Cord and Cord
[2013] FMCAfam 61
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CORD & CORD | [2013] FMCAfam 61 |
| FAMILY LAW – Property – interim application for property distribution pending final hearing – husband seeks sale of parties’ former family home prior to final hearing of competing applications for settlement of matrimonial property – husband proposes each party receive payment of $100,000.00 upon sale of property with proceeds, after payment of expenses to be invested prior to trial – wife seeks to retain property following hearing – husband asserts such an outcome impossible given nature of each parties’ contributions up to this point – parties have been separated for in excess of two years – since separation wife has lived in subject property with children of the marriage with the acquiescence of husband – husband has made significant contributions towards payment of outgoings on property – wife has limited income – husband asserts that when child support issues are considered he has no capacity to continue to pay outgoings on subject property – husband further contends that the wife has no capacity to acquire what must be his significant interest in property – matters to be considered – justice and equity – interests of justice – whether appropriate to make such an order. |
| Family Law Act 1975, ss.75(2), 79(1), 79(2), 79(4) & 80(1)(h) |
| Stanford v Stanford [2012] HCA 52 Strahan v Strahan (2010) 42 Fam LR 203 Wenz v Archer (2009) 40 Fam LR 212 |
| Applicant: | MR CORD |
| Respondent: | MS CORD |
| File Number: | MLC 4542 of 2012 |
| Judgment of: | Brown FM |
| Hearing date: | 11 December 2012 |
| Date of Last Submission: | 11 December 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 29 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Keen |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondent: | Mr Berman SC |
| Solicitors for the Respondent: | Norman Waterhouse |
ORDERS
The application filed by the husband on 29 November 2012 in which he sought the sale of the parties’ former family home located at Property W, [W] and the distribution of proceeds prior to the hearing of the parties’ competing application for final orders dividing their matrimonial property estate is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Cord & Cord is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
MLC 4542 of 2012
| MR CORD |
Applicant
And
| MS CORD |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to an application for interim or partial settlement of matrimonial property. The applicant in the proceedings Mr Cord “the husband” seeks an order that a property located at Property W, [W] be sold as soon as practicable.
The respondent to the application is Ms Cord “the wife”. The property concerned is the parties’ former matrimonial home. The wife opposes the application and seeks its dismissal.
By way of background, the parties were married in [omitted] on [date omitted] 1997. They were divorced, by order of this court, on 5 July 2012. The parties are the parents of three children, [X] born [in] 1998; [Y] born [in] 2001; and [Z] born [in] 2004.
The husband commenced proceedings, in this court, on 6 August 2012 seeking final orders for property settlement and parenting orders in respect of [X], [Y] and [Z]. On an interim basis, he sought an order restraining the wife from removing the three children from the Commonwealth of Australia.
In his initial affidavit filed in support of this application, the husband deposed that he was fearful that the wife may be planning to take the three children to the United States in September. In response to what he asserted was the urgency of the situation, the court listed the matter on 16 August 2012.
On this occasion, the wife consented to an order placing the children’s names on the Airport Watch list. Other orders were made of a procedural nature, the chief of which was that the parties were referred to a conciliation conference on 23 November 2012. The conciliation conference failed to assist the parties to reach a concluded agreement about the division of their matrimonial property.
It is common ground between the parties that they finally separated on 2 November 2010. Since that time, the wife has lived in the Property W, [W] property and the husband has lived in a nearby property, located at [omitted].
On 29 November 2012, the day prior to the date on which the case was due to return to court, the husband filed an amended application. On a final basis, he seeks orders that the three children live in what is commonly called an equal time arrangement, living week about with each of their parents, following the application of the presumption of equal shared parental responsibility created by section 61DA of the Family Law Act.
In terms of the final property orders sought by him, the husband seeks to be excused from particularising his case, at this stage, pending the resolution of valuation and disclosure issues between him and the wife. Rather he seeks a just and equitable outcome.
