CAMERON & BROOK

[2015] FamCA 307

FAMILY COURT OF AUSTRALIA

CAMERON & BROOK [2015] FamCA 307

FAMILY LAW – PROPERTY - INTERIM - SPOUSAL MAINTENANCE – Application dismissed.

FAMILY LAW – INTERIM PROPERTY – Sale of property ordered to provide funds to both parties.

Family Law Act 1975 (Cth) ss 72, 74, 75, 78, 79, 80

Strahan v Strahan (2011) FLC 93-466

NHC & RCH (2004) FLC 93-204

APPLICANT: Ms Cameron

RESPONDENT: Mr Brook

FILE NUMBER: BRC 2216 of 2014

DATE DELIVERED: 30 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 16 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITOR FOR THE APPLICANT: Damien Greer Lawyers

COUNSEL FOR THE RESPONDENT: Ms Carew QC

SOLICITOR FOR THE RESPONDENT: Phillips Family Law

ORDERS

IT IS ORDERED

1. The Wife’s Application that the Husband pay interim spousal maintenance is dismissed.

IT IS ORDERED UNTIL FURTHER ORDER UNLESS OTHERWISE AGREED BY THE PARTIES IN WRITING

1. The Wife, as director of A Pty Ltd as trustee for the B Family Trust, do all such things as may be required to affect the sale of C Street, D Town, more particularly known as Lot 36 on RP …, County of E, Parish of F, Title reference … (the property) in a manner and at a price as agreed between the Husband and Wife and, failing agreement, by accepting any offer of $3,250,000.00 and executing any document required to accept such offer.

2. In the event the Husband and Wife are unable, despite their best endeavours, to obtain a contract in an amount of $3,250,000.00 within 30 days, the Wife as director of A Pty Ltd as trustee for the B Family Trust shall do all acts and things and sign all documents necessary to list the property for sale by private treaty on the following terms:

   (a)with such real estate agent as is agreed between the Husband and Wife; and

   (b)at a list price in an amount as agreed between the Husband and Wife but, failing agreement, in the amount of $3,250,000.00 (the list price); and

   (c)the sale price of the property shall be such amount as agreed between the Husband and Wife but, failing agreement, any offer to buy the property for an amount that is at least 95 per cent of the list price shall be accepted as the sale price.

3. The Wife as director of A Pty Ltd as trustee for the B Family Trust shall do all acts and things and sign all documents necessary to affect the sale and transfer of the property, with such actions to include but not be limited to:

   (a)the engagement and instruction of a single conveyancing solicitor to act on behalf of the registered property owner to affect the sale; and

   (b)the signing of any transfer documentation no later than 14 days prior to the settlement date for such sale; and

   (c)doing any other thing as may reasonably be requested or recommended by the appointed conveyancing solicitor as necessary to facilitate the sale. 

4. Within seven (7) days of any contract for the sale of the property becoming unconditional, the Wife as director of A Pty Ltd as trustee for the B Family Trust shall do all such things as may be required to open a bank account for the sole purpose of holding funds to pay the estimated capital gains tax payable on the sale at the property (the capital gains tax account).

5. The Wife as director of A Pty Ltd as trustee for the B Family Trust shall do all such things as may be necessary to cause the proceeds of sale of the property to be paid in the following manner and priority as soon as practicable after settlement of the sale:

   (a)payment to the National Australia Bank of an amount required to release registered mortgage number …; and

   (b)payment of any commission and other expenses payable to the real estate agent on the sale of the property; and

   (c)payment of any legal costs and outlays relating to the sale of the property; and

   (d)payment into the capital gains tax account of a sum sufficient to meet the estimated capital gains tax payable on the sale of the property, with such funds to be held within the capital gains tax account pending agreement between the Husband and Wife or further order of the Court; and

   (e)reimbursement to either party for any expenses relating to the sale of the property pursuant to this Order which have been paid by that party personally; and

   (f)payment to the Wife of an amount of $102,571.33 by way of partial property settlement with such payment to be made to the solicitors for the Wife and to be used by the Wife toward payment of outstanding legal expenses and other costs of and incidental to these proceedings; and

   (g)payment to the Wife of an amount of $300,000.00 by way of partial property settlement with such payment to be made to the solicitors for the Wife; and

   (h)payment to the Husband of an amount of $300,000.00 by way of partial property settlement with such payment to be made to the solicitors for the Husband; and

   (i)payment of the balance then remaining into an interest-bearing account on behalf of the B Family Trust.

