served by way of facsimile transmission by no later than Wednesday, 20 March 2019;

   (3)that the respondent father have leave to appear by telephone on the adjourned date 22 March 2019; and

   (4)that pursuant to section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) the NSW Commissioner of Corrective Services cause the prisoner, the respondent father, to be available to appear by phone at 9.30 am on the adjourned date.

10. The further amended interim application of the mother was heard on 22 March 2019. The respondent was represented by his solicitor Mr Nyman.  The respondent husband was ordered to file and serve any written submissions to be relied upon as to the applicant wife’s interim property application by no later than 5 April 2019.

11. No submissions were received and on 13 May 2019 judgment was reserved.

12. Subsequently, on 20 May 2019 the respondent then unrepresented made further application by way of Application in a Case.  In summary, he sought orders that provided for certain funds held in his criminal law solicitors trust account to be paid in reduction of the mortgage encumbrance secured over the Town B property and that such funds be not redrawn without leave of the Court.

13. The respondent’s Application in a Case was returnable before a registrar on 13 June 2019 and listed for judicial case management on 4 July 2019 on which date the applicant mother’s Application in a Case in which judgment was reserved was relisted on the basis that the respondent father’s Application in a Case was, in effect, seeking to reopen the interim property issues. The father on 5 July 2019 by letter to the Court withdrew his Application in a Case filed 20 May 2019.

14. For the purposes of the present application the mother relies on:

    a)Second Amended Application in a Case filed 18 March 2019;

    b)her affidavit filed 19 December 2018;

    c)her Financial Statement filed 7 February 2019;

    d)affidavit of Karen Watson solicitor filed 18 March 2019;

    e)consent of Karen Watson solicitor to being appointed as trustee for sale.

15. The respondent father relied upon the following documents:

    a)his affidavit filed 17 October 2018;

    b)affidavit of Ivor Nyman solicitor filed 15 March 2019.

16. The respondent father failed to file a Response to the mother’s Application in a Case and sought its dismissal.

The mother’s evidence

1. The mother is presently aged 36 and the father 42.

2. The parties commenced cohabitation in June 2006.  The mother’s child X from a previous relationship then aged three was part of their household.

3. In January 2002 the father purchased a property at L Street, Suburb N for $120,000.00 in part funded by a mortgage advance of $96,000.00.  The mother is unaware as to how the balance of purchase funds were provided.  That property was subsequently sold by the father in May 2007 for the sum of $255,000.00.

4. In May 2002 the father purchased a property at N Street, Suburb P for $175,000.00 in part funded by a mortgage advance of $154,001.00.  The mother is unaware as to how the balance of purchase funds were provided.  This property was sold in March 2009 for $260,000.00.  The mother is unaware as to how the proceeds of sale were dissipated.

5. In March 2005 the father purchased a property at O Street, Town Q for $118,000.00.  The property was subject to a mortgage to the National Australia Bank.  This property was sold in June 2005 for $132,500.00.  The mother is unaware as to how the proceeds of sale were dissipated.

6. In March 2005 the father purchased a property at R Street, Town Q for $132,000.00.  The mother is unaware as to how the purchase was funded.  The property was sold in November 2011 for $114,000.00.

7. The mother has found various mortgage statements that reveal the father’s indebtedness to S Bank of $76,075.91 as at 1 July 2006 (Loan -…300), another to S Bank with an indebtedness of $77,276.01 as at 30 June 2006 (Loan -…407) and a line of credit statement with the CBA bank with an outstanding balance of $12,123.37 as at 11 August 2006 (Loan -…800.  The mother is unaware as to which properties the various loans relate.

8. Prior to the parties’ cohabitation the father was living in a property at T Street, Town U.  At about the time of the parties’ cohabitation, that property was destroyed by a fire.  This property was subsequently sold by the father in January 2008 for $80,000.00.  The mother is unaware as to how the proceeds were dissipated.

9. The parties’ cohabitation commenced in the property at V Street, Town W that was owned by the father.  The mother has no knowledge as to the circumstances of the purchase. There was a mortgage secured over the property to BB Bank.  In September 2008 the father refinanced the mortgage over this property borrowing from the ANZ bank the sum of $256,750.92 which discharged the BB Bank mortgage.

