CHAMBLIN & CHAMBLIN

[2021] FCCA 662

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAMBLIN & CHAMBLIN [2021] FCCA 662

Catchwords:
FAMILY LAW – Interim partial property settlement – matters to be taken into account – the two step process – s.79 and s.80(1)(h) of the Family Law Act 1975 – orders sought to assist with the payment of legal fees.   

Legislation:

Family Law Act 1975 (Cth), ss.62G, 75, 79, 79A, 80

Cases cited:

Strahan v Strahan (2009) FLR 1

Gabel v Yardley (2008) 221 FLR 270

Stanford v Stanford (2012) 247 CLR

In the Marriage of Harris (1993) 113 FLR 472

In the Marriage of Zschokke (1996) 20 FamLR 766

Applicant: MS CHAMBLIN

Respondent: MR CHAMBLIN

File Number: BRC 10055 of 2019

Judgment of: Judge Howard

Hearing date: 17 March 2021

Date of Last Submission: 27 March 2021

Delivered at: Brisbane

Delivered on: 1 April 2021

REPRESENTATION

Counsel for the Applicant: Mr Shoebridge

Solicitors for the Applicant: Murdoch Lawyers

The Respondent attending as a self-represented litigant.

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the parties will do all things and sign all documents reasonably necessary to cause the following amounts to be paid from the proceeds of sale referred to below in the following priority:

   (a)   $20,022.63 to Murdoch Lawyers Pty Ltd Law Practice General Account, to pay the Wife’s outstanding legal fees.  This amount is designated as a partial property settlement in favour of the Applicant wife;

   (b)   $100,000 to Murdoch Lawyers Pty Ltd Law Practice Trust Account, to be applied towards the Applicant’s legal costs and outlays in these proceedings.   This amount is designated as a partial property settlement in favour of the Applicant wife; and

   (c)   The remaining balance paid into Murdoch Lawyers trust account, to be held and invested on behalf of the parties pending further Order of the Court or the written agreement of the parties.

2. That within seven (7) days of the date these Orders issue from the Court, the parties do all acts and things necessary to cause the sale proceeds of the B Street, Suburb C property held in the trust account of D Conveyancing (being $69,528), to be paid to the Murdoch Lawyers Pty Ltd Law Practice General Account, for payment (or partial payment) of the Wife’s outstanding legal fees. This amount is designated as a partial property settlement in favour of the Applicant wife.

Sale of CommSec Share Portfolio

1. That within seven (7) days of the date these Orders issue from the Court, the Respondent will do all acts and things necessary to sell all shares, managed funds and investments held in the Respondent’s CommSec share portfolio, account number ... and the proceeds of sale are to be disbursed in accordance with Order 4 herein.

2. That within two (2) business days of receiving the proceeds of sale of the Respondent’s CommSec share portfolio, the Respondent will cause those proceeds to be disbursed as follows:

   (a)   Firstly, to meet any brokerage costs relevant to the sale;

   (b)   Secondly, to Murdoch Lawyers Pty Ltd Law Practice Trust Account the sum sufficient to satisfy Order 1(a);

   (c)   Thirdly, to Murdoch Lawyers Pty Ltd Law Practice Trust Account the sum sufficient to satisfy Order 1(b);

   (d)   Finally, the balance, if any, to Murdoch Lawyers Pty Ltd Law Practice Trust Account, to be held and invested on behalf of the parties pending further Order of the Court or the written agreement of the parties.

Sale of properties

1. That within seven (7) days from the date of these Orders, the Respondent and the Applicant in their capacity as directors of E Pty Ltd ATF The Chamblin Family Trust, shall do all acts and things and sign all necessary documents to list for sale by private treaty the following properties:-

   (a)   F(1) Street, Suburb G, Queensland, more particularly described as Lot ..., SP ... , Local Government of H City, Title reference ... (“the F Street, Suburb G property”);

   (b)   F(2) Street, Suburb G, Queensland, more particularly described as lot ..., SP ... , Local Government of H City, Title reference ... (“the F(2) Street, Suburb G property”);

   (collectively referred to as “the properties”)

   and for that purpose the following shall apply:

   (c)   The F(1) Street, Suburb G property and F(2) Street, Suburb G property be listed for sale with Mr J of K Realty as real estate agent;

