Boston and Limes

[2012] FamCA 142

FAMILY COURT OF AUSTRALIA

BOSTON & LIMES [2012] FamCA 142

FAMILY LAW - PROPERTY – Where Applicant Wife seeks the sale of certain shares and the lifting of a caveat on the former matrimonial home to permit a mortgage to fund repairs – Where no evidence of Wife’s capacity to borrow funds – Where Wife does not pursue her application for the lifting of the caveat

Family Law Rules 2004 (Cth)

APPLICANT: Ms Boston

RESPONDENT: Mr Limes

FILE NUMBER: BRC 2334 of 2007

DATE DELIVERED: 19 March 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 19 March 2012

REPRESENTATION

COUNSEL FOR THE RESPONDENT: Mr Read

SOLICITOR FOR THE RESPONDENT: Simonidis Steele

Orders by Consent

1. The Husband transfer to the Wife all of his right, title and interest in and to the jointly held shares in Telstra and in Suncorp.

1. The Wife be permitted to sell such shares and the proceeds obtained by the Wife will be characterised at the trial of the property proceedings.

Orders

1. Within fourteen (14) days, the Husband provide to the Wife duly executed transfers of the shares with respect to the subject shareholdings.

2. All interim applications be dismissed including the present application of the Wife and the application of the Husband that the matter proceed on an undefended basis.

3. The parties costs of and incidental to these interim applications be reserved to the trial.

4. The matter be adjourned to a hearing before a Registrar on a date to be fixed for the making of trial directions.

Certification

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage Counsel to attend for the Respondent.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2334 of 2007

Ms Boston

Applicant

And

Mr Limes

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter that has an unusually lengthy history in terms of the litigation that is before the Court. The parties commenced cohabitation either in 1988 (on the Husband’s case), or 1989 (on the Wife’s case), married in November 1992 and separated on a final basis as long ago as May 2005. A divorce was finalised in March 2008. There is one, now adult, child of the marriage who is currently 19 years of age.

2. The substantive property proceedings were commenced by the Husband as long ago as 22 July 2005 in the Federal Magistrates Court. Those proceedings were transferred to this Court on 23 June 2011.

3. Whilst each party raises issues about other assets, it would appear that the main asset in dispute is the real property situated at P Street, Suburb G, in which the Wife currently resides. The evidence establishes that the Husband placed a caveat over this property on 20 December 2006.

4. The interim application that came before me is said by the Wife to be necessitated by substantial repairs that are required to that house property, particularly as a result of storm damage sustained in November 2008. The unfortunate history of the matter includes some criminal proceedings that have now been resolved, and I was informed that an Order was made on 31 May 2011, obliging the Husband to pay to the Wife a sum of $7,500.00 by way of criminal compensation. I am informed from the bar table today that the first payment the Husband has made of $310.00 per month was made this week, although the Wife tells me she is yet to receive such payment.

5. In the result, the Wife sought that the caveat be removed for the purpose of enabling her to borrow money to effect repairs to the house. However, unfortunately, there is no clear evidence before me that any lender would advance to the Wife sufficient funds to enable the repairs to be undertaken. There are various quotations provided by the Wife in the evidence before me, but no clear evidence that a lender would advance the Wife sufficient money to effect those repairs.

6. In her current circumstances, the Wife is in receipt of a disability pension and no other income and on her most recently filed Financial Statement, has an excess of expenses over that income. For his part, the Husband has asserted likewise that the Husband has no substantial capacity and no property available to him. As a result of exchanges between the bench and the parties, the position has been reached that the Husband consents to an Order that the jointly held shares in both Telstra and Suncorp be transferred to the Wife; that is, that an Order be made by consent that the Husband transfer all his right, title and interest in and to those shareholdings to the Wife and I will make that Order.

7. In the end, the Wife did not pursue her application with respect to the lifting of the caveat and the borrowing of money for the reasons identified in the course of the exchanges between the bench and the parties during the hearing of the application and I incorporate those exchanges into these reasons without restating them.

8. It is clear enough that to support Orders for an interim property settlement, as this application by the Wife essentially was, there must be satisfaction that the Orders would be reversible in form; that is that the effect of the Orders would be reversible. This is a case where the Wife seeks in the final Orders that she ultimately receive the property at P Street, Suburb G, as to 100%, that is, a declaration that she be solely entitled to that property; whilst it is the Husband’s application by way of Final Orders that the property be sold and he receive some 40% of the net sale proceeds. That is not a matter that can be determined on an interim hearing. What needs to be considered on an interim hearing is whether the Orders sought by the Wife could be reversed in effect for the purposes of the Court determining just and equitable Orders on a final hearing.

9. As I say, in the final result, the Wife did not persist in that application. I otherwise dismiss all interim applications, including the Wife’s application discussed above and the Husband’s application that the proceedings proceed on an undefended basis, which in the event was not pursued.

10. I therefore make Orders as set out at the commencement of these reasons.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 March 2012.

Associate: 

Date:  21 March 2012