6. In the event the property is not sold by private treaty within six (6) months from the date of listing, the parties have liberty to apply.

7. The Husband do all such things as may be necessary to sell the motor vessel known as “G” (the motor vessel) with such actions to include but not be limited to:

   (a)listing the motor vessel for sale with a motor vessel broker within fourteen (14) days of the making of the Order; and

   (b)listing the motor vessel for sale at a price as may be agreed between the parties but, failing agreement, for $1,600,000.00 (the list price); and

   (c)the sale price of the motor vessel shall be such amount as agreed between the Husband and Wife but, failing agreement, any offer to buy the motor vessel for an amount that is at least 90 per cent of the list price shall be accepted as the sale price.

8. The Husband shall do all things necessary to cause the proceeds of sale of the motor vessel to be paid in the following manner and priority as soon as practicable after settlement of the sale:

   (a)payment of any agent’s commission and expenses associated with the sale of the motor vessel; and

   (b)payment of any legal costs and outlays relating to the sale of the motor vessel; and

   (c)reimbursement to either party for any expenses relating to the sale of the motor vessel pursuant to this Order which have been paid by that party personally; and

   (d)payment of the balance then remaining into an interest-bearing account on behalf of the Husband and Wife.

9. In the event a party seeks an order that the other pay the costs of and incidental to the Interim Applications determined by this Order, that party:

   (a)shall file and serve on the other brief written submissions in support of such application for costs within fourteen (14) days of today;  and

   (b)the party from whom costs are sought shall file and serve any brief written submissions in answer to the submissions filed and served within a further fourteen (14) days thereafter;  and

   (c)the first party shall file and serve any brief further written submissions, strictly in reply to the submissions filed and served pursuant to Order 10(b), within seven (7) days of service,

   and any such application for costs shall be considered in Chambers. 

IT IS DIRECTED THAT

1. Clauses 5 and 6 of the Order made 16 October 2014 are vacated.

2. By 4.00 pm on 8 May 2015, the Wife provide to the Husband a list of the names of three (3) valuers nominated by her as appropriate to value any entity and/or item of property the value of which is in dispute between the parties.

3. Within fourteen (14) days of receiving the list of names referred to in Clause (12), the Husband nominate a valuer as the single expert to be engaged by the parties for the purpose of valuing any entity and/or item of property the value of which is in dispute between the parties.

4. In the event that the wife does not provide to the Husband a list of the names of three (3) valuers nominated by her as appropriate to value any entity and/or item of property (the value of which is in dispute between the parties) by 4.00 pm on 8 May 2015, the Husband shall nominate an appropriately qualified person to value any entity and/or item of property (the value of which is in dispute between the parties) and any such nominated person shall be the single expert engaged to value that entity and/or item of property.

5. In the event that either the property or the motor vessel referred to in this Order have been sold by the time the valuer appointed by the parties in accordance with this Order requires payment for the provision of that person’s services, the parties shall each do all things necessary to ensure that the costs of valuation are paid from funds held in the accounts referred to in Clauses (6)(i) or (9)(d) above.

6. In the event that there are no funds in the accounts referred to in Clauses (6)(i) or (9)(d) above at the time the valuer appointed by the parties in accordance with this Order requires payment for the provision of that person’s services, the Husband shall be responsible for meeting the costs of valuation at first instance and shall be reimbursed for the same immediately upon funds being deposited into either of the accounts referred to in Clauses (6)(i) or (9)(d) above.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cameron & Brook 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 2216 of 2014

Ms Cameron

Applicant

And

Mr Brook

Respondent

REASONS FOR JUDGMENT

1. The parties commenced cohabitation in early 2000, married in 2001 and separated on a final basis on 18 February 2012. They have three children, aged 10, 7 and 6 years respectively, whose care arrangements have, so far, been resolved without judicial intervention. The children live with the mother and spend five nights[1] each fortnight with the father. They also spend time during school holidays with each of their parents and both parents assist in transporting the children to school each morning during school term. During winter, the father also collects the children from an extra-curricular activity during the week. Additionally, when in their mother’s care, the children attend at after-school care on occasions and, when in their father’s care, they are cared for by a nanny on occasions.