10. The mother then aged 23 ceased employment at the time of the commencement of cohabitation to look after the household and care for her daughter.

11. At the commencement of the parties’ cohabitation the mother had no assets of any significance.

12. In May 2007 the father purchased a property at E Street, Suburb F for the sum of $367,500.00. The purchase price comprised a mortgage advance from the Commonwealth Bank and other funds provided by the father, the sources of which are unclear.

13. The first child of the relationship was born in 2009.

14. In 2010 the father tenanted his property at Suburb F and prior to such tenancy the mother assisted him in painting, renovating and preparing the property for rent. The mother asserts that she, otherwise, assisted the father in the administration of this rental property.

15. The second child of the relationship was born in 2010.

16. In December 2013 the father purchased a property at D Street, Town B for the sum of $397,000.00 with the assistance of a mortgage advance from DD Ltd of $238,000.00.  The mother is unaware as to how the balance of purchase money was funded.

17. The parties were separated for a period in 2013 with the mother and the children leaving the Town W property but the mother and father resumed cohabitation in February 2014 in the father’s property at Town B.  Prior to the resumption of the parties’ cohabitation, the mother had assisted the father in renovating and repairing the property at Town W so that it could be rented and assisted in the care of livestock on the property.

18. In March 2017 the father purchased a property at C Street, Town A (“the Town A property”) for the sum of $230,000.00 with the purchase price being funded by drawings from the mortgage advance secured over the Town B property in favour of DD Ltd that at that time had a minimal balance owing. The father drew funds for the 10 per cent deposit payable and to cover stamp duty of about $8,000.00 from his then CBA home loan that appears to have been secured over the Suburb F property.  The balance of purchase money was procured by way of redraws totalling about $235,000.00 from the mortgage facility at that time secured over the Town B property and transferred to the father’s CBA line of credit secured over the Suburb F property and then re‑drawn to fund the balance of purchase money.

19. At the time of settlement of this purchase the father was incarcerated being bail refused as a consequence of assaults on the mother.  The paternal grandmother completed the purchase by reason of a power of attorney granted to her by the father.  Subsequent to purchase of the Town A property, it has been tenanted with rental payments of about $230.00 per week being paid to the father’s company account.

20. During the period of cohabitation the mother was employed from 2007 to 2009 as a receptionist.  Thereafter she remained primary carer for the parties’ young children of the relationship.  In February 2016, about a year before separation she resumed employment as a courier at Town B.

21. During cohabitation when she was employed the mother paid for day-to-day household expenses and groceries and undertook domestic tasks in the home and in relation to the children.  The father from his income attended to payment of property outgoings and mortgages.

1. At the commencement of cohabitation the father was self-employed as an air-conditioning subcontractor.  The mother assisted him with the paperwork for his business including the preparation of primary accounting documents for tax purposes.  In 2009 the father commenced a business and the mother assisted the father in going about the conduct of this business until 2015.

2. The mother asserts a long history of violence and abuse at the hands of the father including physical assaults, degrading sexual acts on the mother and non-consensual sex.  The mother also asserts in December 2015 an assault on one of her children.

3. The police previously had intervened in an incident in December 2009 and the father was arrested.

4. In March 2017 the father perpetrated a significant assault on the mother, choking her and striking her about the face.  The mother and children managed to leave the premises in a motor vehicle. As they did the mother observed the father walking towards a shed where the father stored firearms and ammunition.

5. The father was subsequently arrested and charged in relation to his conduct relating to the mother. He was charged with:

   a)assault occasioning actual bodily harm;

   b)intentionally choke a person with recklessness;

   c)possess ammunition without holding a licence or permit;

   d)possess unauthorised pistol;

   e)possess unauthorised firearm, not keep a firearm safely – pistol; and

   f)sexual intercourse without consent (three charges).

6. The father was refused bail.  He has now been sentenced with his earliest release date in March 2020.

7. The mother has fears for her safety upon the father’s release.  Several pre-trial applications for bail by the father have been refused.  The mother, otherwise, asserts that she has continued to be harassed by the paternal grandmother and friends and associates of the father. She fears that the father will attempt to kill her on his release from custody.