Relevantly, in the context of the current proceedings, in his amended application, on an interim basis, he seeks the following orders:
“That the husband and wife do all things and sign all documents necessary to cause the former matrimonial home situate Property W, [W], to be sold on terms to be agreed and failing agreement, as may be determined by the Listing Agent and the proceeds of sale be distributed as follows:
first, in payment of agent’s commission and costs of sale;
second, to discharge the first mortgage in favour of the [Mr Cord] Trust;
third, the sum of $100,000 to each of the husband and wife on account of their ultimate property entitlements;
fourthly, the remaining proceeds to be held in trust and invested in the joint names of the parties pending Orders for final settlement.”
The wife filed her responsive documents to the husband’s initiating application, on 26 October 2012. She has not as yet amended her application. Like the husband, she currently seeks order in respect of the settlement of matrimonial properties orders. Again, like Mr Cord, she seeks that the court makes an order for final property settlement, as the court deems appropriate. Accordingly neither party has provided concrete specifics as to how their property is to be finally divided between them.
At present, the children concerned are living with their mother for nine nights per fortnight, during the school term, and with their father for the remainder. In the short term, although this arrangement remains controversial, the parties are each prepared to continue it, at least until such time as a family assessment report has been prepared.
The parties have agreed to commission such a report, which will examine the nature of the children’s relationship with each of their parents; any views or preferences the children may have; and the workability of the shared parenting regime sought by the husband.
The family assessment report is due to be completed around April of 2013. A final hearing of the parties’ competing applications has been scheduled for 3 and 4 June 2013.
It is in this context that the husband’s application for the sale of the [W] property must be considered. Such a sale would represent an interim property settlement pending the final hearing scheduled in about six month time. As with all excises of the court’s power to make an order altering the property interests of parties to a marriage, the court must consider whether it is just and equitable, to make such an order pending final hearing.
Background
The wife is an [omitted] by profession but has not worked since [X] was born in 1998. She has been engaged as a full time homemaker and parent, since that time. The parties agreed that the husband would be the family’s main breadwinner, whilst the wife would tend to the needs of the home and children.
The husband is employed, as a [omitted], by an enterprise known as [C]. [C] is owned and operated by his parents. The husband provides the figure of $3,225.00 as his gross weekly wage, which equates to an annual salary of $167,700.00.
The parties agree that their most significant asset is the [W] property. It is worth approximately $1.2 million and is subject to a mortgage in the sum of $400,000.00. The mortgagees concerned are the husband’s parents. The mortgage does not accrue interest.
The children each attend private schools. These fees are paid by Mr C Senior. The wife has a motor vehicle of modest value; negligible superannuation; and the furniture contained in the former family home. She is currently dependant on the husband for the vast majority of her recurrent financial expenditure. She has some limited income from employment as a [omitted].
At present, the husband estimates that he pays an amount of $1,304.00 per week, which benefits the wife, [X], [Y] and [Z]. The wife believes that it is a lesser sum but concedes that the husband (or his parents) are paying the outgoings in respect of the [W] property and health insurance payments.
As previously indicated, the husband lives a short distance away from the former family home. The property in which he lives was purchased by a corporate entity controlled by his parents. It is the husband’s position that he pays rent for the property on a commercial basis, together with other recurrent outgoings in respect of the property. He calculates the rent to be $570.00 per week.
The wife has applied for an assessment of child support in respect of the three children concerned. The assessment, which was issued on 15 June 2012, was based on a child support income of $191,962.00 for the husband and $20,000.00 for the wife.
From the husband’s point of view, the care arrangements for the children, on which this assessment has been based, are controversial. He asserts that the wife has provided the Agency with an inadequate account of the time the children spend in his care.
Accordingly, he asserts that the monthly rate of child support in the sum of $2,563.00, which he is currently assessed to pay, is erroneous. It is further his position that this sum, when combined with the other sums he is paying on behalf of the wife and children, in respect of her occupation of the [W] property, is a financial burden beyond his means.
