BECKMANN & BECKMANN
[2021] FCCA 211
•9 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BECKMANN & BECKMANN | [2021] FCCA 211 |
| Catchwords: FAMILY LAW – Property – interim hearing – spousal maintenance – partial property settlement. |
| Legislation: Family Law Act 1975 (Cth), ss.72, 74, 75, 79, 80 |
| Cases cited: Ashton and Ashton (1982) FLC 91-285 |
| Applicant: | MR BECKMANN |
| Respondent: | MS BECKMANN |
| File Number: | NCC 3262 of 2020 |
| Judgment of: | Judge Costigan |
| Hearing date: | 3 February 2021 |
| Date of Last Submission: | 3 February 2021 |
| Delivered at: | Newcastle |
| Delivered on: | 9 February 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Duane |
| Solicitors for the Applicant: | Gillard Family Lawyers |
| Counsel for the Respondent: | Mr Levick |
| Solicitors for the Respondent: | Gianacas Argiris McDonald |
THE COURT ORDERS THAT
Commencing Monday 15 February 2021, the wife pay periodic spousal maintenance to the husband in the sum of $400 per week in such manner as he directs in writing.
Within 28 days of the date of these orders the wife shall pay or cause to be paid to the husband by way of partial property settlement in the sum of $100,000 in such manner as he directs in writing.
The matter is adjourned for directions to 18 May 2021 at 10.30 am in the Federal Circuit Court of Australia sitting at Newcastle.
IT IS NOTED that publication of this judgment under the pseudonym Beckmann & Beckmann is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3262 of 2020
| MR BECKMANN |
Applicant
And
| MS BECKMANN |
Respondent
REASONS FOR JUDGMENT
The Proceedings
Mr Beckmann[1] (‘the husband’) and Ms Beckmann[2] (‘the wife’) are parties to these interim proceedings in which the husband seeks orders for partial property settlement and periodic spouse maintenance. The wife seeks a dismissal of the husband's application.
[1] The husband is the applicant in the interim proceedings and the respondent in the substantive proceedings.
[2] The wife is the respondent in the interim proceedings and the applicant in the substantive proceedings.
The husband relied upon the following documents:
(a)Response filed 23 September 2020;
(b)His Affidavit filed 27 January 2021; and
(c)His Financial Statement filed 27 January 2021.
The wife relied upon the following documents:
(a)Reply filed 25 November 2020;
(b)Her affidavit filed 28 January 2021; and
(c)Her Financial Statement filed 13 October 2020.
The husband's case
The husband asserts that;
(a)despite his best efforts, he is unable to support himself as he has had difficulty obtaining employment since the parties separated and is currently in receipt of Jobseeker Allowance;
(b)it was long marriage during which he made substantial contributions through his engagement in the business interests of the wife’s family and as a parent for the parties two children;
(c)the wife controls the bulk of the matrimonial assets. She resides in the former matrimonial home while the husband is in rental accommodation with no liquid assets available to him; and
(d)the wife has the capacity to pay the sums being sought that is $750 per week by way of spouse maintenance and $300,000 by way of a partial property settlement.
The wife's case
The wife asserts that:
(a)the husband has the capacity for employment and is able to maintain himself;
(b)it is unclear at this stage of the proceedings as to what the husband’s entitlement will be in circumstances where the matrimonial assets and liabilities have not been identified;
(c)she has made the overwhelming contribution to the acquisition of the matrimonial assets and the income she receives from her family’s trust is not guaranteed; and
(d)she and the parties’ children receive significant financial support from the maternal grandparents and the husband is asking the Court to extend their support to him.
Background
The husband is 53 he lives in City B. He operates a business.
The wife is 46 and lives in Town C where she has a studio and business.
The parties met in 2000 and married in 2004.
They separated on 7 June 2019 and lived under the same roof according to the wife or 4 September 2019 according to the husband when he vacated the former matrimonial home.
The parties divorced on 18 September 2020.
There are two children of the marriage, X aged 15 and Y aged 11. The children live with the wife and spend time with the father each week from Friday to Monday, half school holidays and time on special occasions. They attend D School and the school fees are paid by the maternal grandfather.
