Byron and Byron

[2012] FamCA 491

FAMILY COURT OF AUSTRALIA

BYRON & BYRON [2012] FamCA 491

FAMILY LAW – PROPERTY – Lump sum payments for interim spouse maintenance – application refused

Family Law Act 1975 (Cth)

APPLICANT: Ms Byron

RESPONDENT: Mr Byron

FILE NUMBER: SYC 4251 of 2011

DATE DELIVERED: 27 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 12 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livingstone

SOLICITOR FOR THE APPLICANT: Beilby Poulden Costello

COUNSEL FOR THE RESPONDENT: Mr Gersbach

SOLICITOR FOR THE RESPONDENT: Linda Emery & Associates

Orders

1. That within 14 days of the date of these Orders, the husband and the wife do all acts and things and execute all documents necessary to list for sale with B Real Estate (“the agent”) the property situate at and known as … C Street, Town D, being the whole of the land comprised in Folio Identifier … (“the property”).

2. That for the purpose of Order 1 the parties are to instruct the agent to sell the property by way of “Expressions of Interest or tender” for a period of three months and, thereafter, if the property remains unsold, that the property be listed for sale at a price mutually agreed upon by the parties, and failing agreement as to the price, then as determined by a valuer agreed upon by the parties, and failing agreement as to the identity of the valuer, that such valuer be nominated by the President for the time being of the Australian Property Institute Inc. (NSW) Division, and that the cost of the valuer be borne from the proceeds of sale of the property, or if met initially by the husband, that he be reimbursed for such expenditure from the proceeds of sale of the property.

3. That the parties cause the property to be listed at a figure 5% in excess of the price set out in accordance with Order 2 hereof and that in the event that offers are received in respect of the sale of the property which are no less than 5% below the figure agreed upon or nominated by the valuer, that the parties do all things necessary to execute and exchange a Contract with the person or entity making any such offer.

4. That the parties do all acts and things and sign all documents necessary to cause the proceeds of sale of the property be applied in the following manner and priority:

   (a)In payment of agents commission and advertising expenses incurred in relation to the sale;

   (b)In payment of legal costs and disbursements incidental to the sale;

   (c)In payment to the husband of any sums reasonably expended by him for the purposes of repairing or bringing the property to a proper state for presentation for sale in accordance with any advice of the agent;

   (d)In payment to the husband of any sum expended in obtaining a valuation of the property pursuant to Order 1;

   (e)In payment of the amount required to discharge the mortgage to Commonwealth Bank of Australia, registered dealing number 9138920;

   (f)In payment of any arrears of rates or other Council, State or Federal levies;

   (g)In payment to the wife of a sum of $50,000.00;

   (h)In payment to the husband of a sum of $50,000.00;

   (i)In deposit of the balance into a joint account in the names of both parties subject to the requirement that neither party can withdraw funds from that account without the written consent of the other.

5. That pending completion of the sale of the property the husband do all acts and things necessary to maintain and preserve the property and improvements thereon.

6. That within 21 days of the date of these Orders the parties do all acts and things and sign all documents necessary to increase the mortgage secured on the title to the property by $100,000.00 and pay that sum as follows:

   (a)$50,000.00 to the wife;

   (b)$50,000.00 to the husband,

   with the characterisation of such payments being a matter for the trial judge.

7. That within 21 days of contracts being exchanged for the sale of the property the husband provide to the wife access to the property to retrieve the following items:

   Big glass bottles;

   Wood bowl Mr E gave to the wife for the wedding;

   Wood bowl Ms F gave to the wife;

   Photos;

   DVD’s;

   All exercise equipment;

   Specified entertainment equipment, cane cheese/cake tray;

   All platters and bowls;

   Water jugs;

   All horse figurines;

   Coffee table books;

   Cake tins, pie tins and all baking accessories;

   Cook books;

   Cutlery, plates and glassware;

   Sheets, towels, doonas and pillows;

   Dining table with eight chairs – cowhide/wood;

   Lounge;

   Dresser;

   Television – flat screen;

   Refrigerator;

   Rocking horse;

   Washing machine;

   Dryer;

   Queen bed;

   Bookshelves;

   Small antique side table;

   Glass top small table;

   Pillows and throw (the one that Ms G gave to the wife) for the lounge.

8. That, otherwise, the Amended Application in a Case filed on 7 March 2012 and the Response to the Amended Application in a Case filed on 8 June 2012 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Byron & Byron 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 SYDNEY

FILE NUMBER: SYC 4251 of 2011

Ms Byron

Applicant

And

Mr Byron

Respondent

REASONS FOR JUDGMENT

Proceedings

1. On 13 July 2011 the husband, Mr Byron, commenced proceedings for settlement of property.  On 20 February 2012 the wife, Ms Byron, filed an Application in a Case by which she sought widely framed injunctions; interim spouse maintenance of $500.00 per week; a lump sum of $50,000.00 as “interim costs”; a joinder of two corporate entities to the proceedings and an order that she be permitted access to the former matrimonial home so as to retrieve 43 specified chattels.

2. On 7 March 2012 the wife filed an Amended Application in a Case.  This application differed from the relief which she had earlier sought in that she asked for two payments each of $50,000.00 by way of interim costs and dispensation with compliance with any relevant rule.  The wife further sought leave to list the Application in a Case on short notice.

3. On 8 June 2012 the husband filed a Response to the wife’s Application in a Case.  He sought orders to the effect that the parties join in the sale of the former matrimonial home, C Street, Town D (“the Town D  property”) and that they each receive the sum of $50,000.00 from the proceeds, with the balance invested pending final determination of the competing applications.  The husband also proposed that the parties’ credit card debts be discharged from the proceeds of the sale.  The husband proposed further that the parties join in a drawdown on the mortgage in the sum of $100,000.00 within 21 days to facilitate a payment to each of them of an amount of $50,000.00.

