Beshara & Kassem
[2024] FedCFamC2F 649
•24 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beshara & Kassem [2024] FedCFamC2F 649
File number(s): PAC 6291 of 2023 Judgment of: JUDGE NEWBRUN Date of judgment: 24 May 2024 Catchwords: FAMILY LAW – PROPERTY – Interim hearing – partial property settlement – spousal maintenance – sale of property – orders made, inter alia, for partial property settlement and spousal maintenance. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Keymer & Keymer [2020] FamCAFC 70
Ruslan & Ruslan [2024] FedCFamC1F 50
MS & PS (2006) FLC 93-268
Stein & Stein [2000] FamCA 102
Division: Division 2 Family Law Number of paragraphs: 59 Date of hearing: 17 May 2024 Place: Parramatta Counsel for the Applicant: Mr Batey of counsel Solicitor for the Applicant: Hikma Legal Counsel for the Respondent: Mr Gardiner of counsel Solicitor for the Respondent: Koutzoumis Lawyers ORDERS
PAC 6291 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BESHARA
Applicant
AND: MR KASSEM
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
24 MAY 2024
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The proposed interlocutory orders 1 to 4 inclusive of the husband’s Response to Initiating Application filed 1 February 2024 are dismissed.
2.The Husband is restrained from disposing of, further encumbering or otherwise dealing with any real estate or matrimonial asset, however he shall be permitted to sell any of his motor vehicles provided that they are not sold at an undervalue.
3.Within fourteen (14) days from the date of these Orders the Husband pay a sum of $50,000 to the Wife by way of partial property settlement.
4.The Husband cause to be paid to the Wife, by way of spousal maintenance, the sum of $764 per week with the first payment to be made on the first Monday following the making of these Orders and each Monday thereafter.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This is the determination of various interim related financial proposed orders sought by each of the husband and the wife.
The wife’s proposed interim financial orders are set out in her Case Outline filed 16 May 2024 (Part E) as follows:
1.That interlocutory orders 1 to 4 inclusive of the Husband’s Response to Initiating Application filed 1 February 2024 are dismissed.
2.That pending final orders, the Husband is restrained from disposing of, further encumbering or otherwise dealing with any real estate or matrimonial asset.
3.That within fourteen (14) days from the date of these Orders the Husband pay a sum of $50,000 to the Wife by way of partial property settlement.
4.That pending final orders, the Husband cause to be paid to the Wife by way of spousal maintenance, the sum of $1,212 per week with the first payment to be made on the first Monday following the making of these Orders and each Monday thereafter.
5.That the Husband pay the Wife’s costs of and incidental to this Interim Hearing.
The wife’s above proposed orders were opposed by the husband except that he consented to an order that the wife, by way of partial property settlement, receive half of a cash sum of $53,463 (i.e. about $26,731) presently held by the husband, he having recently sold Motor Vehicle 1.
The husband’s proposed interim financial orders are set out in his Response filed 1 February 2024 as follows:
1.That within 14 days from the date of these Orders, the Applicant and the Respondent do all acts and sign all necessary documents to cause the property situated at [B Street, Suburb C] in the State of New South Wales ("the former matrimonial home") to be listed for sale by private treaty with such Real Estate agent as is agreed between the parties.
2.That in the event that the parties are unable to reach agreement within 14 days from the date of these Orders as to the identification of a Real Estate Agent and Conveyancer/Solicitor to act on the sale of the former matrimonial home, the Husband shall provide the Wife with a list of three suitably qualified Real Estate Agents and Conveyancers/Solicitors and the Wife shall select one Real Estate Agent and Conveyancer/Solicitor from the list within 3 days thereafter, failing which the Husband shall be at liberty to select a Real Estate Agent and Conveyancer/Solicitor from the list provided to act on the sale on the sale of the former matrimonial home.
3.That upon the sale of the former matrimonial home the parties shall do all acts and things and provide necessary to cause the proceeds of sale to be distributed in the following manner:
3.1The payment necessary to meet the necessary selling and legal costs associated with the sale;
3.2The payment of such sum as is required to discharge the mortgage secured over the former matrimonial home;
3.3The payment to the Applicant in sum of $150,000, or as she may direct in writing by way of interim property distribution;
3.4The payment to the Respondent in sum of $100,000, or as he may direct in writing, by way of interim property distribution; and
3.5The balance to be held in the trust account of the Koutzoumis Lawyers pending further Order or written agreement between the parties.
