Con and Wia

[2010] FamCA 1238

FAMILY COURT OF AUSTRALIA

CON & WIA [2010] FamCA 1238

FAMILY LAW – PROPERTY – Interim

Family Law Act 1975 (Cth)

APPLICANT: Mr Con

RESPONDENT: Ms Wia

INTERVENOR: YY

FILE NUMBER: MLC 9809 of 2009

DATE DELIVERED: 15 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT: Robinson Gill

COUNSEL FOR THE RESPONDENT: Mr Cantwell

SOLICITOR FOR THE RESPONDENT: Westminster Lawyers

2^ND RESPONDENT In person

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9809 & 2009

MR CON

Applicant

And

MS WIA

Respondent

And

YY
Second Respondent

REASONS FOR JUDGMENT

1. The husband’s application was filed on 26 October and the contentious issue relates to the valuation of, and sale of, a food business in the city.  There was also an application, originally seeking orders for litigation funding of $25,000.  Having regard to the Full Court’s decision in Strahan, counsel quite sensibly did not proceed with that application but sought, by way of oral application, that the business be sold, after which consideration might then be given to a distribution. The wife simply sought that the husband’s application be dismissed.  Each of the parties has filed an affidavit, which I have read, and each of the parties has made submissions by counsel.

2. So far as the issues are relevant, from the husband’s point of view, he said that he helped the wife in China with her business.  The difficulty with that is that the wife says that the parties commenced cohabitation in August 2005 and he says that it began in 2002.  The wife’s version is that the help to which he was presumably referring was that he was an employee of the business.  There is some significance in that because of the fact that, from the money that apparently came from that business, the parties came to Australia, and from their arrival have, in fact, purchased property.  This case revolves around three specific parcels of property.  The first relates to a property in the city.

3. The wife’s evidence is that the property was purchased for $335,000 plus costs, of which $260,000 came from the Westpac Bank and $114,000 came from her sister, which she says is still an outstanding liability.  The husband disagrees.  I am unable to determine that issue, today.  The second property relates to a residence, apparently, in the western suburbs.  The wife’s position is that this is the daughter’s property.  She says that it was purchased for $570,000 plus costs, of which $427,000 came from a Citibank mortgage and the balance came by way of what might be described as the daughter’s inheritance from her late father, which was around $175,000.  The husband seems to deny that.

4. There is no objective evidence in respect of either of those two properties today.  In respect of the business concerning the food business, clearly, the money came from China, but just whose money it was remains to be seen in the future.  In respect of that money, the wife said that the property was purchased for around $380,000.  She said that she purchased it in May of 2007, put it on the market in October 2009 using an agent, which was unsuccessful and, ultimately, has endeavoured to sell the property privately herself.  At this stage the only offer she has had has been between $280,000 and $290,000 and she has rejected that, having regard to the fact that it was originally purchased for $380,000.

5. The wife has also said that the reason why she does not want to sell it, by way of a forced sale, is that it is her source of income, albeit that her taxation returns only show that she earned $15,000, but there is also a part-time role for her daughter, at $10 per hour.  One of the difficulties in an application like this is that I am unable to determine controversial facts.  Importantly, therefore, I am unable to assess whether the Court might, in fact, ultimately, order that the husband have a share in any of the assets, let alone a share of the business. 

6. The power to sell a property lies in section 114 of the Act. It is, effectively, by way of a mandatory injunction. The only requirement in section 114 is that the Court is satisfied that it is proper to make the order. There has been a traditional argument in relation to interlocutory injunctions and this is such an application, that the applicant has to show that there is a right to the substantive property entitlement which needs to be protected by the injunction. I think the better view, of late, is that section 114 of the Family Law Act is sufficiently wide and can be interpreted so that a person can assert a claim and, therefore, has a right to endeavour to protect it. 

7. Here, the wife, although she had the business on the market, does not wish to sell it at a forced sale.  I can see some sense in that if, in fact, the husband’s entitlement is unclear.  It may be that she decides not to sell it, in due course, if, in fact, the husband does not have an entitlement to it.  Similarly, there is no point in evaluation for litigation purposes, where the hearing date is some time away.  The hearing, in this case, seems to be getting further away because the discovery issues are still unresolved.  In saying that, I appreciate very much that there may be documentary evidence that is hard to establish or, in fact, there is no documentary evidence, such that the issues might be made clearer. 

8. In the circumstances it seems to me that it would not be proper for me to make an order under section 114 of the Family Law Act.  It is important in this case, however, that the Court has control of the process.  In that regard, I propose to bring the matter back, as I discussed with counsel, so that the questions of whether the discovery process are completed can be resolved. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on Wednesday, 15 December 2010.

Associate: 

Date:  18 January 2011