BOWERS & CAMANO - [2018] FCCA 4042

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOWERS & CAMANO

[2018] FCCA 4042

Catchwords:
FAMILY LAW – Property – interim or urgent spousal maintenance – where Husband seeks sum of $25,000 – where Husband seeks sum be derived fro redraw of funds on mortgage of former matrimonial home, the Wife borrowing it or the Wife transferring a motor vehicle to the Husband so that it may be sold – where Husband operates small business which produces little or no net profit – where Wife proposes interim property adjustment Orders – where both parties seek 70 per cent of total property pool on a final basis – significant factual disputes between the parties - whether the Applicant is unable to support himself –whether the respondent has capacity to pay spousal support – where Court determines the Husband to be in immediate need of financial assistance.

Legislation:

Judiciary Act 1903 (Cth)

Family Law Act 1975 (Cth): part VIII, ss.72, 75, 77, 79; 81. 114

Cases cited:

Elei & Dodt [2018] FamCAFC 92

Kowaliw & Kowaliw (1981) FLC 91-092

Strahan & Strahan [2006] FamCA 1361

Applicant:

MR BOWERS

Respondent:

MS CAMANO

File Number:

ADC 2928 of 2018

Judgment of:

Judge Harman

Hearing date:

27 September 2018

Date of Last Submission:

27 September 2018

Delivered at:

Adelaide

Delivered on:

27 September 2018

REPRESENTATION

Counsel for the Applicant:

Ms Lewis

Solicitors for the Applicant:

D'Angelo Kavanagh

Counsel for the Respondent:

Ms Dickson

Solicitors for the Respondent:

Tindall Gask Bentley

ORDERS

Each of the parties shall and forthwith and by close of business 4 October 2018 make joint application to Bank B to seek to redraw from their mortgage account (being the mortgage encumbering the property C Street, Suburb D) a sum of $40,000 and each party shall, if able to do so, then forthwith do all things sign all documents and give all consents, authorities and instructions as may be necessary to cause the sum of $20,000 to be paid to each party, such funds to be paid by way of interim property adjustment pursuant to the Family Law Act 1975.
In the event that the parties are not able to redraw against the above mortgage then:
(a)The Wife shall, by close of business 12 October 2018, pay to the Husband by way of interim property adjustment order the sum of $20,000; and
(b)In the event that the Wife shall fail, neglect or refuse to pay that sum within that time (and time shall be of the essence) then the Wife shall forthwith do all things necessary to list for sale one of the two motor vehicles in her possession (it being the Wife’s election which vehicle is sold) and to cause the sum of $20,000 or the net proceeds of sale then resulting (noting that after discharge of any finance arrangement encumbering the vehicle the nett proceeds of sale may be less than $20,000) to be paid to the Husband by way of interim property adjustment.
Remove from the list of cases awaiting hearing the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BOWERS & CAMANO [2018] FCCA 4042
Case: [2018] FCCA 4042
Decision Date: 27 September 2018

CaseChat Overview and Summary

In the matter of *Bowers & Camano*, Judge Harman of the Federal Circuit Court of Australia made orders concerning interim property adjustments between the parties. The dispute involved the division of assets pending final determination of their property settlement.

The court was required to determine how an interim property adjustment of $40,000 should be facilitated between the parties. This involved considering the possibility of redrawing funds from a joint mortgage and, in the alternative, requiring one party to make a direct payment or sell an asset to satisfy the adjustment.

The court ordered that the parties jointly apply to their bank to redraw $40,000 from their mortgage account, with $20,000 to be paid to each party. If this was not possible, the Wife was ordered to pay $20,000 to the Husband by a specified date. Should the Wife fail to make this payment, she was to list one of her motor vehicles for sale and pay the net proceeds, up to $20,000, to the Husband. The court also ordered that interim applications be removed from the list of cases awaiting hearing.

Orders

Orders of the court

Each of the parties shall and forthwith and by close of business 4 October 2018 make joint application to Bank B to seek to redraw from their mortgage account (being the mortgage encumbering the property C Street, Suburb D) a sum of $40,000 and each party shall, if able to do so, then forthwith do all things sign all documents and give all consents, authorities and instructions as may be necessary to cause the sum of $20,000 to be paid to each party, such funds to be paid by way of interim property adjustment pursuant to the Family Law Act 1975.

In the event that the parties are not able to redraw against the above mortgage then:

(a) The Wife shall, by close of business 12 October 2018, pay to the Husband by way of interim property adjustment order the sum of $20,000; and

(b) In the event that the Wife shall fail, neglect or refuse to pay that sum within that time (and time shall be of the essence) then the Wife shall forthwith do all things necessary to list for sale one of the two motor vehicles in her possession (it being the Wife’s election which vehicle is sold) and to cause the sum of $20,000 or the net proceeds of sale then resulting (noting that after discharge of any finance arrangement encumbering the vehicle the nett proceeds of sale may be less than $20,000) to be paid to the Husband by way of interim property adjustment.

Remove from the list of cases awaiting hearing the Interim Applications contained respectively in the Initiating Application 23 July 2018 and Response 20 September 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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