Demetriou and Demetriou & Ors

[2017] FamCA 1021

FAMILY COURT OF AUSTRALIA

DEMETRIOU & DEMETRIOU AND ORS [2017] FamCA 1021

FAMILY LAW – PROPERTY – INTERIM – Where the wife seeks an interim property settlement for legal fees and other expenses – Where the husband proposes that a “dollar for dollar” order be made in relation to the wife’s legal fees – Where the husband has already spent joint matrimonial funds for legal costs – Orders made that the husband pay the wife the amount he has spent in legal fees and that thereafter a “dollar for dollar” order operate.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks interim spousal maintenance – Where the husband has capacity to pay the amount the wife claims as her weekly expenses – Orders made for the husband to pay the wife $2,250 each week.

APPLICANT: Ms A Demetriou

FIRST RESPONDENT: Mr Demetriou

SECOND RESPONDENT: Ms B Demetriou

THIRD RESPONDENT: C Pty Ltd

FILE NUMBER: SYC 2580 of 2017

DATE DELIVERED: 14 December 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 4 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rosic

SOLICITOR FOR THE APPLICANT: Rowlandson & Co Solicitors

COUNSEL FOR THE FIRST RESPONDENT:

Mr Batey

SOLICITOR FOR THE FIRST 

RESPONDENT:

Mills Oakley Lawyers

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: Mr Beaumont SC

Orders

IT IS ORDERED

1. That the husband pay to the wife, by way of spousal maintenance, the sum of $2,250 per week.

2. That the husband pay, as and when they fall due, all outgoings on the property at D Street, Suburb E. 

3. That within 30 days of the date of this order, the husband pay to the wife the sum of $179,000 by way of interim property settlement.

4. In the event that the husband does not pay the sum in Order 3 by the due date, then he shall sell the items set out at items 40 and 43 of Part I of his Financial Statement sworn 27 November 2017 and, from the proceeds of sale, pay to the wife’s solicitors the sum of $179,000 together with interest at the rate set by the Family Law Rules 2004 (Cth) from the due date until the date of payment.

5. That on and from the date of these orders, the husband shall cause to be paid to the wife’s solicitors an amount equal to any and every amount he pays, or that is paid on his behalf, to his solicitors in relation to these proceedings, such payment to be made within 48 hours of the making of any payment to the husband’s solicitors.

6. That for the purpose of Order 5, the husband shall instruct his solicitors to notify the wife’s solicitors within 24 hours of receipt by them of any payment made by the husband, or on his behalf, for costs and disbursements for these proceedings.

7. That the husband’s application for occupation of the property at D Street, Suburb E is dismissed. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Demetriou & Demetriou and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2580 of 2017

Ms A Demetriou

Applicant

And

Mr Demetriou

First Respondent

And

Ms B Demetriou

Second Respondent

And

C Pty Ltd

Third Respondent

REASONS FOR JUDGMENT

1. Ms A Demetriou (“the wife”) and Mr Demetriou (“the husband”) commenced co-habitation in 1991, married in 1998 and separated in January or March 2017.

2. They have four children, twins aged 15 years, a 12 year old and a 9 year old who live with the husband in a property owned by the parties and referred to as “the shack”.

3. The wife lives in another property owned by the parties at Suburb E which was purchased shortly before the separation. That property has two dwellings, a large house where the wife lives (“the Suburb E house”) and a smaller house, referred to as “the cottage” where the husband and the children lived after separation and before they moved to the shack.

4. The proceedings before the Court relate to both property settlement and parenting. Interim applications in relation to parenting have been listed for hearing later in December. The proceedings before the Court on 4 December 2017, which I am required to determine, relate to spousal maintenance, costs, certain injunctions and the husband’s application for occupation of the Suburb E house.

5. Also before the Court were applications to join, as parties to the proceedings, the husband’s mother, Ms B Demetriou (“the second respondent”) and a company controlled by her, C Pty Ltd (“the third respondent”).

6. The second and third respondents appeared by Senior Counsel and consented to be joined as parties.

7. The issues relevant to the second and third respondents arose out of payments made by the husband to the second or third respondents of large sums of money derived from the sale of assets of the husband and the wife. Those sums totalled some $2,800,000. Then husband alleged that the money had been lent to the parties by his mother. The wife sought orders that those sums be returned to the husband and the wife and placed in a controlled monies account. That issue was resolved on an interim basis by the second respondent providing security for the sum of $2,800,000 over three unencumbered properties. Orders were made for the wife to plead her case against the second and third respondents.

8. The husband and the wife also resolved an application by the wife for orders restraining the husband from dealing with the proceeds of sale of two properties at Suburb F which are due to settle in about May 2018. The parties agreed that the net proceeds of those sales should be held by the solicitor instructed on the conveyance until this matter is resolved.