It is common ground that at the commencement of the relationship the wife owned the property situate E Street, Suburb F (‘E Street, Suburb F property’). She receives board from the tenant of that property of $150 per week.
The wife deposes that in the 1990s she was appointed as Trustee of a G Trust which was established for the purchase by the maternal grandparents of a property situate H Street, Suburb J.[3]
[3] The wife says that the H Street, Suburb J property was sold in July 2016 and the maternal grandparents received the proceeds of sale in the sum of $1,598,793.70.
The wife deposes that in 2001 she was appointed as Trustee of a G Trust which was established for the purchase by Mr K (‘the maternal grandfather’) of a property situate L Street, Suburb M (‘L Street, Suburb M property’).[4] The maternal grandfather is the named beneficiary under the terms of the Trust and has directed the wife receive the income from the L Street, Suburb M property.
[4] A copy of the relevant Trust Deed is annexure A to the wife’s affidavit filed 28 January 2021.
On 9 April 2008 the wife deposes that the N Trust[5] was established to purchase the business known as O. The trustee was O Pty Ltd and the wife was a specified beneficiary and the maternal grandfather the Appointer. The wife deposes that she contributed savings of about $478,000 and the maternal grandfather contributed about $1,900,000 as a loan into the Trust.
[5] Exhibit A
In 2010 the wife deposes that she was appointed as Trustee of G Trust which was established for the purchase by the maternal grandfather of the property situate P Street, Town C (‘former matrimonial home’).[6] The maternal grandfather is the named beneficiary under the terms of the Trust.
[6] A copy of the relevant Trust Deed is annexure B to the wife’s affidavit filed 28 January 2021.
In 2015 the O business was sold. The wife contends that the husband’s company O Enterprises owes the N Trust $401,213 and $123,000 in unpaid rent, however, there was no evidence of any demand for payment in the past 5 years.
Q Pty Ltd then became the Trustee of the N Trust. The maternal grandparents are the directors and shareholders of the Q Pty Ltd.
In or around 2017 the husband worked at the Employer R on weekends.
Between 2017 and January 2019 the husband worked on a full-time basis as a customer service officer for Employer S.
In or around March 2019 the husband established his business T ‘undertaking sales to U Company.’[7] During the COVID lockdown the husband applied for, was granted and continues to receive the Jobseeker Allowance.
[7] Husband’s affidavit filed 27 January 2021 at [33]
On 2 November 2020 the husband obtained employment
‘with the Employer V working in tele sales. I am paid a fixed rate $25 per hour, based on actual hours worked and commission on sales.’[8]
[8] Husband’s affidavit filed 27 January 2021 at [37]
The wife commenced these proceedings by way of initiating application filed on 8 September 2020 with respect to financial and parenting issues.
On 23 September 2020 the husband filed his response in which he sought interim orders for spouse maintenance and partial property settlement.
On 15 October 2020, the first return date of the application, orders were made for the parties to attend a section 11F Child Dispute Conference, and the husband’s interim application for financial orders was listed for hearing.
On 25 November 2020 the wife filed her reply.
At the interim hearing on 1 February 2021 both parties were represented by Counsel: Mr Duane appeared on behalf of the husband and Mr Levick on behalf of the wife. The hearing was conducted by telephone link and proceeded on the papers and by way of submissions. At the conclusion of the hearing I reserved my decision.
The relevant law – spouse maintenance
Section 72(1) of the Act provides that:-
A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason; and
(d) having regard to any relevant matter referred to in subsection 75(2).
The Full Court in Bevan & Bevan (1995) FLC 92-600 set out the process in determining spouse maintenance applications. Their Honours said as follows:-
“[W]e would state the law as being that an award of spousal maintenance requires:
(1) a threshold finding under s 72;
(2) consideration of s 74 and s 75(2);
(3) no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
(4) discretion exercised in accordance with the provisions of s 74, with reasonableness in the circumstances'’ as the guiding principle.”
Determination
The husband seeks an order that the wife pay to him interim spouse maintenance in the sum of $750 per week. He also contends that any award should be backdated to the date of filing of his application being 23 September 2020.