4. That the application for spouse maintenance be dismissed.
The wife relies upon the documents set out on page 1 of her Case Outline filed 16 May 2024 and that Case Outline.
The husband relies upon the documents set out on page 1 of his Case Outline filed 15 May 2024 and that Case Outline. He also relied upon certain pages from Exhibit K-2 to his affidavit to which his counsel took the Court in oral submissions.
Two documents became exhibits:
(a)Exhibit A: Notice of Assessment for FY22 and FY23;
(b)Exhibit B: Letter from Hikma Legal dated Wednesday 1 May 2024.
CONSIDERATION
Wife’s interim application for partial property settlement of $50,000 to pay legal fees
As to relevant legal principle relating to the determination of applications for partial property settlement the Court refers to the principles summarised by McClelland DCJ in Ruslan & Ruslan [2024] FedCFamC1F 50 at [29]:
(1)The exercise of discretion: ss 79 and 80(1)(h) of the Family Law Act 1975 (Cth) (“the Act”) confer power on the Court to make orders for a partial distribution of property prior to the final hearing. That is:
(a)Section 79 confers a discrete power to make orders for property settlement and the Court may exercise that power through “a succession of orders until the power ... is exhausted” or until a final order dealing with all the known property of the parties is made: Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”) at [110], quoting Gabel & Yardley (2008) FLC 93-386 at [57].
(b)Section 80 is not, in itself, a source of jurisdiction for such an order to be made. Rather, the section is an “enabling provision” that provides various ways in which the general power in s 79 of the Act may be exercised in individual cases: Davidson and Davidson (No 2) (1994) FLC 92-469 at 80,875 and Yunghanns & Yunghanns (1999) FLC 92-836 at [118]. This includes, by s 80(1)(h), the making of “a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order”.
(2)There are three stages to the hearing of an application for interim property adjustment orders:
(i)The first two stages were described in Strahan at 85,645–85,646, with the first being a “procedural step” which requires an analysis of whether the circumstances of the case triggers the Court’s power to invoke s 80(1)(h) of the Act to make an order for partial property adjustment. At this stage, the “overarching consideration” is the interests of justice: Strahan at [132].
(ii)The second stage is the “substantive step”, where the provisions of s 79 must be considered and applied, but with limitations, given that it is not the final hearing.
(iii)The third stage, although not necessarily to be considered in this order, is to assess whether the applicant for relief has discharged the persuasive burden referred to in Medlow & Medlow (2016) FLC 93-692 (“Medlow”) at [86], of establishing that there are sufficient assets available to satisfy the order sought without prejudicing the other party (“the Medlow onus”). In that respect, the Full Court said:
The onus was clearly upon [the applicant for relief] to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat [the respondent’s] property claim. The onus was not on the [respondent] to adduce such evidence.
(iv)Moreover, the evidence required to discharge the Medlow onus is such that the Court should be “comfortably satisfied” of the sufficiency of assets to ensure that the applicant would receive, at final hearing, no less than the amount sought by way of interim property distribution: Widmann & Widmann [2016] FamCA 1164 at [14] and see Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216 at [72].
(3)Even if there is sufficiency of evidence to discharge the Medlow onus, that is not the end of the matter. An applicant seeking orders for partial property distribution is required to show more “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”: Strahan at [139].
(4)The overriding consideration at all stages of the process is that the Court is satisfied that it is “just and equitable” to make the order in the circumstances: Stanford & Stanford (2012) 247 CLR 108 at [35] (“Stanford”). The determination of that issue should not be approached on the basis of an assumption “that one or other party has the right to have the property of the parties divided between them”: Medlow at [72], quoting Stanford at [40]. This applies to an application for an order for a partial distribution of property in interim proceedings as much as it does to an application for the adjustment of property at the final hearing of the matter.
(5)In applying these considerations, the exercise of the Court’s jurisdiction should be conducted with an appreciation that “as a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings”: Strahan at [177], quoting Harris and Harris (1993) FLC 92-378 at 79,929–79,930.