9. Neither the husband nor the wife is in paid employment. They have sold substantial real property assets and lived from capital. Presently, the husband receives $45,000 per month from the purchaser of land at Suburb F. There is a dispute about whether the husband receives other payments but that dispute cannot be resolved here.

10. The issue then remaining to be determined were:

    ·    The wife’s application for spousal maintenance;

    ·    The wife’s application for interim property settlement; and

    ·    The husband’s application for sole occupation of the Suburb E house.

SPOUSAL MAINTENANCE

1. There is no dispute that the wife is unable to support herself.

2. The order which she seeks is that, from the sum of $45,000 paid to the husband each month, she receives $22,500.

3. The husband asks the Court to order that he pay $2,000 per week by way of spousal maintenance.  He pays the outgoings for the property at Suburb E and proposes that he continue to do so.

4. The wife estimates her reasonable expenses to total $2,250 per week. There was no real challenge to her estimates.

5. The husband has the capacity to pay the amount of $2,250.

6. An order will be made for spousal maintenance in that sum.

INTERIM PROPERTY SETTLEMENT

1. I note that the husband proposed that an order be made to the effect that he pay  specified expenses and that the balance of the $45,000 that he receives every month be paid into a controlled money account. Having regard to the evidence in his affidavit deposed 27 November 2017 to the effect that the $45,000 is wholly used in paying those specified expenses, that proposition seems somewhat cynical and I do not propose to adopt it.  

2. The wife seeks two further orders which relate to the funding of her legal expenses. Both are sought as interim property settlement.

3. She specifically seeks payment of $100,000 to be used for legal fees. She also seeks a further payment of $400,000 to pay for renovations to the Suburb E house, to meet future legal fees and to use as start-up capital for a proposed business.

4. Thus she seeks a total of $500,000 by way of interim property settlement.

5. The wife is not required to explain what she wants to do with any sums she is awarded by way of interim property settlement.

6. The issues to be determined are, firstly, whether the amount she seeks is likely to be less than her entitlement at final hearing and, secondly, whether a fund exists from which the sum can be paid.

7. The husband estimates the net asset pool to be in the region of $4,000,000. The wife would be entitled to substantially more by way of property settlement than the $500,000 she seeks by this application. The husband’s application is that she receives $1,300,000.

8. There is no doubt that, before the payment to the husband’s mother of $2,800,000, funds existed from which the wife could have been paid.

9. The husband’s case is that there are no funds from which such a sum can now be paid. The wife is not able to point to such a fund.

10. The husband has paid legal fees of about $179,000 from joint funds. He proposes that a “dollar for dollar” order be made so that, in future, the wife’s lawyers will receive the same sum as the husband’s lawyers.

11. That proposal has two disadvantages. Firstly, it does not put the wife in the same position as the husband because it does not entail a payment of $179,000 to the wife’s lawyers so that they are put in an equal position to the husband’s lawyers. Secondly, payments to the wife’s lawyers would be in accordance with the timetable set by the husband’s lawyers and may not suit the needs of the wife’s lawyers from time to time.

12. The husband has cash at bank and chattels which he values at about $255,000. The chattels include five motor vehicles, seven quad bikes, five motor bikes, a ski boat, a vintage motor bike, equipment, a gun collection and a pontoon.

13. I propose to allow the husband 30 days to pay the wife $179,000. If he does not pay that amount by the due date, then the chattels which are items 40 and 43 in Part I of the husband’s Financial Statement sworn 27 November 2017 are to be sold and the funds, together with interest, paid to the wife.

14. That will put the parties on a level footing. Thereafter, a dollar for dollar order will ensure that they remain on a level footing.  

EXCLUSIVE OCCUPATION

1. The wife currently occupies the Suburb E house. The husband and the children occupy the shack.

2. I am satisfied that the husband’s occupation of the shack is not permitted by the local council and that he has been given notice to vacate.

3. The husband proposes that he and the children occupy the Suburb E house and the wife move to the cottage. He proposes that, on those times when the children live with her, he will move out of the Suburb E house and she can move in.

4. I do not consider that this arrangement is practicable or reasonable. The husband and the wife have separated. Although I was not referred to any specific evidence in relation to the wife’s mental health, that evidence being contained in the affidavits relating to parenting, it was adverted to by Counsel in submissions. To force them to occupy the same premises, albeit in separate houses, in circumstances where the wife does not agree, could not be conducive to her health.

5. On separation, the parties agreed that the wife would occupy the Suburb E house. She is the registered proprietor.

6. The husband and the children occupied the cottage for a period after separation. Considering that they subsequently moved to the shack, I infer that it was not a convenient arrangement.

7. The wife does not want to move. She wants to retain the Suburb E house as part of her entitlement to property settlement.

8. The husband has ample funds with which to rent another suitable property, although he may need to reduce his discretionary expenditure.

9. The husband’s application will be dismissed.   

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 14 December 2017.

Associate: 

Date:  14/12/2017