Dupont and Dupont

[2010] FamCA 704

FAMILY COURT OF AUSTRALIA

DUPONT & DUPONT [2010] FamCA 704

FAMILY LAW – PROPERTY – Interim distribution

APPLICANT: Ms Dupont

RESPONDENT: Mr Dupont

FILE NUMBER: MLC 1744 of 2008

DATE DELIVERED: 12 August 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

EX TEMPORE JUDGMENT OF: Justice Cleary

HEARING DATE: 12 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Williams

SOLICITOR FOR THE APPLICANT: McDonald Slater & Lay

COUNSEL FOR THE RESPONDENT: Mr P Davis

SOLICITOR FOR THE RESPONDENT: Webb Korfiatis

Orders

1. That each party shall do all necessary acts and things to authorise the release of funds, from the interest bearing account held by McDonald Slater & Lay Solicitors in the names of both of the parties, to each party the sum of $50,000.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1744  of 2008

MS DUPONT

Applicant

And

MR DUPONT

Respondent

REASONS FOR JUDGMENT

1. The property proceedings listed before the court have been adjourned to a date to be advised, the parties having agreed that the evidence could not be completed in the two (2) days which were available for hearing.

2. Oral applications by both parties were made arising from that adjournment.  Three orders contained in a Minute of Order were made by consent, being orders 3, 4 and 5 in that document.

3. The outstanding orders sought are as follows:-

   a)the applicant wife seeks orders that:-

   i)$50,000 be paid to each of the husband and the wife; and

   ii)from the monies paid to the husband the sum of $15,000 be paid to the wife for arrears of spousal maintenance; and

   b)the respondent husband seeks a release of funds, being $98,000, from the funds held in trust.

4. The applicant wife was not opposed to the release to the respondent husband of $35,000.

5. The respondent husband did not oppose the release of funds to the wife in the sum of $65,000 or an increased amount if sought.  The husband did oppose the release other than as an interim property settlement.  However, it was conceded that there was a relevant spouse maintenance order, that payments were in arrears and that $15,000 was an accurate calculation of those arrears.

6. Counsel for the wife advised that there had not been an application to vary the spouse maintenance order.  However, I do not propose to categorise the funds, whose release I will order, as arrears of spouse maintenance.

   In relation to the spouse maintenance, I am concerned that the issues arising are not matters which should be dealt with in these interim proceedings.

7. Neither counsel directed me to any particular part of the affidavit material rather there were submissions from the bar table as follows:

   a)for the wife, that she required funds to:

   i)pay her legal fees;

   ii)support herself and

   iii)address arrears of spouse maintenance; and

   b)for the husband, that he required funds to:

   i)pay legal fees;

   ii)reduce credit card debt; and

   iii)re-accommodate himself and the parties’ daughter, aged 17 years 3 months, who presently lives with him in the factory property.

8. In the circumstances it is reasonable for each of the parties to seek a release of funds for payment of costs apparently presently carried by their respective lawyers.

9. Doing the best I can on untested evidence I rely on paragraphs 8 and 9 in the affidavit of the husband filed 24 February 2010 that the husband had plans to re-accommodate himself and the child after this final hearing and on the financial statement of the husband filed 24 February 2010 that he had credit card debt of approximately $58,000.

10. I rely on the uncontested submissions on behalf of the wife that she has an unmet need to support herself due to spouse maintenance being in arrears.

11. There are clearly strongly contested issues around valuation of the business, disposal of assets and conduct, in the proceedings.  The net asset pool is not agreed.

12. However, where the parties are both experiencing financial pressures aggravated by their dispute remaining unresolved, I do consider that it is just and equitable to make an order at the interim stage although the evidence has not been tested.

13. Accordingly I make the aforesaid orders.

I certify that the preceding thirteen paragraphs (13) are a true copy of the reasons for judgment of the Honourable Justice Cleary.

Associate:     

Date:              12 August 2010