Chapman and Chapman

[2012] FamCA 15

FAMILY COURT OF AUSTRALIA

CHAPMAN & CHAPMAN [2012] FamCA 15

FAMILY LAW – PROPERTY - Interim dispute about the possession and use of a motor car

Family Law Act 1975 (Cth)

APPLICANT: Mr Chapman

RESPONDENT: Ms Chapman

FILE NUMBER: MLC 8480 of 2011

DATE DELIVERED: 25 January 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nikou SC

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Mr Marchetti

SOLICITOR FOR THE RESPONDENT: Nicholes Family Lawyers

Orders

1. That the husband and the wife forthwith do all things necessary to sell the Porsche motor vehicle in the possession of the wife and upon the settlement of the sale, the proceeds be used to discharge any encumbrance affecting the vehicle and the net proceeds thereafter be retained by the wife.

2. That all interim applications are otherwise dismissed.

3. That all applications for final orders await an allocation to a judicial docket.

4. That the conciliation conference fixed for 30 January 2012 is vacated.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chapman & Chapman 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 MELBOURNE

FILE NUMBER: MLC 8480  of 2011

Mr Chapman

Applicant

And

Ms Chapman

Respondent

REASONS FOR JUDGMENT

1. Mr Chapman (“the husband”) and Ms Chapman (“the wife”) seek a discrete ruling and orders relating to the use of their motor cars. Other financial issues which really brought the matter before the Court were resolved. It is important to give credit to the parties for achieving that because their financial position is dire and each needs a resolution quickly. That urgency also infected the motor car issue. Despite that, I propose to order the sale of one car as both parties agreed on that but to otherwise dismiss both of their applications.

2. The husband is a 60 year old professional person. He has practised his profession for many years but is currently suspended from practising his profession. The evidence of his inability to work in his profession and also his age make bleak reading. I do not understand what his future holds and whilst it was said by his counsel that there were “delicate” negotiations going on with his workplace, I am none-the-wiser about his current or future financial circumstances.

3. The wife is 59 years old and employed in a clerical role. Until recently, she was working two days per week. The evidence shows that economic circumstances have necessitated her increasing those days to 4 days per week but that requires her to travel to two positions across the eastern suburbs. Even with the increase, she still only earns $800 per week. There is a serious problem looming for the wife if she desires to continue to live the lifestyle to which she was apparently accustomed. The husband’s counsel said that the husband had complained before separation that the family was living beyond its means. That statement has a hollow ring about it having regard to the husband’s role as the main financial provider.

4. Jointly, although the legal titles may suggest otherwise, the parties have virtually no equity in any assets. Their house is to be sold and it was common ground that there will be virtually nothing left after the secured encumbrances are discharged. There are chattels about which there is an unpleasant dispute. There is negligible superannuation. The parties have no savings or investments and it may be that the husband faces a significant debt from his current professional practice. As at this time, that debt is unclear. It seems uncertain whether the business can trade out of its financial position. It is that financial problem that has caused or contributed to the suspension from practising their profession by those in charge of the business. 

5. These discrete proceedings commenced with the husband filing an application in a case on 14 December 2011. Relevant to the motor car issue, the husband sought that the wife’s Porsche motor vehicle be given to him to sell and for the proceeds to be used to discharge the lease. The balance thereafter, if any, is to be paid to the wife as a part property settlement. It was also common ground that the equity in the Porsche was between about $7,000 and $12,000. That was from the “Red Book” valuation.

6. The husband relied upon two affidavits filed 14 December 2011 and 19 January 2012 respectively. The first of those affidavits did not specifically address the motor car issue; it was directed to the dire financial situation. That evidence was not seriously challenged by the wife. In reality, her position was that she just did not know.

7. The second of the affidavits further addressed his financial plight generally. Thus, in respect of both affidavits, the evidence about the motor cars remained silent.

8. The husband’s case was succinctly put by counsel on the basis that a solution had to be found because of the general financial plight of the husband as set out in the affidavits.

9. The wife was given leave to file a response and supporting affidavit material. In respect of the motor car issue, the wife sought orders similar to the husband that the Porsche be sold, the lease paid out and she retain the remaining funds.