The first question is whether the husband is unable to support himself adequately. He is currently working in tele-sales earning on average $625 per week. His salary is topped up by Jobseeker which is a means tested benefit. Section 75(3) of the Family Law Act provides that
‘a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit’.
Prior to separation the husband ran the O business. It was sold in 2015. Since then he has worked in various capacities in the sales industry. Between 2008 and 2019 (excluding 2009) he deposes to an average income derived from employment of $17,780. In the two years since separation his income has been noticeably higher.
The husband says he has applied for a range of jobs including with W Company, Z Company and AA Company but his applications were unsuccessful.
In November 2020 he paid a deposit of $2,200 to secure a BB Franchise at CC Shopping Centre, City B. A dispute arose between the Centre Management and BB in relation to the proposed site at the CC complex. The dispute has not been resolved and the deposit was refunded to the husband on 19 January 2021. He does not say what the full purchase price was for the franchise or how he proposed to fund it.
In his Financial Statement of 27 January 2021 the husband entered a figure of $918 for his weekly income made up of $625 in salary and $293 Jobseeker Allowance, the latter being a benefit that must be disregarded pursuant to section 75(3). He deposes,
‘In the week commencing 2 November 2020. I successfully obtained employment with the Employer V working in tele sales. I am paid a fixed rate $25 per hour, based on actual hours worked and commission on sales. From commencing employment to present I have earned $5,672 in regular pay and $1,200 in commission, I am paid in arrears for work done so this figure is for work up to 17 January 2021. I have paid $966 in tax for this period. The income reflected in my amended financial statement is the average of this over the 11 weeks I have been employed.
I also receive Jobseeker as set out in my amended financial statement, I report my income fortnightly and the amount received varies depending on my income. Since commencing employment with the Employer V I have received fortnightly payments of $1,011, $795, $270, $582 and $274.’[9]
[9] Husband’s affidavit filed 27 January 2021 at [37]-[38]
On 23 December 2019 the husband received $12,017.50 when DD ceased trading and paid out their shareholders. On 11 March 2020 he also sold his EE shares and received $25,000. The husband has also made two withdrawals from his superannuation entitlement of $10,000 each under the Covid-19 early release of superannuation scheme.
The husband says that his weekly expenditure is $1,979 (which represents a shortfall of income over expenditure of $1,061). The largest expenditure by far is his rent of $700 per week and in his Part N expenses he has an entry of $300 for ‘estimated additional housing costs to obtain a suitable house’. The husband currently rents a 3 bedroom, apartment in FF Street in City B. He says that the apartment was originally leased in joint names when the parties had a trial separation in June 2019. The bond of $3,000 and the rent of $750 per week was paid by the wife. On 9 December 2019 the husband was advised by the managing agent that the rent was in arrears and that the wife had given notice to terminate the lease. The husband was able to take over the lease in his sole name and negotiated a reduction in the rent.
The husband says he ‘does not expect to be able to obtain a property of the same level of amenity at [P Street, Town C]’, however, the rental properties he annexes to his affidavits are 3 and 4 bedroom properties located in some of the most expensive suburbs in City B. Other than suggesting that ‘the children have historically enjoyed housing of a high standard’ or that he has to care for the family dog he offers no reason as to why he needs a 4 bedroom house or why he needs to live in Suburb GG or Suburb HH.
Part N expenses for holidays ($100) are not in my view reasonably claimed on an interim basis nor are the expenses claimed in respect of the children for telephone, car maintenance, gifts and cleaning.
In Brown & Brown[10] the Full Court discussed the meaning of the word ‘adequately’ in the context of section 72(1) and said:
[10] Brown & Brown [2007] FLC 93-316
[161] At a general level, we adopt the propositions identified by O’Ryan J as emerging from the authorities, in short:
The word “adequately” is not to be determined according to any fixed or absolute standard.
The idea that “adequate” means a subsistence level has been firmly rejected.
Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.