8. At present the mother remains in occupation of the home at Town B with the children of the relationship.  The mortgage has fallen into arrears.

9. The children have had psychological intervention as a consequence of the domestic violence to which they have been exposed. 

10. The mother expresses concerns about continuing to live in the Town B property and seeks to be able to purchase or, otherwise, obtain accommodation for herself and the children that is not known to the father. The mother asserts that in December 2017 her child X then aged 16 moved out of the Town B property for fear of the father and/or his associates.

11. The mother says that at separation the assets of the parties were:

    a)The Suburb F property;

    b)The Town W property;

    c)The Town A property asserted by the father to have a value of $350,000.00 (see father’s Financial Statement filed 17 October 2018);

    d)The Town B property asserted by the father to have a value of $800,000.00 (see father’s Financial Statement filed 17 October 2018);

    e)Two motor vehicles asserted by the father to have a value of $5,000.00 (see father’s Financial Statement filed 17 October 2018);

    f)The father’s business EE Pty Ltd trading as EE;

    g)Personal property including antiques, jewellery, horse floats, tools and Saddlery asserted by the father to have a value of $20,000.00 (see father’s Financial Statement filed 17 October 2018);

    h)Various bank accounts;

    i)The father’s Superannuation 1 of about $4,800.00 (see father’s Financial Statement filed 17 October 2018); and

    j)The mother’s Superannuation 2 of about $4,000.00.

12. At separation the mother asserts that the liabilities of the parties were:

    a)Mortgages secured over the Town B property (DD Ltd);

    b)Mortgage secured over the Suburb F property (Commonwealth Bank);

    c)Mortgage secured over the Town W property (ANZ Bank); and

    d)Various credit card debts.

13. Subsequent to the parties’ separation in early May 2017, the father procured withdrawals totalling $37,000.00 from the home loans account secured over the Town B property.  Both sums were deposited into a Commonwealth Bank line of credit account operated by the father to which the mother has no access.

14. In September 2018 the mother discovered that the property at Suburb F had been sold in May 2018 for $420,000.00 by the paternal grandmother as power of attorney for the father.  The mother is unaware as to how the proceeds of sale were dissipated.  The mother has also ascertained that the father had sold Town W in July 2018.  Once again the paternal grandmother had acted on behalf of the father pursuant to the power of attorney.

15. Prior to the sale of the Town W property, the father informed the mother’s solicitor that he did not have available funds to make repayments on the mortgage secured over the Town B property that provided for the purchase of the Town A property, this notwithstanding his sale of the Suburb F property and in the imminent sale of the Town W property.

16. The father’s Financial Statement filed 17 October 2018 discloses that he received from the sale of the Suburb F property $116,884.50 and from the sale of the Town W property $105,871.95.  His application of those funds has been in payment of the sum of $100,000.00 to his solicitors in the criminal matter and in an asserted loan repayment to his mother of $100,000.00.

17. The father, otherwise, asserts in his Financial Statement that the remaining mortgages secured over the Town B property had a balance of $245,000.00 as at October 2018.

18. The mother asserts that as a consequence of the father’s conduct she suffers from Post-Traumatic Stress Disorder and has ongoing psychological counselling.  She works part-time earning about $250.00 per week.  She receives no child support from the father nor she receive any Centrelink benefits.

19. She remains residing in the former matrimonial home in Town B with the two children of the parties’ relationship and since 2017 has been paying all outgoings in relation to the property.

20. The children have no relationship with the father and in the circumstances outlined above may well be that in the future they will have no relationship with him. The children are of an age where the mother will have primary care of those children and the primary obligation for the housing and financial support for years into the future. Accordingly, considerations under s 90SF(3) of the Family Law Act 1975 (Cth) (“the Act”) will weigh heavily in her favour.