   [1]Each alternate weekend from Friday afternoon until Monday morning and each Wednesday overnight.

2. No conclusion other than that both parents are actively involved in the day to day care of the children could possibly be reached, even at an interim hearing.

3. The husband is a property developer who has an interest in a property development company. Income received by him, or entities under his control, has been used by the parties to meet the family’s financial needs - both prior to and after separation.

4. Until recently, the parties were able to agree about the extent of the financial support the husband would continue to provide to the wife, an accountant, until the property settlement proceedings are finalised. That is no longer the case.

5. The wife currently has available to her the amount of about $3,348.24.00 per week, sourced as follows from the husband[2] and property she owns:

   a)$1,506.00 (net) from an entity partially owned and controlled by the husband and a third party[3]; and

   b)about $581.00 (net)[4] rental income from property at D Town; and

   c)$666.00 - payment by the husband which he has ‘characterised’ as spousal maintenance;  and

   d)$502.69 - payment by the husband of a lease on an European motor vehicle;  and

   e)$53.55 - payment by the husband of insurance and registration on the European motor vehicle;  and

   f)$39.00 - payment by the husband of her mobile phone account.

   [2]          Paid either personally or by entities under his control.

   [3]          For which she does not perform any work.

   [4]          $2,616.00 (gross) weekly rental income less weekly expenses of about $2,035.00.

6. The current level of financial support available to the wife is, therefore, about $174,108.48 (net of tax) per year.

7. In August 2014, the husband undertook to continue to make the payments emanating from him or entities under his control pending the resolution of the final property matters.[5] In opposing the making of any order for interim spousal maintenance, he confirmed his intention to continue to do so when he was cross-examined before me by Counsel for the wife.

   [5]          Annexure ‘DNB5’ husband’s affidavit filed 8 December 2014.

8. In addition to the funds outlined above, the wife has already had access to and has utilised the entirety of the proceeds of sale, in an amount of approximately $465,000.00, from the former matrimonial home. It is sufficient for the purpose of this application to note that this money has been spent in the period from October 2012 in meeting, on the wife’s evidence, her need for support, the children’s expenses and other particularised expenses.

9. It is relevant to any assessment of the husband’s capacity to meet any amount found to be reasonably payable to the wife for her maintenance - if I am persuaded that she is unable adequately to support herself from the funds outlined above – to record that the husband also:

   a)pays the wife $634.00 per week child support: an amount which  represents a significant contribution to meeting the children’s costs, which have been quantified by the wife, exclusive of the cost of accommodation, in an amount of $692.00 per week; and

   b)ensures that the amount of about $1,000.00 per week, being cost of the children’s attendance at their respective private schools, is met; and

   c)pays the cost of the children’s medical insurance in an amount of about $119.00 per week.

Application for interim spousal maintenance

1. The wife now seeks the husband pay to her $792.00 per week spousal maintenance.[6] The husband opposes the making of any order on the basis that:

   a)the wife has failed to establish she is unable to support herself adequately; or, alternatively,

   b)if the Court determines she has discharged this threshold requirement: he does not have the capacity to pay the amount sought.

   [6]Revised from $2,092.00 per week to reflect the husband’s payment to her of the balance between this figure and the amount paid to her by the husband after the application for interim spousal maintenance was filed.

2. The husband is liable to maintain the wife to the extent that he is reasonably able to do so if and only if she is unable to support herself adequately by reason of age, or physical or mental incapacity for appropriate gainful employment or for any other adequate reason.[7] If satisfied of such inability and that the husband has capacity, reasonably, to maintain her, the Court may make such order as it considers proper for the provision of maintenance to the wife.[8] In exercising jurisdiction under s 74 of the Family Law Act 1975 (Cth), the Court shall take into account only the matters referred to in s 75(2) of the Act.[9]

   [7] s 72(1) Family Law Act 1975 (Cth).

