Fryer & Fryer (No. 6)

[2007] FamCA 1711

FAMILY COURT OF AUSTRALIA

FRYER & FRYER (NO. 6) [2007] FamCA 1711

FAMILY LAW – PRACTICE AND PROCEDURE – ORDERS – Stay of proceedings

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Fryer

RESPONDENT: Ms Fryer

FILE NUMBER: MLF 1388 of 2005

DATE DELIVERED: 19 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 19 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dellidis

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Johns

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie & Associates

Orders

IT IS ORDERED

1. That the time for the husband’s compliance with paragraph 1 (a) of the order made on 15 December 2006 be and is hereby extended to 4:00pm on 19 February 2007.

2. That upon the sale by the wife of the property known as and situated at …, C in the State of Victoria the proceeds be disbursed as follows:

   (a)as the sum of $250,000 to be held by the wife’s solicitors in an interest bearing account to be disbursed either by the written consent of the parties or order of the Court first had and obtained; and

   (b)       as the to balance to the wife.

3. That paragraph 5 of the said order be stayed as to the sum of $37,000 until disposal of the husband’s appeal to the Full Court hearing.

4. That the husband’s application on Form 2 filed 12 January 2007 be otherwise dismissed.

5. The wife’s costs of this application be fixed in the sum of $3000 and the question of the payment be reserved to the Full Court.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1388 of 2005

MR FRYER  

Applicant

And

MS FRYER  

Respondent

REASONS FOR JUDGMENT

1. On 15 December 2006, I delivered reasons for judgment and made orders in undefended proceedings for alteration of property interests.  The husband, who absented himself from that hearing, has now filed a notice of appeal against my orders to the Full Court of this Court.  I would anticipate that that appeal will be heard within approximately six months time.  He now applies for a stay of those orders, and these reasons for judgment are in respect of that application.

2. The key issue of dispute in this matter appears to be that the husband seeks to retain the matrimonial home.  His response on form 1A, which was one of the few documents he filed in these proceedings, may be interpreted as seeking that order from the beginning of these proceedings.

3. The grounds of appeal raise several challenges to the reasons for judgment, and also essentially raise discretionary matters.  The main specific grounds which are raised concern the following matters.  First and probably most importantly, that I included an asset essentially twice in the list of assets.  The reasons for judgment contain a finding with respect to the husband having received the proceeds of sale of a property at M.  In addition to that, I found that the husband had accounts with ING and with AS Pty Ltd.  It is asserted in paragraph 4 of the grounds of appeal that the proceeds of the sale of the M property are the same as the moneys which I found to be in the two accounts.

4. Secondly the husband challenges my decision and order that he pay a sum of $50,000 by way of the wife's costs in the proceedings.  That sum may be seen to be constituted by two broad categories, the first of those being $13,000 being a number of orders for costs made in interlocutory stages of the proceedings, and the second being $37,000 approximately, being the costs of the proceedings before me.  I discharged those earlier orders and made a total order of costs of $50,000.

5. In addition to those particular grounds, the husband asserts in paragraph 3 of his grounds that I should not have included the entirety of the liabilities which I found to be in the sum of approximately $82,700 in the pool.  Accordingly it is suggested that the pool should be adjusted by excluding the sum of $118,000 from the M property, and including the two accounts.  If that were a correct submission in principle, it seems to me more probable that the $118,000 should be included and the two accounts excluded, but for the sake of these reasons for judgment, I am prepared to assume the more favourable position for the husband.

6. There would then need to be added back in the liabilities of $82,700, and on the submission of Counsel for the husband, which I accept, that would derive a net pool of $1,464,000 in place of the figure which I found of slightly more than $1.5 million.  If the husband were to succeed on his appeal to the extent of obtaining an order from the Full Court as sought in part E of his notice of appeal, that he retain the former matrimonial home and otherwise all items of property vest in the party presently having possession thereof, the percentage division would be in excess of 90 per cent to him and less than 10 per cent to the wife.

7. It is unnecessary for me to go into detail, but with regard to the potential merits of that result, it is sufficient for me to find that, taking into account the various matters which I have found in my reasons for judgment referred to earlier, there is no practical prospect of success on that application to an extremely large degree. 

