Faden & Faden (No 2)

The Family Court of Australia heard competing applications by Mr Faden (the applicant husband) and Ms Faden (the respondent wife) concerning property matters. The dispute primarily concerned who should bear responsibility for the mortgage payments on the former matrimonial home and the disposition of surplus funds held within the Faden Family Trust.

The court was required to determine the respective capacities of each party to earn income, their actual incomes and available resources, and their reasonable expenditures. These considerations were to inform the court's decision on the proportion each party should contribute to the mortgage instalments for the former matrimonial home, and how surplus funds from the Faden Family Trust should be applied. The court also considered the implications of any interim payments towards the mortgages on future property settlement proceedings.

The court applied principles akin to those in spouse maintenance claims, referencing sections 72 and 75 of the Family Law Act 1975 (Cth). This involved assessing each party's income, resources, and earning capacity. The court noted that the husband's income was derived from L Pty Ltd and K Pty Ltd, with additional benefits, while the wife's income consisted of child support, dividends, and distributions from the P Trust. The court also considered the financial contributions of the parties' respective partners. Regarding the Faden Family Trust, the parties agreed that $15,000 of its credit balance was surplus to requirements. The wife sought this sum be applied to reduce the mortgage arrears, while the husband proposed an equal distribution to each party.

The court ordered that each party was to pay one half of the mortgage instalments for the home loan and two equity loans secured against the former matrimonial home. The husband was restrained from drawing down on these loan accounts. Furthermore, the parties were directed to jointly instruct an expert to report on necessary repairs and maintenance at the former matrimonial home. The court also ordered that $15,000 be drawn from the Faden Family Trust's Macquarie Bank account and applied in equal proportions to reduce the aforementioned mortgages. Finally, the court stipulated that whenever the Faden Family Trust account reached a credit balance of $25,000, the sum of $7,500 was to be distributed to each party.