   [8] s 74(1)

   [9]          s 75(1).

Is the wife unable to support herself adequately?

1. The wife ceased employment in or about May 2004, prior to the birth of the parties’ first child. Save for undertaking a seven week project management contract from about mid October 2013 – for which she received about $8,000.00 gross for working two days per week[10] - she has not been in paid employment since.

   [10]         On average, for 16 hours per week.

2. During this seven week period of employment, the wife made suitable arrangements for the children’s care whilst they were with her. She arranged both after school care and used the services of a nanny.

3. The fact that the wife worked for a number of weeks in late 2013 establishes for me that she has demonstrated the ability to return to paid employment despite not having engaged in the same for a number of years. Even with this absence from the employment market, she was able to obtain work which returned to her the amount of about $1,000.00 (gross) per week. To illustrate the consequence of receipt of such an amount – and accepting that it does not adequately incorporate the complexities of the wife’s financial situation – employment in work returning this amount would result in the wife receiving about $836.00 net of tax per week[11], which would enable her to meet her needs in the amount she quantifies them to be.

   [11]         Assuming no other taxable income was received by her.

4. There is no evidence of the wife’s attempts to find paid employment since the contract ended in late 2013. This is because she has not made any attempt to obtain employment since the end of November 2013: whilst asserting she would like to return to paid employment, she accepted that, during 2014, she did not take any steps to achieve this professed desire.

5. The wife’s decision not to seek out paid employment means that this is not a case in which a party has unsuccessfully attempted to obtain employment in order to support themselves financially. Rather, this is a case in which a party possessing educational qualifications - which equip them to engage in paid employment remunerative of about $1,000.00 (gross) per week - with relatively recent demonstrated ability to obtain and engage in such paid employment has positively determined not to take any steps to attempt to obtain such employment. This does not, for me, establish an incapacity to support oneself financially.

6. The wife impressed as an intelligent and competent person. There is nothing to suggest she suffers from any medical or psychological condition to prevent her from supporting herself adequately. All of the children attend school during school term. Appropriate arrangements for their care have previously been implemented. There is nothing in the evidence to suggest that, in the event the wife again re-enters the paid workforce, such arrangements could not be put in place again. Additionally, the husband seeks to increase the children’s time with him so that they live with each parent for an equal amount of time. If implemented by the parties, this, too, will afford to the wife a further respite from the care of the children and will further increase her ability to engage in paid work.

7. Whilst of less relevance, it is not disputed that the parties’ common intention – implemented during their relationship – was that the wife not return to paid employment until their youngest child reached the age of 7 years: an event which occurred in January 2015.

8. I am not persuaded on the evidence that the wife has established that she is unable, by virtue of physical or mental incapacity, or the care of the children or for any other reason, to support herself adequately.

9. Having regard to the parties’ proposals about the competing sources from which funds should be made available to them and the conclusions about the same which I have reached (as outlined below), once property is sold, the wife will then have significant funds available to her from which she can meet any shortfall in her asserted necessary expenses. That is, she will have access to no less than about $300,000.00 from which she can meet her legal expenses and costs and any other living expenses.

10. Accordingly, I dismiss the wife’s application for an order that the husband pay her spousal maintenance in the sum of $792.00 per week.

Property matters

1. Perhaps the most significant issue in dispute between the parties is the value of the property the subject of the proceedings and, given the disparity in each parties’ view of the same, what has happened since separation to give rise to such disparity. To illustrate, the wife asserts that, at the end of the 2012 financial year, the property of the parties was valued at around $18,000,000.00[12] and the husband asserts the current value is about $7,000,000.00.

   [12]         Annexure ‘SAC 4’ wife’s affidavit filed 24 October 2014.

1. It is within the context of a quest to understand this significant difference that the application for funds necessary to engage in investigation, evaluations and, possibly, a trial occurs.