   (d)   The parties are to co-operate in every way with each other and the real estate agent in relation to the preparation of the properties for sale, including arranging bond cleans for the F(1) Street, Suburb G property and the F(2) Street, Suburb G property;

   (e)   The list price of the properties shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these Orders the list price will be as nominated  by the real estate agent;

   (f)    The parties are to co-operate in every way with the real estate agent in relation to the marketing of the properties for sale including making the keys readily available, allowing inspection of the properties at all times reasonably requested by the agent and ensuring that the properties are clean, neat and in good order at the time of inspection by any prospective buyer;

   (g)   The sale price of the properties shall be such amount as is agreed between the parties and failing agreement any offer to buy the properties or either of them that is at least 90% of the list price shall be accepted by the parties as the sale price;

   (h)   The contract of sale shall provide for completion within 30 days after the date of the contract or any other time period as agreed by the parties;

   (i)     The proceeds of sale of the properties or either of them shall be paid in the following manner and priority:

   (i)To discharge any registered mortgage/s or other liabilities secured against the property;

   (ii)Any other encumbrance affecting the property including rates other reasonable expenses;

   (iii)To meet all reasonable costs of sale, including payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;

   (iv)Payment of the legal costs and outlays relating to the sale;

   (v)The balance, if any, to the Murdoch Lawyers Pty Ltd Law Practice Trust Account, to be held and invested on behalf of the parties pending further Order of the Court or the written agreement of the parties.

   (j)     In the event that the properties or either of them are not sold by private treaty pursuant to the preceding Order on or before six months from the date of this Order then the parties shall do all acts and sign all documents as are necessary to sell the properties or either of them by auction and the following shall apply:

   (i)The properties not yet sold shall be listed with any agent as agreed by the parties and failing agreement with the agent appointed in accordance to Order 5(c) for sale by auction within a further 3 months;

   (ii)The reserve price of the properties or either of them shall be such amount as is agreed between the parties and failing agreement being reached between the parties seven (7) days prior to the auction, then the reserve price shall be nominated by the auctioneer;

   (iii)The parties shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties;

   (iv)The parties agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the properties or either of them at all times reasonably requested by the auctioneer and ensuring that the properties are clean, neat and in good order at the time of any inspection and on the day of auction;

   (v)The sale price of the properties not yet sold shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the properties not yet sold shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the properties or either of them at a price that is at least 80% of the reserve price shall be accepted by the parties;

   (k)   The proceeds of sale of the properties not yet sold shall be paid in the following manner and priority:

   (i)To discharge any registered mortgage/s or other liabilities secured against the properties;

   (ii)Any other encumbrance affecting the properties including rates, taxes and other reasonable expenses;

   (iii)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;

   (iv)Payment of the legal costs and outlays relating to the sale;

   (v)The balance, if any, to the Murdoch Lawyers Pty Ltd Law Practice Trust Account, to be held and invested on behalf of the parties pending further Order of the Court or the written agreement of the parties.

   (l)     In the event that any of the properties are not sold at the auction pursuant to the preceding order or within 14 days after the date of the auction by further negotiation, then the Applicant and the Respondent shall cause a further auction of the properties not yet sold to be held within 4 months after the date of the first auction and for that purpose the subprovisions of the previous order shall apply in relation to the sale and disbursement of proceeds.

Registrar to sign if default

1. That the parties execute all documents and do all acts and things necessary to give validity and effect to these Orders.

2. That if either party refuses, fails or neglects to execute any document necessary to effect these Orders seven (7) days after being requested to do so by the other party, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Brisbane be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such document in the name of such party.

3. That in the event that the Applicant seeks a further Order to cover an additional amount of legal costs and outlays over and above the amounts referred to in these orders then the applicant is at liberty to file an updated affidavit setting out the additional legal costs and outlays and is at liberty to have the matter relisted on the giving of twenty-eight (28) notice to the other party and to the Court.

IT IS NOTED that publication of this judgment under the pseudonym Chamblin & Chamblin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10055 of 2019

MS CHAMBLIN

Applicant

And

MR CHAMBLIN

Respondent

REASONS FOR JUDGMENT

1. The applicant mother in this case is Ms Chamblin.  The respondent is Mr Chamblin.

2. The following facts appear to be uncontentious:-

   a)the parties commenced living together in or about 1996;

   b)the parties were married in 1997;

   c)the parties separated on a final basis under one roof in about November 2017;

   d)The parties continued to live separated under the one roof until December 2018;

   e)In December 2018 the respondent husband (Mr Chamblin) left the former matrimonial home; and

   f)The relationship lasted approximately 21 years. 