Accordingly, it is the husband’s position that the parties’ current financial circumstances are untenable and must mean that the former matrimonial property must be sold as soon as is practicable. Essentially, he asserts that neither he nor the wife can continue to pay the outgoings in respect of it. By necessary implication, he asserts that it is impossible for the wife to acquire what must be his significant interest in the property concerned.
In his affidavit material, the husband deposes as follows:
“…I say that the sale of the former matrimonial home is inevitable. I propose that same be sold and that each of the Wife and I receive the sum of $100,000 on account of our property entitlements. This will enable the Wife to obtain accommodation and neither party will be prejudiced by its sale. It will also enable each of the Wife and I, immediately property division is resolved to consider our options regarding entering the property market without having to wait for consequential sale which as I say above, is inevitable in any event”.[1]
[1] See husband’s affidavit filed 29 November 2012 at paragraph 34
The wife opposes the application for sale of the [W] property. In her affidavit in response, she deposes as follows:
“…I oppose the immediate sale of the former matrimonial home. The children and I currently reside in the former matrimonial home and wish to reside in the property until final orders are reached in relation to property settlement.”[2]
[2] See wife’s affidavit filed 4 December 2012 at paragraph 22
It is the wife’s position that there is not the degree of urgency, in the matter, characterised by the husband. She points to the fact that the parties have been separated for a significant period of time and, as a final hearing date has been fixed, the court should avoid multiple hearings in respect of property issues.
Given that she and the children occupy the [W] property, and have done since the parties separated in November 2010, she would characterise the husband’s application to sell the property as being “punitive”. In particular, the wife points to the fact that the husband is unable to point to any significant change in the financial circumstances of the parties since their separation.
Firstly, there is no evidence to indicate that there has been any demand for payment made by Mr and Mrs C Senior in respect of the mortgage on the property. To the contrary, the uncontroverted evidence of the parties is that no payments have been made in respect of the mortgage for some time. In all these circumstances, the wife asserts that there is no significant prejudice likely to befall the husband if his application is deferred until the time scheduled for the final hearing.
However, the wife’s most significant argument, in opposition to the application for the immediate sale of the [W] property, is a more subtle one. As previously indicated, she has not as yet fully delineated her application for property settlement. In these circumstances, it is the submission of senior counsel, on her behalf, that it is open to her to seek to retain a sum close to 100% of the pool of matrimonial assets, in settlement of her claim.
Such an outcome would not automatically exclude her from retaining the [W] property outright. In these circumstances, Mr Berman argues that, for the court to exceed to the husband’s interim application, there exists the potential for the wife to suffer irremediable prejudice in the period leading up to the final hearing.
The legal principals applicable
The controversy arising between the parties, regarding the sale of the [W] property, occurs at the interim hearing stage. Accordingly, the resulting hearing before me took place in a truncated or shortened form, where the only evidence available to me was in the form of the parties’ respective written affidavits.
In addition, as previously indicated, neither party currently has well delineated proposals as to how their marital property is to be divided pursuant to the applicable legislative provisions.
At this interim hearing stage, there was not sufficient time to allow additional oral evidence, particularly in the form of cross examination. Accordingly, it is difficult if not impossible, for the court to resolve issues in factual disputes between the parties as this stage.
It would seem that factual disputes do arise between the parties currently, the chief of which is the nature of the husband’s financial relationship with his parents. This dispute may ultimately have ramifications as to how the court assesses the prospective needs of the parties, pursuant to the provisions of section 75(2) of the Family Law Act.
Part VIII of the Family Law Act is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in sections 79(1); 79(2); 79(4); & 75(2) of the Act. These provisions apply both at the interim and final stage.
Pursuant to section 79(1) the court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
Pursuant to section 79(2) the court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing.
Section 79(4) provides the mechanics of how a court is to make an order altering marital property interests. It provides seven matters to be considered, as relevant.