8. I must say that I am most grateful to both Counsel, but in this instance particularly Counsel for the husband, for the way in which this has been presented, as it has been of great assistance.  In discussion with Counsel for the husband, it was in my view entirely properly conceded that the best prospect which the husband has on the discretionary aspect of this appeal in terms of the percentage divisions of the parties' property was an equal division.  I held 67 and a half per cent to the wife and 32 and a half per cent to the husband, together with an amount of $50,000 of costs.  Mathematically an equal division would result in the wife receiving in round figures $732,000.

9. The husband could meet that in part by an assignment to her of the totality of his superannuation interest in the sum of $287,000, and the wife already has, with the exception of the home, assets totalling $289,000.  That would require a payment by the husband to the wife of $156,000.  The only information with regard to the husband's financial position is contained in his statement of financial circumstances which he filed on 14 July 2005.  That discloses a total average weekly income of $199, and total personal expenditure of $297.  There is no other evidence whatsoever of the husband's financial position from him in these proceedings, and that is not as a result of anything other than his own failures to comply with orders of the court for the filing of material.

10. Accordingly I find that there is no evidence to satisfy me that there is any realistic possibility, let alone a probability, that the husband would be able to borrow the sum of $156,000 on a commercial basis.  It has been advanced from the Bar table by Counsel for the husband that he has rich friends who are able to lend him the money.  There is no evidence of that before me.

11. In support of the present application, the husband has filed an affidavit sworn on 12 January 2007.  I have read that document.  In addition, his Counsel sought leave at the beginning of this application to file an affidavit sworn by the husband on 18 January 2007.  Counsel for the wife opposed the granting of leave, and accordingly I read the document with the agreement of both Counsel to determine whether leave should be granted.  I have decided that leave should not be granted as all the facts in that affidavit are facts which were reasonably available to the husband at the time of the trial, and had he availed himself of the various opportunities that he was given, as detailed in my reasons for judgment, to present that material to the court, they would have been considered.  Again that failure is exclusively as a result of his own failures to obey orders of the court for the filing of that material.

12. There are aspects of the affidavit on which leave is sought which constitute argument and are therefore not properly within the confines of an affidavit which should be exclusively with regard to facts.  However, I have nevertheless read those matters and they do not advance the position for the husband in any way.

13. I am fortified in my view with regard to the husband's inability to retain the home by a submission made by his Counsel towards the end of her submissions.  I put to Counsel that I sought a submission as to the conditions which I should impose were I to find against the husband on a stay of the sale of the home and his possession of the home.  She submitted that it would be appropriate to retain the sum of $200,000 in an appropriate account, pending disposal of the appeal.  In my view, that is entirely appropriate, and properly reflects the ambit within which in my view this appeal will be decided, and in particular it properly affects the range of possible results which might be held to be appropriate in the event that the Full Court decides that my orders should be set aside and varied in any way.

14. On the basis of my finding that the husband has no realistic prospect of retaining the matrimonial home as a result of any potential successful appeal, it follows that it is not appropriate to stay any order with regard to the sale of that home.  I find accordingly.  It is therefore also not appropriate to stay the order with regard to the husband leaving the home and affording possession thereof to the wife.  In particular, the wife will suffer hardship if she were prevented from proceeding with the appeal by virtue of her having to live in rental accommodation while the husband lives in the unencumbered home.

15. I note the husband's submissions through Counsel that he would pay the wife's rent, but that suggestion must be discounted on the basis of my finding that he cannot realistically expect to retain the home.  Accordingly there will also be an order for an extension of the husband's possession of the home for a period of 30 days from now, but otherwise the orders will be maintained.  I will not stay the order for the payment of an additional sum by the husband to the wife as that can be offset by the amount retained in trust.  By virtue of the requirement of that payment, I will require the sum of $250,000 to be retained rather than $200,000. Otherwise the orders will be maintained, and the appeal will proceed.

16. I accede to the submission of Counsel for the husband to stay the sum of $37,000 by way of costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date: 20 October 2008