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 | of | 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…
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- AGLC
- Burns & Sellers (No. 2) [2017] FamCA 914
- Case
- [2017] FamCA 914
- Decision Date
CaseChat Overview and Summary
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
1.
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
2.
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
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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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