It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
In the Full Court decision of Wilson & Wilson(1989) 13 Fam LR 205, Strauss J said (at p 209):
A standard of living that in all the circumstances is reasonable for the party claiming maintenance is not necessarily the same standard as that enjoyed by the party who is ordered to pay maintenance. Normally, as in this case, the party who is ordered to pay maintenance is the party who generates the means and income out of which the maintenance is to be paid. Similarly, the standard of living that in all the circumstances is reasonable for the wife in this case, is not necessarily the same standard as that enjoyed during cohabitation. The orders which have been made in this case are intended to have a transient effect only.
I am satisfied that the husband has made reasonable attempts to find work noting his work and earnings history, his qualifications, the downturn in employment during the Covid-19 pandemic and recognising the responsibilities he has for the care of the teenage children on weekends.
The husband himself acknowledged that he should have no expectation that his pre-separation standard of living will or should be maintained but nor should it be reduced to a level below that required to meet his reasonable needs.
The Court accepts that the husband is unable to support himself adequately and has a shortfall between his income and his weekly expenditure and that he is in need for the reasons canvassed above at least to the extent of $400 per week.
As to the wife’s capacity to meet an order for spouse maintenance in her amended financial statement file 13 October 2021 she deposes to gross income of $2,569 per week consisting of:
(a)Income from rent $597
(b)Dividends $53
(c)Income from her business $423[11]
(d)Board from studio $150
(e)Allowance from maternal grandparents $1,346
[11] The wife deposes that the money she receives from the sale of her products is irregular and the figure she has included in her amended financial statement has been averaged over the last financial year.
Her Individual Tax Return for the year ending 30 June 2019[12] shows she received net rental income for the E Street, Suburb F property of $12,139 ($233 per week). The E Street, Suburb F property is owned by the wife and registered in her sole name.
[12] See Wife’s husband filed 28 January 2021, Annexure D. The wife does not disclose the current rent on the E Street, Suburb F property.
Her 2019 Tax Return also shows she received net rental income from the L Street, Suburb M property of $39,579 ($761). The L Street, Suburb M property is owned by the wife under a G trust in respect of which the maternal grandfather is the sole beneficiary. The wife deposes,
‘My father has also arranged for the rent for L Street, Suburb M to be paid to me directly on a discretionary basis based on the G Trust. Again, my father could at any stage terminate this payment at his discretion.’[13]
[13] Wife’s affidavit filed 28 January 2021 at [25]
The wife also receives distributions from the N Trust and JJ Family Trust which she says are paid at the sole discretion of her parents. At paragraph 15 of her amended financial statement the wife says she receives an allowance from the maternal grandparents of $1,346 (no breakdown is provided). The husband deposes that from August 2017 until 2020 the wife received $8,600 per month ($2,150) from the JJ Family Trust[14] and regular distributions from the N Trust. The wife only provided a copy of the Balance Sheet from the N Trust for financial year end June 2019 which disclosed distributions made (beneficiary not named but the wife is the sole specified beneficiary under the trust Deed) of $40,482 ($778).
[14] Husband’s affidavit filed 27 January 2021 at [27]
If the husband’s estimate of income from the JJ Family Trust is correct this would give a figure for total weekly income for the wife from the properties and the Trusts of $3,922. The wife’s 2019 Tax Return does not disclose any Trust income so presumably family trust distribution tax has already been paid. These are all matters which will require further investigation.
It is clear that very substantial sums of money came into the hands of the parties from the maternal grandparents during the marriage and that the wife and children continue to benefit from their generous support.
The wife does not dispute that she receives the rental income from her property in E Street, Suburb F but contends that she receives the rental income from the L Street, Suburb M property only through the generosity of the maternal grandfather and that income is not guaranteed. She acknowledges that she and the children receive significant support from the maternal grandparents but asserts that it is neither just nor proper for the husband to say that the maternal grandparents should support him as well.
In Hall v Hall [2016] HCA 23 the High Court made clear in Hall, that I am required to consider not only the wife's income, but also her financial resources. The majority stated:
[54] The reference to "financial resources" in the context of s 75(2)(b) has long been correctly interpreted by the Family Court to refer to "a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency". The requirement that the financial resource be that "of" a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee's discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation.
[55] Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual enquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.
………..