Application for litigation funding and/or interim property orders

1. The wife seeks[13] that, to enable her to pay legal and other costs associated with this proceeding, the Court:

   a)order that, within seven days, the husband pay to her solicitor the sum of $144,157.12 to pay outstanding legal fees; and

   b)make a “dollar for dollar” order to enable her ongoing legal and associated fees to be met.  

   [13]Response to Initiating Application filed 24 October 2014, and as amended in her Amended Response to Initiating Application filed 12 December 2014.

2. She proposes that the characterisation of these funds is reserved to the trial Judge.

3. The husband asserts that funds should be made available to both parties to enable them to pay their respective legal and other costs – such as those associated with valuing property and interests in the business and various entities – associated with the current proceedings. He proposes that such sums be characterised now as constituting interim property settlement received by each party.

4. I am unable to refrain from commenting, in passing, that it will be a tragic consequence if, as a consequence of an inability to reach agreement about a just and equitable resolution of the property settlement proceedings, the parties jointly expend about $1,000,000.00 (as the husband predicts may occur). Whilst trite no doubt, one can only conclude that so many things so much more worthwhile than litigation could be achieved by both parties for themselves and their children with this money: ultimately, it is a matter, of course, for the parties. After all, it is their money that will be spent and their respective financial futures which will bear the impact of such expenditure.

5. The husband’s sensible concession about the necessity for funds to be made available to the wife – and him - makes a consideration of many of the matters usually required unnecessary.[14]  The real issue becomes the source from which the funds are to emanate: from the husband’s ongoing income stream as proposed by the wife or from the sale of certain assets as proposed by the husband. Additionally, if the latter course is found to be the most appropriate way for the parties to access the financial means by which to fund their litigation, there is dispute about which asset should be sold.

   [14]         Strahan v Strahan (2011) FLC 93-466.

The marine vessel

1. I record that, whilst there is some disagreement about the manner in which any sale proceeds from the same should be used, the parties agree that a marine vessel owned by the husband should be listed for sale. Orders will be made to reflect this agreement.

2. I accept the husband’s evidence that he has already told vessel brokers he was interested in hearing about any offers an interested party might be minded to make for the vessel, but heard nothing over about a 12 month period. This absence of interest suggests that, unless the parties are willing to offer the marine vessel at a price significantly less than its value, it may well take some time to sell.

3. Given the relevant terms of the order proposed by the wife – namely, that the vessel be listed for sale at a price of $1,600,000.00 - neither party seemed to me to be advocating for such a course at this stage. Mr Galloway of Counsel for the wife confirmed that her proposal was for an orderly sale of this asset. It seems more likely than not that the sale of the motor vessel is unlikely to provide the parties with access to funds in a particularly timely fashion.

4. Once the motor vessel is sold, the husband’s burden of the payment of $16,500.00 per year to meet the costs of its insurance will evaporate.

Additional and alternative sources of funds

1. I am not persuaded that the wife has established the existence of a source from which the husband could meet an order requiring the payment of more than $100,000.00 within seven days.

2. I accept the evidence given by both the husband and Mr H, the group accountant, to the effect that such an amount is not immediately available to the husband: there is, for example, no bank account in which such an amount reposes.

3. Noting that there was no real challenge to Mr H’s evidence, I accept that, in circumstances where the corporate group has a collective net deficit of $22,000.000.00 and the husband’s funds are being sourced from drawdowns, it is likely to be increasingly difficult for him to continue to advance funds to the husband. I accept his evidence to the effect that this is likely to be the case because the nature of the partnership between the husband and his business partner is such that drawdowns must be made to each partner in the same amount and the business partner is unlikely to be willing to continue to permit an increase in the amount of drawdowns necessary to provide the husband with funds from which to meet the orders sought by the wife.

The competing proposals: the sale of an asset or obtaining a line of credit

1. Having arrived at this conclusion, the outstanding issue can be reframed as follows: is it just and equitable and does the balance of convenience favour the sale of an investment property at D Town (as the husband proposes) or a property at Suburb I in which the husband lives (as the wife proposes)?