3. The parties have four children together:-

   i)Mr L born in 1998;

   ii)Mr M born in 2000;

   iii)X born in 2004; and

   iv)Y born in 2008. 

4. The applicant wife commenced proceedings by way of an Initiating Application filed 26 August 2019. 

5. In the initiating application the wife seeks parenting and property orders.

6. The matter came before the Court initially before Registrar Turnbull. In December 2020 the matter came before me for the first time and I made various orders relating to parenting and the preparation of the family report. The family report was ordered to be prepared under section 62G of the Family Law Act 1975 (Cth) (“the Act”). Because of the pandemic there have been delays in relation to the preparation of family reports. By the time of the Interim Hearing on 17 March 2021 the family report had not been prepared. The parties, on 17 March 2021 sensibly agreed to an order by the Court to discharge the earlier order in relation to the preparation of a section 62G report. In its place the parties consented to the preparation of the family report by Ms N. The parties also agreed that the cost of the preparation of the family report would be shared equally and the money would be paid from the conveyancer’s trust account – where there is currently held the net proceeds of sale of the parties’ unit situated in B Street, Suburb C in Brisbane. There remains in that trust account approximately $69,000.

7. At the interim hearing on 17 March 2021 the applicant wife/mother sought orders as set out in her further Amended Application in a Case filed on 10 March 2021.  Broadly speaking, the applicant wife seeks orders for the sale of a CommSec share portfolio (account number ...) and an order that the proceeds of sale which be paid in accordance with paragraph 3 of the further Amended Application in the Case.  It is sought (by the wife) to obtain a partial property settlement so that those funds can be used by the wife to pay legal fees.  The CommSec share portfolio is worth (approximately) a net of $250,000.

8. In addition, in broad terms, the wife seeks the sale of two units situated at F Street, Suburb G (F(1) Street and F(2) Street, Suburb G.  It is said (by the wife) – and I do not understand this to be contested by the husband – that the mortgages on the properties are in arrears.  The Commonwealth Bank has made it clear that if the properties at Suburb G are sold the bank will utilise the entirety of the net sale proceeds to reduce the parties overall debt level.

9. To put this case in a proper context the wife maintains that the net property pool is worth approximately $3.9 million.  The husband maintains that the net property pool is worth approximately $3.5 million.

10. The husband runs a professional practice as a medical professional at O Street in Suburb P, Brisbane.  The wife performs home duties and primarily cares for the children of the parties – especially those who are yet to obtain their majority.  The child Y has special needs having been diagnosed with a medical condition.  Y lives with her mother but does spend three nights each week with the father.  The father maintains that it is not quality time with the child and on 17 March the father sought to agitate parenting matters but the Court has adjourned the hearing of any interim parenting applications until the preparation of the family report. 

11. The husband opposes the sale of the CommSec share portfolio.  The shares which are contained in the CommSec share portfolio are owned by the husband.  He told the Court that he does not want them to be sold because it has taken a long time to build up the portfolio and he still has not recouped all of the money that he put into that portfolio to begin with.  He explained of the Court (Mr Chamblin is a self-represented litigant) that he did not consider there would be any capital gains tax payable in respect of the shares if they were sold now by order of the Court.

12. Mr Chamblin did concede that if the Court determined that the two properties situated at Suburb G should be sold – then the selling agent should be a Mr J of K Real Estate.  Mr Shoebridge of counsel (on behalf of the wife) agreed to using Mr J as the appointed agent for the sale of the Suburb G properties. 

13. In relation to the wife's application for the sale of the CommSec shares – this is the only part of the property pool that can be easily converted into a sufficient amount of cash in order to enable the wife to put her lawyers in funds to represent her properly in these property and parenting proceedings.  There is, of course, the $69,000 sitting in the conveyancer’s trust account.  The wife seeks to utilise that and then utilise the net sale proceeds (or part of the net sale proceeds) of the CommSec shares.

14. I note that the husband continues to work in his profession of health care.  The wife is currently employed part-time by Employer P as a customer service officer.  Prior to the Covid pandemic the wife was earning approximately $50,000 gross per annum.  But the wife was stood down from Employer P on 1 April 2020 and currently receives jobkeeper payments of $467 per week.  Those payments will cease at the end of March 2021.  The wife gives evidence that she received financial support from the husband of $154 per week by way of child support and she is also in receipt of some rental payments from homestay students and Centrelink benefits. 