Paragraphs (a); (b); and (c); categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the court to take into effect of any order upon the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the court to consider a list of matters contained in section 75(2), which are germane to spousal maintenance. Finally, Paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
In general terms, the provisions have been held to provide a process to be followed by the court, in each case, for the division of martial property. Firstly and self explicitly, it is necessary for the court to identify the extent of the property to which any order made pursuant to section 79 will apply.
Secondly, pursuant to section 79(4)(a) – (c), the court must ascertain the varying contributions, which each party has made towards the assets identified following the first step. Contributions fall into two broad categories.
The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.”[3]
[3] See Family Law Act s79(4)(c)
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 75(2) of the Family Law Act 1975. Pursuant to section 75(2)(o), the court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
The High Court has recently considered the operation of section 79 in Stanford v Stanford.[4] It said as follows:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition[5]. It is not possible to chart its metes and bounds.”[6]
[4] See Stanford v Stanford [2012] HCA 52
[5] Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 at 608 per Gibbs CJ
[6] Ibid at paragraphs 35-36
Accordingly, the High Court has directed that the overriding responsibility imposed on the court by section 79, is to consider whether it is just and equitable to make any order whatsoever altering the proprietary interests of marital partners. In this context, the High Court said as follows:
“…whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down"[7]. To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.”[8]
[7] R v Watson; Ex parte Armstrong[1976] HCA 39; (1976) 136 CLR 248 at 257
[8] Ibid at paragraph 40
Section 80 of the Act provides the court with what are described as general powers. In particular section 80(1)(h) empowers the court to make an order pending the disposal of proceedings. However, it is clear that the same principles, set out above, apply both at the interim and the final hearing stage.
In Strahan, apropos the making of an interim property order, the Full Court said as follows:
“Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in section 79(4) including by reference to s 79(4)(e) the matters in section 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that ‘it seems likely to the Court that…the applicant…will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made.”[9]
[9] See Strahan v Strahan (2010) 42 Fam LR 203 at 230 [137]
In general terms, bearing in mind the limited nature of an interim hearing, the court is required to follow the process prescribed by section 79(4) in respect of both final and interim matrimonial property proceedings. Accordingly, it is necessary for the court to consider whether it is just and equitable to make such an order and whatever order is made must be referable to the criteria set out in section 79(4).
Accordingly, the court must make some assessment of the parties’ various contributions to the pool of assets in question and importantly must have regards to any applicable factor arising under section 75(2). Necessarily, any interim order must be referable to the final order made in the case concerned, as both depend on the exercise of the same power.
Given these circumstances, the Full Court of the Family Court has pointed out that, as there can be only one exercise of the power under section 79 of the Act, it is usually preferable that there be only one final hearing of section 79 proceedings, rather than a succession of subsidiary provisional hearings.[10]
[10] See Strahan v Strahan (2010) 42 Fam LR 203 at 230 [114]
In Strahan, the Full Court considered an earlier decision of the Full Court Harris & Harris.[11] In this case, the Full Court delineated the relevant considerations applicable to the making of what is conveniently described as an interim property order. The Full Court, in the case, considering it unnecessary to draw a distinction, in terminology, between an interim order and a partial order.
[11] See Harris & Harris (1993) FLC 92-378 at 79,930
In Harris, the Full Court, whilst affirming the preference that there be only one final hearing of property proceedings, identified three criteria applicable to the exercise of the power to make an interim property order namely:
·the exercise of the power should be confined to cases where the circumstances at the time were “compelling”;
·the exercise of the power, depending as it did on section 79 of the Act, must be exercised within the parameters provided by that section, notwithstanding the difficulty arising for any decision maker concerned in making final findings;
·the exercise of the power must be exercised “conservatively” in the sense that any remaining property needed to be sufficient to meet the “legitimate expectations” of both parties at final hearing, or the order being contemplated is itself capable of being reversed or adjusted at a later stage, if necessary.
