Dupont and Dupont

[2008] FamCA 849

FAMILY COURT OF AUSTRALIA

DUPONT & DUPONT [2008] FamCA 849

FAMILY LAW – PROPERTY – Interim orders – Sale before trial – Proceeds to be held in trust – Proceeds to be used to meet legal and expert witness costs

APPLICANT: Ms Dupont

RESPONDENT: Mr Dupont

FILE NUMBER: MLC 1744 of 2008

DATE DELIVERED: 3 September 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 3 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: McDonald Slater & Lay

COUNSEL FOR THE RESPONDENT: Mr Grant

SOLICITOR FOR THE RESPONDENT: Lampe Family Lawyers

Orders

1. The husband deliver the SUV motor vehicle, registration number …, to Melbourne Prestige Wholesalers in A to be sold by the said Melbourne Prestige Wholesalers as soon as reasonably practicable at a price to be agreed between the parties but in default of agreement being reached within seven days of this date, at a price to be fixed by the said agent for sale.

2. The husband and wife each do all things necessary to effect the sale of the said motor vehicle.

3. The proceeds of sale of the said motor vehicle are to be paid by the agent for sale to the solicitors for the wife to be applied as follows:

   (a)By consent, $17,000 in payment of fees outstanding to P Accountants;

   (b)By consent, $10,000 to be held by the said solicitors in trust for payment in due course to Mr W on account of valuation work in respect of the parties' business interests;

   (c)Not by consent, to hold the sum of $5000 on trust for payment to such single expert witness as may be agreed upon by the parties to value plant and equipment of the business and in default of agreement, such valuer as appointed by the court;

   (d)       As to the balance to be held on trust until further order.

4. The husband pay within 24 hours the sum of $3,000 to the solicitors for the wife by way of maintenance (including arrears to this date).

IT IS FURTHER ORDERED BY CONSENT THAT:

1. The property known as and situate at K be forthwith placed on the market for sale at a reserve price of $2,300,000.

2. The husband and wife jointly appoint an agreed agent to sell K property and agree upon terms and conditions and in default of agreement within 14 days, the husband and wife shall accept the recommendation of the President of the REIV in relation to the appointment of an agent and/or terms and conditions.

3. The proceeds of sale of K property be distributed as follows:

   (a)payment of all real estate, fees, commissions, disbursements and conveyancing costs;

   (b)Payment of all amounts due and payable to National Australia Bank with respect to mortgages and loans outstanding (approximately $1,700,000);

   (c)The balance to be held in trust by the wife's solicitors on behalf of the parties pending further order or distribution by agreement.

4. The husband and wife each provide discovery in the terms set out in paragraph 6 of the wife's application in a case filed 4 August 2008.

5. The child born … May 1993, live with the husband and spend time with the wife as follows:

   (a)       From 2 pm each Wednesday to 6 pm each Thursday;

   (b)       At such other times as may be agreed between the parties.

IT IS FURTHER ORDERED THAT:

1. I otherwise adjourn the wife's application in a case filed 27 February 2008 and 4 August 2008 and the husband’s response filed 28 August 2008 to the Interim Hearing List at 10 am on 30 September 2008.

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. Before me today are the wife's application in a case filed 4 August 2008 and the response of the husband filed 28 August 2008.  The proceedings involve financial issues, children's matters being resolved, although there is one children's order that was not made as part of the suite of consent orders that were made earlier and I will make that additional order by consent today.

2. The wife seeks the sale of certain assets and the payment to her of $40,000 for the purpose of conducting these proceedings and $10,000 by way of spousal maintenance inclusive of arrears for the purpose of necessary items, including motor vehicle registration, insurance and credit card payment.

3. There has been a lot of discussion today, including suggestions made by me to try and deal with all interim issues in the context of this application but that does not appear to be possible.  I certainly would not make an order for $40,000 for the purpose of conducting these proceedings without more evidence about just what the wife’s costs are already, and are likely to be.  The wife's affidavit at this stage is very indistinct on that subject and while I accept entirely she will have costs and significant disbursements, there simply is not enough there for me to make what is known as a Barro order and I accept Mr Grant's submissions on that point.