10. Thus, both parties sought the same orders about the Porsche. It is also clear on the evidence of both parties that neither can retain the Porsche if there are monthly payments of $716 to be made. The husband has no income. The wife has to move out of the home and re-accommodate herself and her position was that she could not afford to make the Porsche commitment.

11. The husband has retained the Toyota motor car which has a value of about $47,000 to $52,000 and which carries an encumbrance of about $26,000. The encumbrance carries a monthly commitment of about $500 per month. The wife’s submission, although not supported by any evidence that I could see, was that she could pay for the Toyota but not the Porsche. The difference was said to be about $216 per month. Such is the finite nature of the parties’ commitments and financial capacities.

12. There was some spurious argument that the wife had driven the car when the parties were together but that was a considerable time ago and as such, of no relevance. The Porsche was given to her by the husband as a birthday present.

13. There was also some argument canvassed by both parties that the husband could or could not get back from the parties’ adult son an old motor car which they both agree was given to that son and who now lives in Queensland. That suggestion had little to commend itself.

14. The submission for the husband was that although he was not working, he had to obtain income and therefore needed a vehicle. The submission for the wife was that the husband lived close to the central business district and could walk to work whereas she had to drive significant suburban distances to maintain her employment and its consequent modest income.

15. The difficulty I have is that there is no evidence that either party could satisfactorily meet the lease obligations in relation to the Toyota. It may be that if it remains with the husband, it will be repossessed. If it went to the wife, she too may not be able to meet the obligations notwithstanding her optimism. The evidence just does not support either party’s contention.

16. The wife’s position is that she will sell the Porsche and have a small amount of money left. The husband pointed to that and said that she should be realistic and buy a second-hand car. The wife’s argument was that with the orders for the sale of the home, she has to relocate and the funds from the sale of the Porsche will be all she will have.  From her perspective, a second-hand car is not an option even if a reliable one could be found.

17. The husband’s counsel submitted that no-one could say what was going to happen with the husband’s ability to support himself other than that he would try to obtain employment. It seems that at least for the next nine months, he cannot practise in his profession.

18. Senior Counsel for the husband pointed to the fact that the wife’s mother is aged 90 and has accommodation and wealth. That is not a matter which I could (or should) consider relevant as it is neither the mother’s obligation to provide for her daughter nor the wife’s obligation to pursue that avenue when there are other siblings. That evidence did little to assist.

19. This is a dispute therefore about what the court should do on an interim basis. Notwithstanding the emotional problem of the parties reeling from their significant fall from affluence and the emotional arguments each presented, the matter has to be determined according to the law and the remedies available to me.

20. This is not an application for property division other than the agreed payment to the wife of the equity in the Porsche. It is not an application by either party for spousal maintenance by way of orders for the provision of a motor car. In reality, it is an asset protection type of order where each party concedes that in due course, the equity in the Toyota will have to be added to the already meagre asset pool.

21. The power of the Court to do anything here lies in s 114 of the Family Law Act 1975 (Cth) (“the Act”). That provision so far as it is relevant, provides that in proceedings for a division of property, the court may make such injunction as it considers proper with respect to the matter to which the proceedings relate.

22. The evidence is controversial. In an interlocutory application, I cannot make any determination on such disputed evidence. I do not know whether the husband can make the Toyota payments and there has to be a possibility of its repossession. I do not know whether the husband needs a car more than the wife notwithstanding his close residential proximity to the Melbourne CBD.

23. I cannot determine whether the wife can make the Toyota payment even though it is asserted that she cannot make the Porsche payment. I have no evidence as to what her relocation expenses will be from the former home nor do I have any idea what net equity will be left in that home after its sale. I do not know on the evidence whether her requirement for a reliable car to enable her to continue to earn her modest income could be met from the equity left after the sale of the Porsche. If I was required to make findings on these matters, they would amount to guesswork.

24. The standard of proof is the balance of probabilities; that is, what is probably the right version? The onus of proving the case to the requisite standard lies with the party seeking the relevant orders. In this case, that is the wife.

25. On the evidence, the wife has not satisfied me to the requisite standard and as such, I could not say that an injunction of the type pursued by the wife is proper.

26. The wife’s application for the husband to provide the Toyota to her is therefore dismissed. The applications for other interim orders are similarly dismissed.

I certify that the preceding Twenty Six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 25 January 2012.

Associate: 

Date:  25 January 2012