15. On 22 October 2019 consent orders were made by Registrar Turnbull.  The first order obtained on that day was a so-called "dollar for dollar order”.  At that point in time the wife was represented by her current lawyers (Murdoch lawyers) and the husband was represented by Parry Coates lawyers.

16. A further consent order was made on 25 March 2020 and Mr Looney QC was appointed as arbitrator.  The arbitration did not go ahead before Mr Looney because (it seems) the husband was not happy in relation to the arbitrator's fees. 

17. On 29 April 2020 the husband dismissed his lawyers.  From that point, of course, he was no longer paying lawyers and hence did not have to contribute to the wife’s legal costs in accordance with the "dollar for dollar order".

18. Later in 2020 Mr Kirk QC was chosen by the parties as an arbitrator.  Unfortunately an arbitration did not go ahead before Mr Kirk QC.  There was some issue in relation to whether or not there ought to be a pre-hearing.  The parties were not able to agree.

19. In addition to the two failed attempts to progress the matter by way of an arbitration – I also note ongoing disputes between the parties concerning disclosure of documents.  In addition, there are disputes between the parties in relation to mortgage repayments and in relation to whether or not (for instance) the wife (as alleged by the husband) somehow instigated a "stop order" in respect of the repayment of loans.  There remains (of course) disputes in relation to the interim sale of property and the making by the Court of any interim property distribution. 

20. There are also disputes in relation to parenting matters. 

21. The parties are at loggerheads. 

22. In Strahan v Strahan (2009) FLR 1 the Full Court of the Family Court of Australia considered the making of interim property orders by the Court.

23. The Full Court (in Strahan) was relying upon a decision of Bryant CJ and Coleman J in Gabel v Yardley (2008) 221 FLR 270.

24. In paragraph 113 of Strahan the Full Court stated:-

    “113. There is only one exercise of the power under s 79 of the Act. However, this power may “be exercised by a succession of orders until the power… is exhausted” and the power is exhausted “when there remains no property …with respect to which orders by way of alteration of interests in property could be or have been made”: Gabel per Bryant CJ and Coleman J at [57]. As Finn J in Gabel at [125] said: “it is only the final order, which deals on a final basis with all known property of the parties, which completes the one single exercise of the s 79 power”. Further, an earlier order whether made under s 79(6) or s 80(1)(h) is capable of alteration at any time prior to, or as part of the final exercise of the s 79 power: Gabel per Bryant CJ and Coleman J at [69]–[73] and Finn J at [126].”

25. In the present case before the Court the wife is seeking that the Court make an interim property order pursuant to section 79 of the Act. The particular power to make such property order at this stage of the proceedings is to be found (it seems to me) in section 79 and/or section 80(1)(h) of the Act. Section 80(1)(h) of the Act states that the Court, in exercising its powers under this part (namely part VIII), may do any or all of the following:-

    “(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;…"

1. In the decision of Strahan at paragraph 118 the Full Court stated, inter-alia:-

   “118. We agree with the submissions of senior counsel for the wife in relation to the approach to be taken to the hearing of an application for an interim property settlement order. There are two stages to the hearing of such an application where the power is to be exercised pursuant to s 80(1)(h) of the Act. This is recognised by the fact that although the power under s 79 should ordinarily be exercised on a once only basis, “circumstances may arise before there can be a final hearing” where the power is exercised. Thus the first step is to resolve whether to exercise the power before a final hearing and if it is resolved to do so then the second step involves the exercise of that power.”

2. In Strahan the Full Court concluded at paragraphs 132 and 133:-

   “132. In relation to the first stage, in our view, when considering whether to exercise the power under ss 79 and 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

   133. In Harris at Fam LR 586; FLC 79,930 the Full Court gave some examples of circumstances where it may be appropriate to exercise the power being “where both parties agree to the disposal of some assets pending the trial” and “[u]rgent situations” to avoid injustice. Another example is where, as in this case, one party requires funds to assist in defraying the costs of litigation without which funds an injustice may be caused.”