2. Another option – proposed by the husband as an alternative to the sale of the D Town property – is that the parties obtain a Line of Credit (secured against the D Town property) in an amount of up to $800,000.00 which could be drawn against to meet their respective legal fees and the expenses associated with the litigation. He further proposed that he make the repayments on such Line of Credit at first instance, with the parties to be equally responsible for the same overall and that such costs be characterised as a partial property settlement made to each party. An additional part of this proposal is that once sale proceeds are realised from the sale of the motor vessel, they be applied to discharge the Line of Credit.

3. I accept that one of the potentially adverse consequences of deciding that the parties obtain a Line of Credit facility is that, if the marine vessel does not sell relatively quickly, they will be required to service that facility at an interest rate that is unlikely to be commercially attractive.

4. During the course of his submissions, Mr Galloway for the wife advanced a hybrid proposal: namely, that any Line of Credit determined to be the most proper means by which the wife’s need for funds can be met be limited to an amount of about $450,000.00 and that the husband continue to meet his need for funds for litigation from his drawings.

5. I am persuaded that it is appropriate that the parties obtain funds from the sale of an asset rather than the option of obtaining a Line of Credit. I arrive at this conclusion taking into account the matter outlined in paragraph 38 and the potential impost – in terms of the cost of borrowing – on the parties if the motor vessel is not sold quickly: an eventuality that seems more likely than not given the previous lack of interest in it.

The D Town property

1. The husband proposes that the net proceeds[15] obtained from the sale of the D Town property should be distributed so that the wife receives $402,571.33, he receive $300,000.00 and the balance is deposited into an interest bearing account. Save for the payment to the husband, the wife agrees with the manner in which the sale proceeds should be dispersed.

   [15]Those remaining after the payment out of any mortgage encumbering the property and the costs associated with the sale of the property.

2. The D Town property was valued at $2,550,000.00 in May 2013. It has relatively recently been the subject of an expression of interest at a price of $3,250,000.00 – an offer made on a ‘not subject to finance’ basis.  The wife accepts that a real estate agent has said this represents a very good offer for the property.  Whilst the wife said, during cross-examination, that she did not agree to the sale of the D Town property, because to do so would not maximise its return, the reality is that the offer made to the parties is for an amount which is $700,000.00 more than the existing valuation.

3. The D Town property is used on a limited number of occasions per year. For example, the wife used it in April and July 2014. It provides the wife with a net income of about $528.00 - $530.00 per week. If it is sold, this income will no longer be available to her but, of course, she will be provided with a lump sum of no less than about $300,000.00.

4. The wife accepted during cross-examination that the net return obtained from renting the D Town property amounted to a poor net return on capital given the offer to purchase it for $3,250,000.00. She further accepted that ownership of the property amounted to a very poor investment if considered on the basis of the income it produced, that it was not returning much on its investment and that it had the capacity to provide the parties with significant funds given the relatively modest borrowings secured over it - in an amount of about $240,000.00.

5. Despite Counsel for the wife’s submission that the wife opposed the sale of the D Town property because she sought to retain it in the property settlement proceedings, no such order forms part of the final orders sought by the wife as contained within the Response to Initiating Application filed 24 October 2014 or within the Amended Response to Initiating Application filed 12 December 2014: rather, the relief sought has not been particularised. 

6. Additionally, the contention that the wife seeks to retain the D Town property in the property settlement proceedings does not appear in her affidavits filed 24 October 2014 or 12 December 2014. Leave to adduce evidence from the wife about this submitted desire was not sought when she was made available for cross-examination.

7. In the absence of evidence, I am not persuaded to accept the submission that one of the reasons I would not order the sale of the D Town property – and, instead, would order the sale of the Suburb I property - is that such a sale will irreparably damage the wife’s ability to retain an asset she seeks to retain as part of the resolution of the parties’ property settlement proceedings.

8. I do, however, accept the submission to the effect that the sale of this asset is likely to have capital gains tax implications for the parties.  So much is recognised and provided for in the order proposed by the husband, whereby funds necessary to meet such liability will be quarantined from the net sale proceeds.