(6)Additionally, subsequent to the introduction of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) in September 2021, the Court, the parties and their legal advisers are required to have regard to the “overarching purpose” set out in s 67 of the FCFCOA Act, which includes the public interest of ensuring that disputes are resolved “as quickly, inexpensively and efficiently as possible”. In respect to comparable provisions set out in ss 56 and 60 of the Civil Procedure Act 2005 (NSW), it has been determined that it will usually be the case those principles are best served by one rather than a multiplicity of hearings: Cook by her tutor Kristy Stewart v Riding for the Disabled Association (NSW) Raymond Terrace and Lower Hunter Centre [2023] NSWSC 1503 at [19].
(7)As a related issue, the manner in which the party seeking a partial property distribution has conducted the proceedings will also be relevant. Most relevantly, that includes the extent to which the party and or their legal advisers have complied with their obligations pursuant to ss 67 and 68 of the FCFCOA Act to promote the overarching purpose by keeping costs to a reasonable and proportionate amount. To do otherwise, simply provides additional resources to the party to engage in ongoing “lawfare” at a likely disproportionate cost to the parties and to taxpayers.
(8)The party seeking the relief carries the persuasive burden of satisfying the Court that the circumstances of the case are such that the Court should exercise its discretion in their favour. In that respect, as noted by Thackray J in Strahan at [223]:
… it is important to note that s 80(1) [or s 90SS(1)] is couched in the permissive. Hence, although the Court must give consideration to the matters set out in s 79(4) [or s 90SM] when hearing an application for an interim payment, it has no obligation to make an interim order. The Court “may” do so if it considers that it should in the exercise of its discretion.
(9)Circumstances in which the Court has made an order for partial property distribution include, but are not necessarily limited to, where one of the parties has a monopoly in terms of access to the finances and resources of the parties such that they have a significant advantage in the litigation and, conversely, the other party is significantly disadvantaged: see, eg, Strahan at [80] and Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [60].
(10)It is unlikely that the Court would grant such relief in circumstances where to do so would “potentially defeat any party’s claim or legitimate expectations in a final hearing”: Aitken & Murphy (No 2) [2012] FamCA 239 at [158].
…
(12)Finally, among the matters that the Court may take into consideration in the exercise of its discretion is the proximity of the final hearing dates and the complexity of the issues involved in determining the likely ability of the Court to, if necessary, ‘claw back’ the funds released by way of interim property settlement: Pinta & Pinta [2022] FedCFamC2F 34 at [115].
The wife sought an order for partial property settlement in the sum of $50,000 to enable her to pay anticipated legal fees in these property related proceedings. By reference to the wife’s solicitor’s costs notice dated 15 May 2024 and filed that date, anticipated legal fees of $50,000 would appear reasonable. In passing, the Court observes that the husband’s solicitor’s costs notice of the same date refers to future costs for the final hearing alone estimated to be about $70,000 plus GST.
Again, the husband was prepared to consent to an interim order, by way of partial property settlement, that the wife receive about $26,731, representing a one-half share of the sale proceeds of the husband’s recently sold Motor Vehicle 1.
The wife submitted, inter alia, that she has no available assets to enable her to meet her anticipated legal fees in the sum of $50,000; she only has her car, household contents and superannuation, and interest in the former matrimonial home in which she and the parties’ child, a girl, X, born in 2021, live.
The wife submitted that there should be a level playing field in litigation between the two parties, and that the husband is in control of most of the assets in the property pool (in this context, the Court refers to the agreed joint balance sheet of the parties dated and filed 13 May 2024 in relation to which reference was made during submissions by each party; at the interim hearing the parties acknowledged two amendments to that balance sheet: item 6 details were deleted and in its place a cash figure of $53,463 was inserted as the husband’s Motor Vehicle 1 had been sold, and item 24, the related car finance debt, was deleted). There is force to these submissions.
The husband will need funds for his anticipated legal fees. Should the wife receive $50,000 sourced from the cash proceeds of sale of the husband’s recently sold Motor Vehicle 1 ($53,453), leaving a balance from those cash funds of only $3,463, the question arises from what other source will the husband himself be able to pay his anticipated legal fees.
On the evidence before the Court, the husband probably has available to him a sum of $450,000, representing proceeds of sale from a Suburb D property that he sold in early 2022, or at least a significant part of that sum of $450,000, such as to enable him to pay his anticipated legal fees.
The husband asserts that there is a capital gains tax liability in relation to this previously owned Suburb D property which remains unpaid in the sum of $127,326. This asserted liability is not referred to in the parties’ joint balance sheet. In any event, assuming that such asserted liability is presently owing, $450,000 less $127,326 leaves $322,674.