3. It seems to me that it is an uncontested fact that (perhaps apart from the time when the Covid pandemic forced the husband's practice into a lockdown situation) – the husband's earning capacity is significantly higher than the earning capacity of the wife.  Furthermore, both parties have alleged "controlling behaviour" against the other party.  I have already outlined the number of disputes between the parties in the process of the litigation thus far.  This includes the failed attempts to organise an arbitration and the ongoing disputes concerning disclosure.  Furthermore, the wife already owes $89,551.06 to Murdoch lawyers.  There are further unbilled amounts that will be owing – up to approximately $20,000.  If the matter proceeds to trial on both parenting and property the wife's lawyers have estimated further legal fees of $100,000. 

4. Taking into account the matters referred to in these reasons the view that I have formed is that the wife has satisfied the first step – as outlined in the decision of Strahan.  There is ample evidence to show that, in the interests of justice, the Court should exercise the relevant jurisdiction.  This is one of those cases where "one party requires funds to assist in defraying the costs of litigation without which funds an injustice may be caused."  (Note paragraph 133 of Strahan).

5. The second step outlined by the Full Court in Strahan is also referred to as the "substantive step".  Once again the Full Court pointed out that there is not a requirement to show "compelling circumstances" in relation to the substantive step.  The Full Court noted (paragraph 135 of Strahan) that as it is the jurisdiction under section 79 of the Act which is to be exercised – "the provisions of that section must be considered and applied but with limitations given that it is not the final hearing". 

6. As to the matters relevant under section 79 – this is, necessarily, a circumscribed consideration of those matters. The net property pool is at least (on the husband's admitted estimation) worth approximately $3.5 million. I note the property pool annexed to the wife’s affidavit, filed 10 March 2021. In that property pool, the wife estimates $3.9 million net. But I will have had regard to the amount conceded by the husband (for present purposes), namely the net pool of $3.5 million.

7. The parties were together for approximately 21 years. On the material that has been filed both parties have made contributions to the property pool. On 17 March 2021 the Court granted to the parties leave to provide further written submissions in relation to matters outlined in the order made on that day. The Court has taken all of those submissions into account. Mr Shoebridge, counsel on behalf of the wife submitted that – after such a long marriage the wife will be entitled to a property adjustment of at least 50% in her favour and more likely a higher amount in her favour because of the disparity in earning capacity and other section 75(2) factors.

8. The self-represented husband has submitted that he will be entitled to 75% of the net pool and the wife will be entitled 25% of the net pool. 

9. I should note that the view that I have formed is that the first requirement referred to by the High Court in Stanford v Stanford (2012) 247 CLR 108 has been satisfied. It is just and equitable to make an interim property order and, I apprehend, on the current state of the evidence, it will also be just and equitable to (eventually) make a final property order under section 79 of the Act. The parties no longer live together. Their property interests are intertwined. It is just and equitable to make an order.

10. I do think that Mr Shoebridge’s estimate of a likely outcome is (having regard to the current state of the evidence) significantly closer to the mark than the husband's current submission as to the outcome of the proceedings. Even if I work on the basis of 50-50 outcome – this will see the wife entitled to a net property distribution of approximately $1.75 million (at least). The wife seeks an interim property order of somewhere between $180,000 - 220,000 – primarily to assist her with the payment of legal fees. This is well within the likely range of property that will be available to the wife. I have had regard to all of the relevant subsections in section 79 and section 75(2). I do not – within the context of this interim hearing – intend referring to each and every subsection. Needless to say that the likely disparity in earning capacities between the parties looms large. When I have regard to the pool, to contributions and to future needs and justice and equity – the kind of interim property order I propose making is just and equitable and well less than the likely eventual entitlement of the wife at the time of the final property hearing.

11. I should point out that it is clearly in the interests of justice a great benefit for the wife to be represented in these proceedings.  It will enable the proceedings to be conducted more smoothly.  I have outlined already a large number of reasons that support the making of the orders sought by the wife.  The conflict between the parties during the course of this litigation has been significant.

12. I should add that, if the husband had similarly applied for an interim property distribution to assist him in respect of the payment of legal fees then I would imagine that (subject to submissions by the other side and any argument which remains), the Court would probably be inclined to favourably consider such an application.  I did (if I recall correctly) mention this to the husband during the hearing on 17 March 2021 but he did not seem (at that stage) to be keen on the idea. 

13. The precise arrangements in relation to the care for the youngest child (Y) are yet to be determined. At present the mother cares for the child four nights per week and the father three nights per week. I raise that factor here because that, of course, is a matter relevant to section 75(2) (in relating to future needs and any adjustment under that subsection).