Background

1. The husband, who is 62, and the wife, who is aged 47, commenced cohabitation in May or October 1997 and married in December 1997.  They separated on 23 or 28 December 2010.  There were no children of the parties’ relationship.  They each have children by prior marriages.

2. In February 2011 a final apprehended violence order was made against the wife for the protection of the husband for 12 months.  In May 2011 the wife was convicted of malicious damage to property, a charge arising from the same incident which resulted in the apprehended violence order, and placed on a bond to be on good behaviour for 18 months.  The consequence of the apprehended violence order and good behaviour bond was that the wife was prevented from attending the Town D property.  In February 2011 she obtained employment as a live-in sport trainer at a sport centre in Western Sydney.

3. By her affidavit sworn on 5 March 2012 the wife gave uncontradicted evidence that she has suffered various physical injuries in the course of her employment, which give rise to no entitlement to workers compensation.  She gave uncontradicted evidence that she would be required to vacate her accommodation when her employer found a replacement for her.  According to her solicitor’s letter dated 4 June 2012, which was annexed to the husband’s affidavit sworn on 8 June 2012, the wife “is currently living between friends and her son’s home”.

4. The husband operates various businesses in Southern New South Wales.  These businesses are conducted through various trusts.  For present purposes, it is unnecessary to examine the links between these various entities.

Consideration

1. The wife was unable to point to any fund from which the husband could pay to her a lump sum of $50,000.00.  Her counsel made much of supposed significant changes to the husband’s financial position between July 2011 and June 2012 but, in his affidavit, he outlined the impact of recent commercial litigation involving one entity in which he holds an interest.

2. The fact remains that the wife was able to identify no source from which the husband could pay to her a lump sum of $50,000.00.  It thus seemed to me that there was no alternative but to accede to the husband’s proposal for a sale of the Town D property.

3. The wife opposed any payment to the husband from the sale proceeds.  On her behalf it was suggested, in effect, that the husband would dissipate any funds paid to him and that the wife may ultimately be found to be entitled to receive a sum greater than the net assets remaining at the time.

4. In his affidavit the husband outlined his view as to the necessity for an orderly sale of assets held by the H Trust, which holds an interest in an entity known as Business J.  In summary, the husband explained that the commercial litigation resulted in the non-renewal of a lease and an order for costs against a management company which had previously operated Business J.  The costs remain unpaid and the business is currently without a tenant, hence there is default in the mortgage repayments.

5. The husband gave unchallenged evidence that he is attempting to negotiate a sale of various business assets.   He maintained that he is attempting to avoid a mortgagee sale, which seemed to me to be a proper approach to his current financial difficulties.  He made it clear that he is prepared to hold any net proceeds of these sales in his solicitor’s trust account, pending final resolution of the proceedings.

6. It seemed to me that the husband adopted a reasonable and practical approach to the wife’s interim application.  In her financial statement sworn on 27 October 2011 the wife made an admission against interest that the Town D property is valued at “E $1M”, she being the sole registered proprietor.  In correspondence annexed to the husband’s affidavit there was an indication that he has been offered $800,000.00 for the property.  The parties’ respective financial statements suggested that they agree that they have a joint mortgage liability of approximately $200,000.00 secured on the title to the property.  I was taken to no evidence that the Town D property is security for any other liability, hence the net equity would be appear to be of the order of $600,000.00.

7. I see no reason why the husband should be deprived of a proportion of the proceeds of sale of the Town D property.  In his two financial statements he deposed to a gross weekly income of around $1,500.00 and expenses which total $1,800.00, which include mortgage repayments in respect of the Town D property.  He held minimal savings in July 2011 and June 2012.  He indicated that he is prepared to preserve any net proceeds of sale of business assets, which option the wife and those who advise her are at liberty to pursue if they so wish.  In these circumstances I will accede to the husband’s application that each of the parties receive a lump sum of $50,000.00 from the proceeds of sale of the Town D property.  I will not order that credit card debts of the parties be discharged from the sale proceeds because there was no evidence of the circumstances in which these liabilities were incurred.

8. The wife demonstrated no capacity on the part of the husband to pay interim spouse maintenance in the sum of $500.00 per week.  In any event if she receives a lump sum of $50,000.00 she would have difficulty in establishing a need for periodic spouse maintenance, pending final orders for property settlement.  Accordingly, I will refuse the wife’s application for interim spouse maintenance of $500.00 per week.

9. The husband opposed the wife’s application that she have access to the property to remove the 43 specified items of personal property.  In his affidavit the husband set out his reasons as follows:

   In response to paragraph 38 of the Wife’s affidavit in relation to the recovery by her of items located at the property, I say that the Wife is seeking to remove almost all of the household contents in the property as set out in her Amended Application in a Case filed 7 March 2012.  I am seeking that the property be listed for sale immediately and on the sale of the property the Wife can collect the majority of the items sought by her.  A lot of the items she is seeking to remove need to stay in the property so that it can be marketed for sale in an appealing manner rather than an empty house.  I have on occasion offered to deliver the Wife’s personal items to her in Sydney however she has declined that offer.

10. In circumstances where there is a dispute as to the distribution of personal property between the parties, it seems to me that I can properly go no further than to order that the wife collect the items upon which there is agreement.  I will thus order that the wife have access to the Town D property to collect the items in respect of which the husband gave his consent.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 27 June 2012.

Associate: 

Date:  27 June 2012