Cuny and Cuny (No 2) - [2014] FamCA 884

FAMILY COURT OF AUSTRALIA

CUNY & CUNY (NO. 2)

[2014] FamCA 884

FAMILY LAW – PROPERTY SETTLEMENT – INTERIM PROCEEDINGS – SPOUSAL MAINTENANCE – Where the wife sought to vary spousal maintenance orders made by consent –Where the wife claimed the amount is not proper or adequate and that there has been a change of her circumstances since the orders – Consideration of s 83 of the Family Law Act 1975 (Cth) – Where the wife failed to demonstrate that a variation of the orders is justified – Application dismissed.

FAMILY LAW – PROPERTY SETTLEMENT – INTERIM PROCEEDINGS – Where the parties sought orders for partial property settlement in order to pay legal costs – Where there is substantial equity in the former matrimonial home – Where the amount sought by each party was insignificant compared with the overall net assets – Where it was just and equitable to make orders for partial property settlement in favour of both parties.

Family Law Act 1975 (Cth) ss 79, 83

Cuny & Cuny [2014] FamCA 825
Strahan and Strahan (2011) FLC 93-466

APPLICANT:

Mr Cuny

RESPONDENT:

Ms Cuny

FILE NUMBER:

SYC

1927

2013

DATE DELIVERED:

20 October 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

10 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Wheelhouse SC

SOLICITOR FOR THE RESPONDENT:

Rockwell Olivier

ORDERS

IT IS ORDERED

That the wife’s application filed on 2 September 2014 to vary the orders for interim spousal maintenance made on 22 July 2013 be dismissed.
That within seven days the husband and the wife pay, or cause to be paid, by way of interim property settlement, to the husband the sum of $120,000 and to the wife the sum of $137,000.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cuny and Cuny (No. 2) 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 SYDNEY

FILE NUMBER: SYC 1927 of 2013

Mr Cuny

Applicant

And

Ms Cuny

Respondent

REASONS FOR JUDGMENT

Mr Cuny (“the husband”) asks the Court to make an order for interim property settlement in the sum of $120,000 in favour of each of himself and Ms Cuny (“the wife”). The husband’s application is that the interim property settlement be financed by a drawdown on the existing loan facility with the National Australia Bank (“the NAB loan facility”). The NAB loan facility is secured over the former matrimonial home located at L Street, Suburb M (“L Street”).
The wife opposes the making of an interim property settlement in favour of the husband but asks that the Court make an order that the husband pay $137,000 to her solicitors by way of interim property settlement.
The wife also applies for an order to vary spousal maintenance.

THE SPOUSAL MAINTENANCE APPLICATION

The orders for spousal maintenance which…

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.

Continue reading Cuny and Cuny (No 2)

Details

AGLC: Cuny and Cuny (No 2) [2014] FamCA 884
Case: [2014] FamCA 884
Decision Date: 20 October 2014

CaseChat Overview and Summary

In *Cuny and Cuny (No 2)*, the wife sought to vary existing consent orders for interim spousal maintenance, contending that the amount was inadequate and that her circumstances had changed. The parties also sought orders for partial property settlement to address legal costs, given the substantial equity in their former matrimonial home. The proceedings were heard by Rees J in the Family Court of Australia.

The primary legal issues before the court were whether the wife had demonstrated a sufficient change in circumstances to justify varying the interim spousal maintenance orders under section 83 of the *Family Law Act 1975* (Cth), and whether it was just and equitable to make orders for partial property settlement to facilitate payment of legal costs.

Rees J dismissed the wife's application to vary spousal maintenance, finding that she had failed to establish that such a variation was justified. Regarding the property settlement, the court considered the applications for partial settlement to be insignificant in the context of the parties' overall net assets. His Honour concluded that it was just and equitable to make orders for partial property settlement in favour of both parties.

Consequently, the wife's application to vary the interim spousal maintenance orders was dismissed. The court ordered that within seven days, the husband and wife were to pay, by way of interim property settlement, $120,000 to the husband and $137,000 to the wife.

Orders

Orders of the court

IT IS ORDERED

That the wife’s application filed on 2 September 2014 to vary the orders for interim spousal maintenance made on 22 July 2013 be dismissed.

That within seven days the husband and the wife pay, or cause to be paid, by way of interim property settlement, to the husband the sum of $120,000 and to the wife the sum of $137,000.

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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