14. It will be apparent that I've come to the conclusion that in the interests of justice an interim property order should be made to assist the wife with the payment of legal costs and the ongoing anticipated payment of legal costs.

15. I also agree with the submissions made on behalf of the wife that the correct approach is to order that the husband sell the shares held by him in the CommSec account to the extent necessary.  An order will also be necessary concerning the balance of the funds held in the conveyancer’s trust account in respect of the net sale proceeds of the property at Suburb C.

16. The husband seemed to continue to maintain a position during the hearing on 17 March that he would agree to the sale of the Suburb G units – but conditional upon the Court not making an order for the sale of the CommSec shares. This is an illogical submission. The evidence from the Commonwealth Bank (contained in emails annexed to the wife’s affidavit, filed 10 March 2021) made it clear that upon the sale of the Suburb G units the Commonwealth Bank intended utilising all the net sale proceeds from those sales to reduce debt. I'm also of the view that those Suburb G unit should be sold. The evidence (which is not contested) is that the mortgage repayments in respect of those units at Suburb G are in arrears to the extent of more than $100,000. The parties have different submissions as to how that has come around. It is irrelevant at the moment as to who is to blame for that current predicament. What is agreed between the parties is that the Commonwealth Bank has referred the family’s finance situation to its "risk team". The bank is concerned about the debt level. The sale of those units and the payment down of debt is also a desirable approach to take at the moment. It is an order that can be made pursuant to section 80(1)(h). It could be said it is an adjustment or a readjustment of property interests of the parties (pursuant to section 79). The sale of properties in which the parties have a certain amount of equity and the movement of that equity to reduce the parties' debt – that aspect of the case (the sale of the Suburb G units) was not seriously contested by the husband. If it is necessary to do so – I rely upon the reasons provided relating to step one and step two concerning the exercise of the power contained in section 80(1)(h) in combination with the jurisdiction under section 79. It is in the interests of justice of such an order to be made. It is also just and equitable.

17. For clarity, in relation to the sale of the shares in the CommSec account and in relation to the sale of the Suburb G units – the view that I have formed is that the proposed interim property orders are just and equitable.  There will, of course, be brought to account in the balance sheet at the final hearing an entry that recognises that the wife, at this stage of the proceedings, has received a partial property settlement.

18. In case it is not already clear from the foregoing reasons – the shares held in the CommSec account needed to be sold because that was the only way to obtain a readily identifiable cash amount to satisfy the orders sought by the wife.  The equity in the units at Suburb G could not have been utilised to assist the wife with the payment of her legal fees because (as already noted more than once) the Commonwealth Bank intends utilising the net sale proceeds of the Suburb G units and, hence, that equity will not be made available to the parties.  I do recall that the husband made a submission on 17 March 2021 about the possibility of him obtaining some other finance to address that issue.  There was no evidence provided by the husband in relation to any concrete or advanced steps that he has taken in order to achieve such an outcome.  The Court is required to deal with the application brought by the wife which is currently before the Court. 

19. I have not specifically referred to the well-known four (or five) step process generally referred to in a section 79 decision. I have though, considered each of those steps and that will be apparent from a close reading of these reasons.

20. I do note that in the Full Court's decision in Strahan the Court identified a "third matter" from the earlier decision of the Full Court In the Marriage of Harris (1993) 113 FLR 472. It was variously described as the “adjustment issue” or “clawback issue”.  It is the case (in this matter before the Court) that there are sufficient funds in the property pool to vary or reverse the interim order – “without resort to section 79A of the Act or Appeal.”  I'm referring here to paragraph 136 of the decision in Strahan.  The Full Court also relied upon the earlier decision of In the Marriage of Zschokke (1996) 20 FamLR 766. I particularly note the acceptance by the Full Court (in Strahan) of Finn J’s comments at paragraph 126 in the Gabel decision – to the effect that the interim order must be “capable of alteration at any time prior to, or as part of, the final exercise of the section 79 power”.

21. As I have already indicated, that particular requirement is readily demonstrated by the evidence in this case.  The property pool is sufficiently large to "cover" or "recover" the proposed interim property order. 

22. I agree (in broad terms) with the orders sought by the wife in the further Amended Application in a Case filed 10 March 2021.  I will issue orders which reflect these Reasons for Judgment.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 1 April 2021