[57] Section 75(2)(o) plainly extends to any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account as showing that a party to the marriage is or is not able to pay spousal maintenance or is or is not able to support himself or herself. The paragraph is accordingly long been correctly interpreted by the Family Court as permitting consideration by a court of "all of the financial matters which are relevant to [a] particular case". Nothing in the language or structure of s 75 prevents a fact or circumstance which falls within s 75(2)(o) being also a fact or circumstance which gives rise to a matter under another paragraph of s 75(2), including s 75(2)(b).
The wife argues that she is ‘not in a great financial position’ and lives with the ‘beneficence and largesse’ of her family and if the Court were to make an order for interim spouse maintenance in favour of the husband it would not be anything approaching the $750 per week sought by the husband.
The wife's standard of living is one that, in all probability, she has enjoyed for most of her life and certainly prior to her marriage. Nevertheless, not all of her weekly expenditure is necessary for her support. In particular, household repairs of $173, children’s activities of $138 (when the maternal grandparents are attending to payment of school fees and costs), medical expenses of $125 where no chronic medical conditions with regard to the wife or the children were disclosed, entertainment and holidays ($153) and gifts ($67) could be reduced.
Taking a broad-brush approach to the expenses, especially in the absence of corroborative evidence and without cross-examination I excluded what I consider to be discretionary expenditure for both parties, as this is an interim order and I am satisfied that the wife can afford to pay the sum of $400 per week by way of maintenance.
The husband submitted that any order for spouse maintenance should commence from 7 days after the filing of his response, as to do otherwise would be iniquitous. I disagree. The orders sought by the husband in his response filed on 23 September 2020 were for interim spouse maintenance under s74(1) and not an application for urgent maintenance under s.77 of the Act. An ordinary application for maintenance requires a consideration of the available evidence including the relevant matters in s.75(2). In Ashton and Ashton (1982) FLC 91-285 Nygh J stated (at pp 77,613–77,614):
“An application for interim maintenance is basically different from an application for urgent maintenance. An application under s 77 is heard at a time when all the evidence is not yet to hand. It may have to be made ex parte or may have to be made on such evidence as the husband is able to supply in the short period before the matter is set down for hearing. An application for interim maintenance is a creature whose exact nature has not been adequately defined but, as I understand it, differs only from an application for permanent maintenance in that the order which is sought is an order until further order.... An application for “urgent” maintenance which will not be successful cannot be relabelled as “interim” maintenance. The requirements are quite different.
In such circumstances it may be appropriate to make an application for interim maintenance but an application for interim maintenance must not be confused with an application for urgent maintenance and the making of an application for interim maintenance cannot be used merely to re-label what in effect is an application for urgent maintenance. In this case I think that is what the wife is seeking to do.
On an application for interim maintenance, the normal procedures relating to applications for maintenance under s 74 must be observed and an application for maintenance can only be heard after each party has had the opportunity to adduce evidence, that is to say, the normal procedure for the filing of affidavits by both parties and the filing of financial statements must be observed.”
The wife filed her response material on 25 November 2020 and the competing applications listed for hearing at the first available opportunity.
I will therefore make an order pursuant to section 74(1) of the Act, that the Wife pay to the Husband interim spousal maintenance on a weekly basis in the sum of $400 and that order will be effective from the first Monday following the making of these orders.
The Law - Interim property distribution
The husband seeks financial orders on a final basis that he receive 40% of the non-superannuation assets of the parties and on an interim basis he also sought an order that the wife pay to him within 28 days a sum of $300,000 by way of an interim property settlement.
When considering making an interim property order, the overarching consideration is the interests of justice.
In Strahan & Strahan the Full Court referred to a two-step process in determining applications under section 79 for interim property settlement orders:
“The first step is to resolve whether to exercise the power before a final hearing and if it is resolved to do then the second step involves the exercise of that power.”[15]
And at paragraph 132:
‘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 s79 is a once and for all order made after a final hearing.’