4. As to the wife's further amended application in the terms of a minute that she has handed to me through her counsel today, she seeks simply a payment of $30,000 to be characterised later, and otherwise the dismissal of her interim application or all interim applications as I now understand it.  That would in a sense obviate the need for a further listing of the interim application but it really means that none of that money is characterised as anything and there would be nothing to stop that money being applied to one particular purpose and a further application being made for funding for other purposes.

5. I must say that I was surprised by counsel for the wife's last response to the suggestion that some of the money of that $30,000 be applied for legal costs and some be applied by way of spousal maintenance, given that it would in fact be entirely, it appears to me, consistent with subparagraph (1)(b) of her application which was for $10,000 by way of spousal maintenance, inclusive of arrears for the purpose of necessary items et cetera, but if it is not seen as consistent with the wife's application for me to characterise it in that way, then I will not order the payment.

6. I am satisfied that there is a liquidity crisis and that the wife is suffering the worst of it at this stage, and that it is appropriate to do something to put the parties in a position where that liquidity crisis can be met, and it may well be that payment of the properly framed Barro order could be substantiated. I am satisfied that the arrears of maintenance that exist as at today should be met, but that could be achieved by another of the paragraphs of the application as amended in handwriting by the wife, namely paragraph 7.

7. So I propose to order the sale of the car to make funds immediately available or nearly immediately available. 

8. The next available date for a hearing of some substance is 30 September 2008 and it seems to me that there is no choice but for the parties to come back on that day in the circumstances.  There are certain matters that they agreed to and I certainly want to move the case forward in terms of funding them to be able to obtain valuations. 

9. The parties attended a conciliation conference earlier this week but irrespective of any other reasons why it could not proceed, there was no appropriate valuation evidence to enable it to proceed.  Therefore, I consider it important to make available part of the proceeds of sale of this vehicle to fund valuations and some of that can be ordered by consent. 

10. The one issue that is not by consent on the valuation front is the provision of $5000 to be held in trust on account of a plant and equipment valuation.  I would not adopt the wording of the husband's order because it names a valuer who is not an agreed valuer.  The wife says she has been agreeing to someone else for a long time but I am not clear about whether that is someone acceptable to the husband, so I cannot determine that issue.

11. What I propose to do is make the orders for the sale of the car broadly in the terms of the proposal put forward by the wife and order that part of the proceeds of sale be applied in payment of valuations with the balance to be held in trust until further order.  The wife is going to have to make an election as to whether she is seeking a Barro order or not and if so, put forward the appropriate evidence of that, what those costs and disbursements are.

12. Her last position was simply that she should receive $30,000 to be characterised later.  Whilst the husband was ultimately persuaded to a version of that, as I foreshadowed earlier, which would have quarantined some of the money for costs purposes and some for maintenance purposes, Ms Smallwood makes the submission, which is right, of course that in a sense she is being paid out of capital that is joint capital anyway.  It is not clear to me that there is any other source from which to pay anything in this case, but Ms Smallwood obviously wants to argue that point on a later day and so she shall have that opportunity.

13. I will therefore order, having regard to the urgent need to have the valuation evidence put in place before the case can go anywhere, and my view that there is in the evidence before me today a sufficient basis for saying that funds do need to be raised to pay some funds to the wife in the interim - I am just not able to do it in the framework of the applications and submissions that are presently before me as to quantum and characterisation -  that the husband deliver the SUV motor vehicle, to Melbourne Prestige Wholesalers in A to be sold by the said Melbourne Prestige Wholesalers as soon as reasonably practicable at a price to be agreed between the parties but in default of agreement being reached within seven days of this date, at a price to be fixed by the said agent for sale.

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

Associate: …

Date:  14 October 2008