In Strahan, the Full Court affirmed Harris in the sense that it accepted that an interim property application comprised a two-step process. Firstly what was described as an “adjectival stage” and secondly what was described as the “substantive stage”. The first step being concerned with the description or particularization of the circumstances required to be established before an interim property order was made. The second step dealing with the mechanisms applicable to the making of such an order.
The controversy ventilated in Strahan centred on the phrase “compelling circumstances” used in Harris and whether such a formulation unduly fettered the court’s power to make an interim property order, which was “appropriate” at that stage of proceedings. This being the expression used in the enabling provision contained in section 79(1) of the Act.
In this regard, the Full Court said as follows:
“In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 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.”[12]
[12] Strahan v Strahan (2010) 42 Fam LR 203 at 236 [132]
In reaching this conclusion, the Full Court noted the idiosyncratic nature of litigation, under the Family Law Act, when compared with other civil litigation. In the former, there was often a marked imbalance in the power of the parties concerned and artificialities in how property available to be divided was legally controlled in the period leading up to final hearing.
In this context, the Full Court approved comments of Riethmuller FM in Wenz v Archer[13] as follows:
“It cannot be the case that a party who has an irresistible claim to a substantial share of the property of the parties should be held out of that property while the matter is litigated, left to rely upon applications for exclusive occupation of the matrimonial home or spousal maintenance alone, particularly where the parties are asset rich but have relatively modest incomes (such as the present case). Nor could it be appropriate that a party should be denied the ability to liquidate assets when there are real needs for those resources, such as to meet debts which may result in the party being pursued by creditors, or the need for the party to make payments for the benefit of the children, or to take advantage of other financial opportunities (for example the superannuation contribution cases).”
[13] See Wenz v Archer (2009) 40 FamLR 212 at 223 [53]
In terms of the second or substantive phase, the Full Court in Strahan confirmed the second and third considerations delineated in Harris, namely that the relevant provisions of section 79, including section 75(2) needed to be considered and so far as any adjustment made, at this stage, it needed to be capable of reversal or to be clawed back at a later stage.
Examples of where it may be appropriate to use the power to make an interim property order include where both the parties agree to the disposal of some assets pending trial; urgent situations to avoid injustice being wreaked upon one party if the power was not exercised; and where one party requires funds to assist in the defrayal of legal costs arising from the litigation involved.[14]
[14] See Strahan (ibid) at [133]
The discretion to make an interim property order must be closely considered, bearing in mind the different nature of an interim, as opposed to a final hearing, which nonetheless involves the exercise of the same power. Riethmuller FM expressed the dilemma arising in this way:
“…Because the orders under s.79 are the exercise of such a broad and complex discretion, generally the interests of the parties are better served by there being one final hearing under s.79. If the s.79 proceedings are not completed in one decision various options may not be left open and therefore the Court may not be able to ensure that a ‘just and equitable’ outcome overall is achieved. However, there will be cases where it would not be ‘appropriate’ to deny interim relief, as this would not permit a ‘just and equitable’ result in the interim.”[15]
[15] See Wenz v Archer (ibid) at [54
Considerations of this type led the Full Court in Strahan to say as follows:
“We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party. [16]
[16] See Strahan (ibid) at [139]
Conclusions
The High Court in Stanford has reaffirmed the centrality of section 79(2) in the making of any order resulting in the alteration of marital property interests. At both the interim and final stage, the court must be satisfied that it is just and equitable to make the order sought.
In Strahan the Full Court has disavowed any notion that there must be compelling circumstances before an interim property order is made. The sole determinative factor being the interest of justice.
Thus this question does not turn solely on the perceived inevitability that a property order will be made as a consequence of an assessment of the applicable considerations arising from section 79(4). The exercise is a more nuanced one and the court must be cautious not to homogenise the two considerations – that is the considerations of justice and equity arising under section 79(2) and the mechanical considerations provided by section 79(4).
It also seems to me that it will be necessarily more problematic to properly address the section 79(2) issue in the context of a limited interim hearing. Essentially, on the basis of untested and provisional evidence, it may be difficult for the court to assess the overall justice of any outcome sought.