The husband asserts in his affidavit filed 3 May 2024 that his current assets include the above sum of $450,000. In the joint balance sheet this sum of $450,000 appears as an acknowledged addback by the husband. In his Financial Statement filed 3 May 2024 he refers to this sum of $450,000 as a financial resource.
The husband asserts in his above affidavit (at paragraph 42) that this sum of $450,000 was loaned to his sister and brother-in-law to carry out renovations. (The wife asserts that this sum was withdrawn from the husband’s personal NAB bank account on about late 2022). He states that the amount loaned will be repaid when they are financially able to do so. In paragraph 58 of his affidavit he asserts:
58.At the present time, my sister [Ms E] is unable to repay the loaned amount by me. With the current economical conditions, and her family (4 dependent children), her home mortgage, the current inability of the husband to provide income due to the loss of business.
The husband, in paragraph 59(b) of his affidavit, confirms that he had loaned monies to his sister previously (not referring to his brother-in-law).
There is no affidavit from the husband’s above sister relating to the loan. The husband’s assertion in paragraph 58 above is a mere opinion by him. It is not hearsay evidence. Even if it was to be regarded as hearsay evidence which might potentially be admissible at this interim hearing under s 75 of the Evidence Act 1995 (Cth), the husband has not adduced evidence of its source; for example, the husband does not state that his sister, or perhaps some other relevant person such as his brother-in-law, told him that at the present time the loaned amount was unable to be repaid. And further, and in any event, the husband merely opines that, “at the present time”, the loan of $450,000 cannot be repaid, without additionally asserting, for example, that repayment could not occur in the near future.
Further, the husband presently owns five cars, which are referred to in the joint balance sheet at items 4, 5, 7, 8, and 9, any one of which he could sell to assist in paying anticipated legal fees. Again, he recently sold Motor Vehicle 1. The cars in items 4, 5, 7, 8 have a combined value of about $407,350. The car in item 9 has been placed for sale by the husband for a selling price of $140,000. The car in item 5, has also been placed for sale by the husband.
The husband’s s 79 property settlement proposal will not be prejudiced by making the wife’s proposed order in the sum of $50,000. As submitted by the wife, even assuming the wife only received 25 per cent of the net property pool based upon the husband’s proposed orders in his Initiating Application filed 1 February 2024, and taking the husband’s contended balance sheet figure of $3,165,338 (noting the above agreed adjustments to the balance sheet), 25 per cent of that sum leaves the wife with $791,334.
In the view of the Court it will be in the interests of justice, and just and equitable, to make the wife’s proposed interim property settlement order in the sum of $50,000 to enable her to pay anticipated legal fees.
Wife’s interim spousal maintenance application
The wife seeks $1,212 per week by way of interim spousal maintenance. This is opposed by the husband.
The relevant statutory provisions are as set out in section 72 and 74 of the Family Law Act 1975 (Cth) (“the Act”).
Section 72(1) provides that:
(1)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;
having regard to any relevant matter referred to in subsection 75(2).
Section 74(1) provides:
(1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
The approach to be taken in considering an application for spousal maintenance was set out in Ms & PS (2006) FLC 93-268 per Coleman J:
(1)Can the applicant support themselves adequately?
(2)If not, what are the applicant’s reasonable needs?
(3)What capacity does the respondent have to meet those needs?
(4)What order is reasonable, having regard to s 75(2) of the Act?
When assessing the needs of the applicant, expenses relating to the applicant and to the child should not be conflated: see, e.g. Keymer & Keymer [2020] FamCAFC 70; Stein & Stein [2000] FamCA 102.
Under s 72(1) of the Act, is the wife unable to support herself adequately by reason, inter alia, of having the care and control of the child of the marriage who is not attained the age of 18 years, having regard to any relevant matter referred to in subsection 75(2)? The Court would answer this question in the affirmative for the following reasons.
The wife has the care of the parties’ child aged three years. The wife asserts that she has been the child’s primary carer since birth to date. The wife asserts that in early 2023 she recommenced working as an administrative officer, earning an amount of $14,560 per annum. She works eight hours per week “as [she has] full-time care of [X]”. She states that since separation the child has continued to live with her in the matrimonial home and she has remained her primary caretaker. The wife asserts that the child attends the local daycare three times per week since early 2023. In her Financial Statement filed 23 April 2024, she asserts that her average weekly childminding fees are $83. In this context, under s 75(2) the Court takes into account subsection (c), “whether either party has the care or control of the child of the marriage who is not attained the age of 18 years”, and subsection (l), “the need to protect a party who wishes to continue that party’s role as a parent.”
