Burns & Sellers (No. 2) - [2017] FamCA 914

FAMILY COURT OF AUSTRALIA

BURNS & SELLERS (NO. 2)

[2017] FamCA 914

FAMILY LAW – SPOUSE MAINTENACE – INTERIM – Where consideration of applicable principles – Where the wife is unable to adequately support herself – Whether the husband has capacity to pay spousal maintenance – Where it is determined the husband has capacity to pay to the wife interim spousal maintenance – Where order made pending further order.

FAMILY LAW – PROPERTY – INTERIM – Where an order for interim property settlement is sought by the wife – Whether it is appropriate to exercise court’s power on an interim basis – Where the husband contends it is inappropriate to make order – The whole of the current assets of the parties are in the husband’s control – Where contributions significantly favour the husband – Where it is found that it is appropriate and otherwise in the interests of justice to make interim property settlement in favour of wife.

Family Law Act 1975 (Cth) ss 72, 74, 75(2), 79, 80, 117

Bevan & Bevan (1995) FLC 92-600
Harris & Harris (1993) FLC 92-378
Oates and Crest (2008) FLC 93-365
Redman and Redman [1987] FamCA 2; (1987) FLC 91-805
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Ms Burns

RESPONDENT:

Mr Sellers

FILE NUMBER:

PAC

5854

2016

DATE DELIVERED:

14 November 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 31 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Cummings SC

SOLICITOR FOR THE RESPONDENT:

McAuley Hawach Lawyers

Orders

Interim Spouse Maintenance

That the husband pay to a bank account, nominated by the wife in writing within two days from the date of these orders, the sum of $3,250.00 per week by way of interim spousal maintenance pending further order with the first payment within seven days from the date of these orders.

Interim property adjustment

That the husband pay to the wife the sum of $150,000.00 by way of interim property adjustment with payments as follows:
(a)As to the sum of $50,000.00 within 14 days from the date of these orders;
(b)As to the further sum of $100,000.00 within two months from the date of these orders;
(c)Such payments to be made to a bank account, nominated by the wife in writing within two days from the date of these orders.

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 Burns & Sellers (No. 2) 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…

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.

Continue reading Burns & Sellers (No. 2)

Details

AGLC: Burns & Sellers (No. 2) [2017] FamCA 914
Case: [2017] FamCA 914
Decision Date: 14 November 2017

CaseChat Overview and Summary

In *Burns & Sellers (No. 2)*, Foster J considered applications by the wife for interim spousal maintenance and interim property settlement against the husband. The wife contended she was unable to adequately support herself, while the husband disputed his capacity to pay spousal maintenance and argued against an interim property settlement order.

The court was required to determine whether the husband had the capacity to pay interim spousal maintenance and whether it was appropriate to make an order for interim property settlement in favour of the wife. The husband controlled all of the parties' current assets, and his contributions were found to significantly favour him.

Foster J reasoned that the husband had the capacity to pay interim spousal maintenance, finding it appropriate to make such an order pending further determination. Similarly, the court found it appropriate and in the interests of justice to make an order for interim property settlement in favour of the wife, given the husband's control over all assets and the disparity in contributions.

The court ordered the husband to pay the wife $3,250.00 per week by way of interim spousal maintenance, with the first payment due within seven days. Additionally, the husband was ordered to pay the wife $150,000.00 by way of interim property adjustment, with $50,000.00 payable within 14 days and the remaining $100,000.00 payable within two months.

Orders

Orders of the court

Interim Spouse Maintenance

That the husband pay to a bank account, nominated by the wife in writing within two days from the date of these orders, the sum of $3,250.00 per week by way of interim spousal maintenance pending further order with the first payment within seven days from the date of these orders.

Interim property adjustment

That the husband pay to the wife the sum of $150,000.00 by way of interim property adjustment with payments as follows:

(a) As to the sum of $50,000.00 within 14 days from the date of these orders;

(b) As to the further sum of $100,000.00 within two months from the date of these orders;

(c) Such payments to be made to a bank account, nominated by the wife in writing within two days from the date of these orders.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.