Felix and Tatum

[2019] FamCA 980

FAMILY COURT OF AUSTRALIA

FELIX & TATUM [2019] FamCA 980

FAMILY LAW – PROPERTY SETTLEMENT – Binding Financial Agreement – Where the wife seeks to preserve the remainder of the husband’s redundancy payment – Where the wife has an arguable claim – Order for $60,000 to be preserved.

Family Law Rules 2004 r 19.04
APPLICANT:	Ms Felix

RESPONDENT: Mr Tatum

FILE NUMBER: SYC 6578 of 2019

DATE DELIVERED: 19 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 18 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT: York Law Family Law Specialists

COUNSEL FOR THE RESPONDENT: Mr Hand

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That the husband cause the sum of $60,000 from the balance of the funds received from B Pty Limited to be placed in the trust account of his solicitors, or in a controlled monies account in the name of his solicitor, to be held pending the determination of the wife’s application.

2. That the balance of the wife’s Second Amended Application in a Case be referred to a Registrar for directions.

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  Felix & Tatum 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 6578 of 2019

Ms Felix

Applicant

And

Mr Tatum

Respondent

REASONS FOR JUDGMENT

1. Ms Felix (“the wife”) and Mr Tatum (“the husband”) entered into a Binding Financial Agreement (“BFA”) on 5  August  2016.

2. The application before the Court is to preserve what remains of a sum of money which has been received by the husband pursuant to a redundancy.

3. The operative clause for the purpose of this application is Clause 15 which provides that the husband is to pay the wife 70 per cent of his net monthly salary until August 2021.

4. The husband was retrenched from his employment in 2019.

5. Pursuant to the redundancy agreement he received a net amount of $327,367.

6. The wife’s application was filed on 21 October 2019.

7. Of the amount of $327,367, he deposed to having retained $162,000 when he swore his affidavit on 22 November 2019. By the time the matter was listed before me on 18 December 2019, only a little over $100,000 was left.

8. Thus it would seem that the husband has spent some $227,000 in a little over three months. He has given no evidence about what he did with the money.

9. The wife seeks an order to preserve what remains of the redundancy payment until such time as her application is determined.

10. There is little prospect that any of the fund will remain if no order is made.

11. The wife contends that the redundancy payment, at least in part, should be construed to be within the definition of “net monthly salary” because the amount of the payment was determined with reference to a number of months of salary. She relies on documents including documents prepared by the husband himself which refer to his not accepting any less than 52 weeks salary, and contends that, pursuant to the provisions of the BFA, she is entitled to a portion of the redundancy.

12. The husband contends that the definition of “net monthly salary” in the BFA would exclude the redundancy payment. Further he contends that Clause 33 of the BFA, which defines the “Governing law and jurisdiction” of the BFA, excludes the jurisdiction of the Family Court of Australia.

13. I do not accept the submission on behalf of the husband that the wife does not have an arguable claim, however, none of those matters can be determined today.

14. There is no demur, nor could there be, that the Court has power to preserve the subject matter of the dispute until such time as the dispute can be resolved.

15. Counsel for the husband submitted that the balance of convenience weighs against making the orders sought by the wife. The husband is unemployed; the redundancy payment is the only source of support for the husband and the parties’ daughter including the payment of her private school fees and he is concerned that he will not find alternate employment for some time.

16. There is no evidence of the husband’s reasonable expenses. His rent has been paid in advance until February 2020.

17. I accept that it is necessary for the husband to have some funds to live on until he finds employment but I also accept that it is necessary to preserve a fund from which the wife’s claim can be met if she is successful.

18. Doing the best I can on the limited information available, I propose to preserve $60,000.

COSTS

1. The solicitors had not complied with Rule 19.04 and were required to provide costs notification letters by 4pm on 18 December 2019.

2. The wife has spent approximately $27,000 and the solicitors estimate her total costs to be $70,000.

3. The husband has spent $34,000 and his total costs are estimated to be $144,000.

4. Does common sense and proportionality not play any part in the reasoning processes of these parties and their lawyers?

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 19  December  2019.

Associate:

Date:  19/12/2019