The husband submitted that the wife has a clear unexercised income earning capacity well beyond her current part-time working hours of eight hours per week. In this context, the husband refers to, inter alia, the wife’s previous tertiary qualifications. This submission is not accepted, by reference to the immediate paragraph above which refers to the wife’s primary care of the child. The evidence before the Court, contrary to the submission of the husband, is not that the child attends day care three days each week; rather the wife asserts that the child attends daycare three times each week, for an unspecified amount of time. Since the wife’s graduation, she has worked in her brother’s business working eight hours per week, again, because the wife has the primary care of the child.
By reference to the wife’s Financial Statement filed 23 April 2024 she has total average weekly income of $280, after deducting government benefits and child support (total $758).
By reference to the wife’s Financial Statement she has weekly total personal expenditure of $1,044 ($31 super, $88 insurance premiums, $925 average weekly expenses for the wife – see Part O). She has minimal assets in her name being a modest cash balance and car.
Accordingly, the wife’s above weekly expenditure exceeds her income by $764. The Court would assess that the wife has a reasonable need for maintenance in the sum of $764 per week.
Under section 72 of the Act, on an interim basis, is the husband reasonably able to maintain the wife in the sum of $764 per week?
The husband submits that he is not reasonably able to so maintain the wife. He refers to, inter alia, the financial figures in his Financial Statement filed 3 May 2024; his total average weekly income of $1,877 against his weekly total personal expenditure of $4,068.
In this context, the wife submits, inter alia:
(a)The husband has the above discussed sum of $450,000 available to him to satisfy an order for spousal maintenance, or he has available to him a significant part of such sum.
There is force to these submissions having regard to the Court’s discussions above relating to this sum of $450,000.
(b)The husband has five cars which could be easily sold to satisfy an order for spousal maintenance. Retaining one car for his personal use, the husband would have four cars to sell. He has recently sold Motor Vehicle 1 for about $53,000.
There is force to these submissions having regard to the Court’s discussions above relating to the sale of one or more of the husband’s cars.
(c)Whereas the husband for the financial years 2022 and 2023 was earning a taxable income of $302,563 per annum ($3,560 per week after deducting income tax and Medicare levy) and $163,071 ($2,231 per week after deducting income tax and Medicare levy) respectively, the husband was stated to be now earning only $97,604 per annum ($1,877). She submitted, inter alia, that the husband’s income earning capacity was much greater than $97,604; in the view of the Court there is force to this submission.
The husband is presently working reduced hours between Monday to Friday by reason of asserted stress levels, and his asserted need to provide care for the child (see the letter below from his employer dated early 2023).
In this context, the letter from the husband’s employer dated early 2023 to the husband refers to the husband’s normal working hours during Monday to Saturday being reduced to 4.5 hours a day, with remuneration being reduced to an annual salary package of $190,000 inclusive of superannuation, with the employer referring, inter alia, to the husband’s personal circumstances, stress that he is currently enduring, and current difficulties.
The Court observes that the husband’s full-time (non-award) employment contract with the employer made in early 2022 referred to the husband’s hours of work as being Monday to Friday, 7.00 am to 5.00 pm, and Saturday as required by management.
The letter from the husband’s employer dated early 2023 to the husband states, inter alia:
We have reviewed your package in line with your personal circumstances and commitment to [the company], with changes as follows:
•Work services are reduced between Monday to Friday, with services on a required basis to provide flexibility to you due to stress levels, and in the scenario, you need to provide care for your child as a single parent.
…
•To allow you to provide care to your child, Saturdays will not be included in your work services and [the company] will endeavour to not disturb if deemed unnecessary.
•Remuneration to be reduced to an annual salary package of $100,000 inclusive of superannuation.
However, as submitted by the wife, the husband only spends time with the child every second weekend, from 9.30 am Saturday until 3.00 pm on Sunday; he is not caring for the child each day of the working week which would impact on his ability to work eight hours per day during the working week.
