CAPIROLA & CAPIROLA - [2018] FamCA 490

FAMILY COURT OF AUSTRALIA

CAPIROLA & CAPIROLA

[2018] FamCA 490

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Where the wife seeks that previous orders for the sale of the parties’ properties be stayed – Where a stay does not prejudice either party – Orders made staying previous orders for sale.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks that the husband pay her spousal maintenance – Where the husband claims he does not have the funds to make such payments – Where each party cares for the youngest child of the relationship to some extent – Where such care of the child does not preclude either party from working – Where the wife has produced no evidence as to why she cannot work – Where it is not proven that the wife cannot support herself – Application for spousal maintenance dismissed.

FAMILY LAW – INTERIM PROPERTY – Where the husband seeks interim property payment be made to each party – Where the amount sought represents a small percentage of the net asset pool as it stands and can be reversed at trial from the remaining assets if necessary – Orders made for each party to receive an interim property payment.

Family Law Act 1975 (Cth) ss 72, 74, 75(2)
Family Law Rules 2004 (Cth) r 17.02

Bevan & Bevan (1995) FLC 92-600
Harris & Harris (1993) FLC 92-378
In the Marriage of J U and T Poletti (1990) 15 FamLR 794
Moroni & Moroni [2014] FamCA 664
Redman and Redman [1987] FamCA 2; (1987) FLC 91-805
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Ms Capirola

RESPONDENT:

Mr Capirola

FILE NUMBER:

PAC

1171

2017

DATE DELIVERED:

29 June 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:	Parramatta
JUDGMENT OF:	Foster J
HEARING DATE:	21 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Givney

SOLICITOR FOR THE APPLICANT:

KPL Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Blank

SOLICITOR FOR THE RESPONDENT:

Voros Lawyers

Orders

That the wife’s application for interim spousal maintenance be dismissed.
That the husband and wife do all necessary things and sign all necessary documents so as to authorise and direct that from the funds presently held in trust for them in a controlled monies account the sum of $100,000 be paid to the husband within seven days from this date and that the sum of $100,000 be paid to the wife within seven days from this date with the characterisation of such payments reserved to final trial or agreement between the parties.
That the operation of Orders made on 20 February 2018 insofar as they require a sale of the former matrimonial home at Suburb C be stayed pending further order or agreement in writing between the parties.
That otherwise all pending interim applications are dismissed.
That each of the parties’ costs of and incidental to these interim proceedings are reserved to final trial.

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

IT IS…

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: CAPIROLA & CAPIROLA [2018] FamCA 490
Case: [2018] FamCA 490
Decision Date: 29 June 2018

CaseChat Overview and Summary

In the matter of *Capirola & Capirola*, Foster J considered applications by both the wife and the husband in ongoing family law proceedings. The wife sought a stay of previous orders for the sale of the parties' properties and spousal maintenance from the husband. The husband sought interim property payments for himself and the wife.

The court was required to determine whether to grant a stay of the property sale orders, whether the wife had established a need for spousal maintenance, and whether to order interim property payments to the parties. The court also considered the general dismissal of other pending interim applications.

Regarding the spousal maintenance application, Foster J found that neither party's care of the youngest child precluded them from working, and the wife had not provided evidence demonstrating her inability to support herself. Consequently, the application for spousal maintenance was dismissed. However, the court ordered interim property payments of $100,000 to each party from funds held in trust, noting that these payments represented a small portion of the asset pool and could be adjusted at trial if necessary. The court also granted the wife's application for a stay of the orders requiring the sale of the former matrimonial home, pending further order or agreement.

Orders

Orders of the court

That the wife’s application for interim spousal maintenance be dismissed.

That the husband and wife do all necessary things and sign all necessary documents so as to authorise and direct that from the funds presently held in trust for them in a controlled monies account the sum of $100,000 be paid to the husband within seven days from this date and that the sum of $100,000 be paid to the wife within seven days from this date with the characterisation of such payments reserved to final trial or agreement between the parties.

That the operation of Orders made on 20 February 2018 insofar as they require a sale of the former matrimonial home at Suburb C be stayed pending further order or agreement in writing between the parties.

That otherwise all pending interim applications are dismissed.

That each of the parties’ costs of and incidental to these interim proceedings are reserved to final trial.

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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