In this case, the parties have been separated for a period in excess of two years. They are the parents of three children of school age. At an early stage of their marriage, it was mutually decided by them that the wife would leave the paid workforce and devote herself exclusively to the welfare of the parties’ children and the upkeep of their home.
It also seems to be the case that the parties agreed, at the very least impliedly, that this situation would continue to prevail after their separation, with the wife and children continuing to live in the [W] home and the husband providing the financial resources necessary to enable this situation to continue.
At this interim stage, it is clear to me that the wife requires accommodation for herself and the children, at the very least, until she has had an opportunity to consider her options. In these circumstances, I am troubled that to compel a sale of the property concerned, in the face of the wife’s strenuous objections, would not be a just and equitable outcome nor to use the terminology provided in Strahan in the interests of justice.
Until recently, the husband had not formally indicated his wish to liquidate his interest in the [W] property. To the contrary, prior to late November 2012, he acquiesced to the wife and children remaining in the property over the period of the preceding two years.
It seems to me to be potentially unfair to bring this arrangement abruptly to an end, particularly when a final hearing has been scheduled for approximately six months time.
I acknowledge that the pool of property available to be distributed between the parties concerned, at this stage, largely consists of the [W] property and the husband’s financial contributions to this property are likely to be assessed as significant.
The wife’s non-financial and homemaking contributions are also likely to be assessed as significant. More problematic, at this stage, is how the court is likely to assess the salient factors arising under section 75(2) of the Act.
At this stage, both parties’ applications for final property orders are imprecisely conceptualised. This is particularly so in the case of the wife. She has indicated that she wishes to retain the [W] property but she has not formulated the means by which this outcome is to be achieved.
At this point, I have been told that there are controversies arising between the parties regarding the disclosure of relevant financial information. What are the likely ramifications of these controversies is unknown to me. In particular, I do not know whether there is any possibility that the pool of assets, as currently delineated, will be increased. Nor do I know what the implications are of these disputes for matters potentially arising for consideration under section 75(2).
In another recent decision, regarding an application for property distribution made at the interim stage, I said as follows:
“The discretion to make an interim property order is one which is to be conservatively exercised. Issues which are inchoate, at this stage, may become more apparent to me at the final hearing stage and may considerably change the topography of the dispute between the parties, at this later stage. To use the terminology of the former US Secretary of Defence, Mr Rumsfeld, these are the “known unknowns”.
In addition and more significantly, as the final hearing unfolds, “unknown unknowns” may arise which will even more significantly change the issues in dispute the parties and how their property is to be distributed between them.” [17]
[17] Benson & Benson [2012] FMCAfam 335 at [91] – [92]
At this stage, although it may appear improbable, I do not think that I can entirely rule out the probability that Ms Cord will not be in a position to retain the [W] property following the court’s exercise of the section 79 discretion. In these circumstances, I have come to the conclusion that I must treat the husband’s assertion that the sale of the property is inevitable with some caution.
In addition, as I have already indicated, the discretion to make an interim property settlement does not turn on the mechanical operation of section 79(4) alone.
How the various section 75(2) factors will ultimately play out and who of the parties they will ultimately favour is unclear to me. What is unclear is that the wife has been out of the paid workforce for a period of around fifteen years and, up to this stage, impliedly wishes to remain largely engaged in parenting and home duties.
On the other hand, the husband is in paid employment, which seems secure given his employer is an entity controlled by his parents. They also seem to provide him with some form of financial assistance, from time to time. In terms of section 75(2), these factors can be summarised as the currently known unknowns.
What unknown unknowns may materialise, at the final hearing stage, cannot, for obvious reasons, be currently identified by me. The discretion to make an interim or partial property settlement is not one which is to be mechanically or routinely performed. Ideally, the power arising under section 79 should be exercised by the court once only.
In all these circumstances, I have come to the conclusion that it would not be just and equitable to make the orders sought by the husband at this stage. Accordingly, his application is dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 29 January 2013
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