The husband asserts, inter alia, that the breakdown of the marriage has, inter alia, impacted his ability to focus on work significantly. He asserts that this has resulted in the loss of his companies’ contracts and has heavily impacted his income. He asserts that the settlement process has affected him and that currently he refers to the stress and emotions of not being able to see the child on a daily basis.
However, the Court observes that the husband has adduced no health professional evidence relating to his asserted stress and inability to focus on work significantly. At the outset of his affidavit (paragraph 4) he asserts that he is in good health.
The Court would assess that the husband’s earning capacity is probably greater than $1,877 per week ($97,604 per annum); he would appear able to work an eight hour day Monday to Friday, and potentially double his present employment income, as opposed to only working 4.5 hours per day (or providing services “on a required basis” (see his employer’s letter dated early 2023 to himself), and thereby earn a significantly greater income. The Court observes that the husband’s latest pay slip from his employer dated early 2024 reveals 97.50 hours of work over [early 2024], equating to about 23 hours work per week.
The Court observes that at no point in the husband’s employer’s letters dated early 2023 does the employer state that it is unable to offer the father increased work hours, compared to the reduced work hours afforded the husband by the employer in those letters, should the husband’s personal circumstances, as asserted by him to his employer, change.
(d)The husband agreed to an interim order by consent in this Court on 26 February 2024 that he “be responsible for paying as and when the same fall due, all mortgage repayments in respect of the matrimonial home”.
It was submitted by the wife that this consent order was inconsistent with the husband’s present contention that he presently has no financial capacity to make the mortgage repayment to F Bank in relation to the former matrimonial home. There is force to this submission and the contents of the consent order speak for themselves. In this context, the Court would observe that the husband does not appear to assert any relevant factual matter that has arisen since the consent order was made by the Court on 26 February 2024.
Should the Court make an interim spousal maintenance order in favour of the wife, the Court would observe that the parties’ property proceedings are likely to be heard on a final basis by the Court at some time within the first half of 2025 here at the Parramatta Registry; this estimate affords a picture of how long such an interim order may be in operation.
In light of the above discussions, it will be reasonable and proper for the court to make an interim order that the husband pay to the wife the sum of $764 per week by way of spousal maintenance.
Husband’s interim application for the former matrimonial home to be sold with the net proceeds of sale, by way of partial property settlement, being paid in the sum of $150,000 to the wife and $100,000 to the husband
The husband asserts, inter alia, that neither party can afford to maintain their contractual obligation to the F Bank; the parties have a mortgage loan outstanding with that bank in relation to the former matrimonial home in the sum of about $839,752. He asserts that his current income is not sufficient to meet his financial obligations, including to F Bank.
The husband does not oppose the wife continuing to have sole occupation of the former matrimonial home pending the sale of the property in the event that the Court makes his proposed orders for, inter alia, sale of the property.
However, the wife opposes an order that the former matrimonial home be now sold. Again, she resides there with the child and, in her affidavit, asserts that, on a final basis, she hopes to be able to retain the matrimonial home unencumbered “as it is a stable home for (the child) and I, and it will mean that I can afford to provide her with a basic standard of living.”
The wife submitted, inter alia, as follows:
(a)The husband, if he indeed cannot presently meet his financial obligations, which is not admitted by the wife, could just as well seek to sell the Suburb G property in which he now lives, and thereby obtain some financial relief, yet he adduces no evidence as to why this should not occur. There is force to this submission. If the Suburb G property were sold, the wife and child could remain living in the former matrimonial home at least pending final hearing.
(b)The husband has access to the above discussed $450,000, or a significant part of it, which could significantly assist him in obtaining financial relief. There is force to this submission and the Court refers to its discussions above.
(c)The husband has a stable of cars which he could sell (in whole or in part) and which could also significantly assist him in obtaining financial relief. (At the interim hearing the wife informed the Court that she consents to the sale of the cars provided they were not sold at an undervalue). There is force to this submission and the Court refers to its discussions above.
(d)The husband has a capacity to earn significantly greater employment income. There is force to this submission and the court refers to its discussions above.
(e)The husband’s asserted weekly expenses of $4,068 could probably be, again, significantly reduced by reference to the matters in (a) – (c) above. Further, that total sum of $4,068 should be revised down because the husband has sold Motor Vehicle 1 (item 6 in the joint balance sheet); so that $11 for registration fees can be deducted, as well as the H Company loan repayment of $350.