[15] [2009] FamCAFC 166; Boland and O’Ryan JJ at paragraph 118
The husband submits that the wife is the named beneficiary of the N Trust which holds funds of $2,130.989.52 on term deposit with the National Australia Bank. He deposes that the balance in that account as at 6 October 2020 was $2,173,315.[16] He says that being a named beneficiary the wife also has access to funds as a lender to the N Trust. The Trust Balance Sheet annexed to the wife’s affidavit indicates that the wife is owed $478,271.45. He says that the wife could readily access those monies in the Trust via her loan account without having to deal with other creditors.
[16] Husband’s affidavit filed 27 January 2021 at [72]
The wife submits that at this stage of the proceedings it is unclear what the husband’s entitlement under section 79 will be. She says that she introduced the E Street, Suburb F property which was unencumbered at the commencement of the marriage. Again, if it is ultimately found that the properties which she holds as G trustee are matrimonial assets she has introduced those assets as well and made the overwhelming contribution.
She submits that the debt owed to her by the Trust is a ‘book debt’ - a historic loan incurred well before 2015. For the husband to suggest that she can make a call for those monies to satisfy an order for a partial property settlement in the sum of $300,000 she says is quite unrealistic.[17] The wife says that she has no control over the Trust, she is neither a Trustee nor an Appointer and if I understood her submission correctly that she could not access the monies in her loan account without the cooperation of the other creditors. Consequently, the order proposed by the husband would impose an obligation that she may not be able to meet.
[17] The Court had no evidence about the movements in the wife’s loan account over the past 5 years or the distributions made by the Trust to the wife over the same period.
The Financial Statements filed by the parties’ lists non-superannuation assets to which they respectively assigned values totalling $1,394,473 and superannuation assets of $125,919. They listed liabilities totalling $52,536. Accordingly, the identifiable net assets would be $1,477,856.
Both parties have made financial contributions and parenting contributions during the marriage and post separation. I accept the submission of counsel for the wife that at this stage the precise composition of the asset cannot be ascertained. For example the L Street, Suburb M property which the wife asserts that she holds as a G trustee, is not included nor is there any information before the Court as to the nature and extent of her interest in the JJ Family Trust.
I also accept the submission of counsel for the wife that there is a genuine contest as to the nature and extent of the husband’s financial and non-financial contributions throughout the marriage.
However, the parties’ were in relationship for 19 years, married for 15 of those years and have three children. It is clear that the wife brought into the marriage a substantial asset in the form of the unencumbered E Street, Suburb F property. The monies advanced by the maternal family were also a significant contribution on the part of the wife.
The wife maintained that she was the primary carer both before and after separation but the husband appeared to take issue with the extent of the wife’s care of the children and contribution as homemaker.
The husband contended that he made non-financial contributions by his assistance with the practical aspects of the parties’ acquisition of their real estate and business assets. The wife’s work her business appears to have been a significant focus during the marriage.
The husband’s claim for a partial property settlement in the sum of $300,000 represents approximately 20% of the known asset pool. He submits that he requires the monies to purchase a home for him and the boys rather than continue renting a property. It seems unlikely that he will be able to source finance while in receipt of Jobkeeper benefits but I do not that he discloses unpaid legal fees in his Financial Statement.
Due to the fact that the wife has control and the use of the vast majority of the pool, I consider that it is appropriate to exercise the power under s.79 of the Act.
In all the circumstances, I am satisfied that the husband is likely to receive a final property settlement at least equivalent to 20%. As previously stated, in reaching this conclusion I have regard to his contributions and the on-going care of the children. Taking a cautious approach I propose to make an order for lump sum partial settlement of $100,000.
A question then arises as to the source of such a sum of $100,000. As noted, the wife deposes to owning a share portfolio worth some $7,000, savings of around $26,000 but more significantly she has loan account in the N Trust[18] ($475,000) which would easily satisfy the liability. On the wife’s behalf, it was submitted that it cannot be assumed that this assets can be released without difficulty. In the past, however, distributions and monies for purchases have not seemed to create any difficulties.
[18] See paragraph 43 of her Financial Statement filed 13 October 2020
I will order that the wife pay to the husband a sum of $100,000 as an interim property distribution within 28 days.
I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of Judge Costigan
Date: 9 February 2021
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Jurisdiction
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Remedies
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Procedural Fairness
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