21. At present the asset pool comprises as best can be ascertained:

    a)the Town B property   $     800,000.00

    b)the Town A property  $     350,000.00

    c)Funds from   $     222,756.00

    d)Motor vehicles  $        5,000.00

    e)Personalty referred to above            $      20,000.00

    f)Father’s business  $         NK

    g)Father’s Superannuation                   $        4,800.00

    h)Mother’s Superannuation                 $        4,000.00

    $ 1,406,556.00

    Liabilities:

    Mortgage Town B property  $  245,000.00

    Various Credit Cards  $       NK

22. The net pool approximates $1,161,556.00.

The father’s evidence:

1. The father asserts that funds from the sale of the Suburb F and Town W properties have substantially been expended in payment of funds to his solicitors or repayment to his mother for funds that she has paid on his behalf and in payment of the sum of $11,544.04 to the Australian Taxation Office for outstanding tax. 

2. Otherwise, as to historical financial transactions his evidence substantially accords with that of the mother.

3. The father’s affidavit relied upon seeks orders that the Town A property be sold to discharge the mortgage secured over the Town B property, and that the Town B property be sold and that the proceeds of sale be paid to the mother’s solicitors to be held in a controlled monies account pending further order and subject to court order the father being able to draw down on those funds to meet his criminal costs.

Discussion

1. Presently there are orders in place made on 19 November 2018 that provide for the sale of the Town A and Town B property subject to the mother filing a consent from an appropriately qualified solicitor to act as trustee on the sales.

2. That consent has been filed and it is appropriate that there be an order made appointing that solicitor as trustee for sale for the purposes of those orders made 19 November 2018.

3. The orders of 19 November 2018 provide for the balance of proceeds of sale to be held by the trustee in a controlled monies account pending further order.

4. The substance of the mother’s present application is that she now seeks on completion of the sales that the net proceeds of sale of both properties be paid to her by way of part property settlement.

5. As can be seen from the table set out above and on the basis of the estimated values the sum that is likely to be available from the sales is in the order of about $900,000.00.  Such sum represents an overwhelming proportion of the present pool as can be identified.

6. The Court must give appropriate recognition to the assets introduced into the parties’ relationship at the commencement of cohabitation as outlined above, to the parties’ respective contributions during the period of cohabitation with an assessment of such contributions perhaps including on the part of the mother a Kennon adjustment to reflect issues of family violence during the cohabitation and, otherwise, to give recognition to what on present indications are a significant needs adjustment in favour of the mother under s 90SF(3) of the Act.

7. Doing the best in the present circumstances the mother’s upper range property entitlement may be in the range of 40 to 50 per cent of the ascertainable pool set out above.

The Law: Interim Property

1. The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.

2. Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.

3. In Strahan (supra), the Full Court said:

   132.In relation to the first stage, in 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.

4. Secondly, the Court is to have regard to relevant matters in s 79 of the Act.

5. It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. In Harris & Harris (1993) FLC 92-378 the Full Court stated that either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so. (Emphasis added)

6. It is important to have regard to an overall caution. In Harris (supra), the Full Court said:

   As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.

7. In Strahan (supra), the Full Court said at [132]:

   … 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.

8. It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then determine whether it is just and equitable to make a property settlement order.  Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered.

9. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.

10. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.

11. These principles apply equally to these parties’ de facto relationship.

12. Both parties in this matter, in any event, seek that the Court makes final adjustive orders.

13. The mother’s circumstances as to the accommodation herself and the children of the relationship are overshadowed by fear against a background of family violence. The father is serving a full‑time sentence of imprisonment as a consequence. His release is imminent in March 2020.

14. The mother seeks to reaccommodate herself and the children such that her whereabouts are not known to the father, his family and associates. She requires at least a significant capital payment to do so such that she may afford appropriate rental accommodation into the future pending final hearing of the issues before this Court. A significant capital payment to her of the whole of the proposed proceeds of sale is inappropriate in the circumstances. A payment well within the range is required so as to not be in the position that there would need to a prospective reversal at a later date.

15. On balance a payment from the proceeds of sale equal to about 25 per cent of the “pool” above is appropriate. The characterisation of that sum will be reserved to final hearing. Such payment will be in the sum of $250,000.00.

16. Orders will be made accordingly.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 July 2019.

Associate: 

Date:  17 July 2019