(f)Though the wife’s desire is to retain the matrimonial home unencumbered, it would be open to the Court at final hearing, inter alia, to order that she retain the home with some associated mortgage debt. There is force to this submission, and the Court refers to its discussions below relating to s 79 final property adjustment outcomes.
(g)The husband had agreed to an interim consent order made by the Court on 26 February 2024 that he be responsible for paying as and when the same fall due, all mortgage repayments in respect of the matrimonial home. There is force to this submission and the Court refers to its discussions above relating to this consent order.
The husband submitted that the former matrimonial home should be now sold, and thereafter an interim property settlement be effected between the parties, inter alia, because it was most unlikely that the wife’s s 79 property adjustment claim would result in her being able to retain the former matrimonial home unencumbered.
Turning to the parties’ respective relevant s 79 contributions during their relationship, the Court observes that the parties commenced cohabitation in 2017 when they married. They separated in about late 2022.
Initial contributions appear to favour the husband. His cash and three cars totalled about $408,000, his equity in the Suburb G property about $135,000, superannuation about $73,000, less debt $17,593. The wife brought in her superannuation of $64,000 and a debt owing to her of $70,000, savings of $1,514.
The child was born in 2021. The mother was the child’s primary carer during the relationship. She worked in employment during the relationship and contributed towards the parties’ living expenses, as did the husband, with the husband’s income being significantly higher.
The wife’s homemaker contributions were probably significantly greater than the husband’s in this regard because she spent significantly more time in the family home being the child’s primary carer.
As to the former matrimonial home, the wife made discrete direct financial contributions towards stamp duty and payment of part of the deposit (about $82,500), and the husband facilitated a $50,000 deposit bond through the Suburb G property and used that property to enable refinancing in relation to the purchase.
The husband was the primary income earner during the parties’ relationship. There were periods when the wife worked in employment. It appears both parties utilised their earnings towards the benefit of the family.
The wife, through her above contributions, would appear to have indirectly contributed towards the maintenance and growth of the husband’s assets as well as the jointly owned former matrimonial home. Both parties would appear to have indirectly contributed towards the increase in each party’s respective superannuation through their respective marital efforts.
Post separation to date, the wife has been the child’s predominant sole carer, a period of about 1.5 years. That contribution has probably indirectly contributed towards the husband’s ability to earn significant income, make mortgage repayments on the Suburb G property and the former matrimonial home, including motor vehicle finance debt repayments.
The wife has resided with the child in the former matrimonial home post separation to date. The husband met the mortgage loan repayments (apart from a pause in repayments due to financial hardship).
As to the parties’ needs, the wife is aged 39 years, with tertiary qualifications and some administrative work experience, and she presently wishes to continue her role as carer for the child. The child is only three years old. The husband is spending one night a fortnight with the child. She is presently working only eight hours a week. The husband has worked in his position and the Court would assess that his earning capacity is probably significantly greater than the wife’s earning capacity. The wife may well receive a significant adjustment for future needs.
Evaluating the parties’ s 79 entitlements, including future needs, looking at the matter broadly for the purpose of this interim hearing (and being a truncated hearing with no cross‑examination), there is a real possibility that the wife may achieve a property adjustment order in the range of 45 to 50 per cent of the net property pool.
50 per cent of the husband’s balance sheet contention for the total property pool (as agreed to be amended by the parties), $3,165,338, is some $1,582,669.
Should the wife retain the current assets in her name, and retain the former matrimonial home with its associated mortgage debt, about net $1,035,131, on the assumption that she receives 50 per cent of the husband’s contended net property pool, referred to above, $1,582,669, she will need to receive from the husband (assuming he retains the assets now in his name) about $547,538. Such latter sum when deducted from the above associated mortgage debt leaves a significantly reduced mortgage debt of about $292,214. The wife has some work capacity, albeit that she has chosen post-separation to predominantly care for the child. Accordingly, it cannot reasonably be said that the wife’s prospects of retaining the former matrimonial home are most unlikely.
In light of the above discussions, it would not be in the interests of justice, nor would it be just and equitable, that the former matrimonial home be now sold as proposed by the husband. Pending final hearing the wife shall continue to reside in that home with the child pursuant to the Court’s previous consent Order of 26 February 2024 (Order 3(a)).
The Court will make orders accordingly.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 24 May 2024
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