The Suburb I property

1. The wife proposes the Suburb I property be listed for sale for $3,700,000.00. She says that, despite it being purchased about 12 to 18 months ago, the market in which it is located is very positive and it is likely to sell quickly. The husband bought the property for approximately $3,700,000.00, having borrowed $3,200,000.00. Thus, his equity in it is about $500,000.00.[16] There would be no capital gains tax implications if this asset was sold.

   [16]         Affidavit of husband filed 8 December 2014, at [103.1.5].

2. The mortgage repayments made by the husband in respect of the Suburb I property are $3,278.00 per week. Whilst I accept the submission made by Counsel for the wife that the husband elected to purchase this property knowing the significant impost on cash flow that such purchase resulted in, the reality for the parties is that it has been purchased:  Its sale now would only produce about $500,000.00, from which the costs associated with the sale would have to be deducted. For the purpose of this application, I accept the husband’s evidence to the effect that, if sold, this property may realise between $350,000.00 - $400,000.00 depending on its price and the costs of sale.

3. Thus, there is the very real prospect that the sale of this asset would not realise sufficient funds to meet the wife’s claim – at least until the motor vessel is sold.

4. The husband accepted, during cross-examination, that if considered from a cash flow perspective, the sale of the Suburb I property makes financial sense. However, he said that this property was his “home” - he had made it a place for the children to enjoy spending time with him.

5. I do not accept the submission made by Counsel for the wife that the overarching justice of this matter requires the making of an order that would see the wife be provided with funds – from the sale of an asset – from which to meet her litigation expenses whilst the husband should be required to meet the same from his income.

6. Given that separation occurred in February 2012 and that I have concluded that the wife is capable of supporting herself financially, I consider that justice requires that both parties be provided with funds from the sale of an asset.

7. I have concluded that the balance of convenience favours an order requiring that the D Town property – an investment and occupied by neither party – is sold.  In contrast to the Suburb I property, its sale is more likely to provide the parties with sufficient funds to meet their respective asserted needs for funds to meet litigation and other expenses.

8. Additionally, this is the asset in respect of which there is an existing offer to purchase; this is the asset which is most likely to provide the most significant amount of money to the parties and this is the asset which neither party regards as their “home”.

9. I consider it just and equitable[17] that the proceeds of the sale of the D Town property be paid to the parties in the manner proposed by the husband, save for the limitation restricting the parties in the manner in which the funds received are spent.

   [17] s 79, s 80(1)(h) of the Family Law Act 1975 (Cth)

10. I have deliberately refrained from restricting each party’s use of the funds to be provided to them from the sale of assets:  each will be provided with funds by way of partial property settlement and each will expend their own funds on either meeting legal expenses or other expenditures thought appropriate. As has been made clear by the Full Court[18] – whilst in the context of discussion about notionally adding back monies that existed at separation but which have been subsequently spent - neither the Act nor the case law require that, pending the resolution of their financial arrangements, parties go into a state of suspended economic animation once their marriage breaks down: they are entitled to continue to provide for their own support. 

    [18]Marker [1998] FamCA 42 per Baker, Kay and Chisholm JJ, referred to in NHC & RCH (2004) FLC 93-204.

11. The funds obtained from the sale of the marine vessel and the D Town property are property of the parties – it is for them to determine, in the context of ongoing litigation (clearly recognised by each of them as likely to involve significant expense), the manner in which each chooses to apportion the same to meeting such costs and/or - for example – the acquisition of other assets or self-support. 

Appointment of single expert witness and other directions the trial

1. Ms Carew QC for the husband proposed that the Court make a number of directions designed to facilitate the matter proceeding to trial. I am persuaded that it is appropriate to make orders in relation to the nomination and selection of an appropriately qualified person to value those entities and other property, the value of which is not agreed between the parties.

2. Save for this, however, I decline to make orders in terms sought by Ms Carew QC. I consider that the ongoing management of this matter prior to it being placed on the call over list is properly a matter for a Registrar who can make further appropriate directions once the valuation evidence is to hand.

Costs

1. Orders of a standard nature will be made to facilitate any application that either party wishes to make for the payment of costs by the other party.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 April 2015.

Associate: 

Date:              30 April 2015