Furtado & Furtado - [2011] FamCA 1018

FAMILY COURT OF AUSTRALIA

FURTADO & FURTADO

[2011] FamCA 1018

FAMILY LAW – PROPERTY - Interim property and spousal maintenance

Family Law Act 1975 (Cth)

Bearup & Bearup (1993) FLC 92-412
Saxena & Saxena (2006) FLC93-268
Strahan & Strahan (2011) FLC 93-466
Zschokke and Zschokke (1996) FLC 92-693

APPLICANT:

Ms Furtado

RESPONDENT:

Mr Furtado

FILE NUMBER:

MLC

8586

2010

DATE DELIVERED:

30 November 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Murphy J

HEARING DATE:

30 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Strum

SOLICITOR FOR THE APPLICANT:

Gillian Coote Family Law

COUNSEL FOR THE RESPONDENT:

Mr Davis

SOLICITOR FOR THE RESPONDENT:

Rosetta Traficante Solicitor

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

The husband pay or cause to be paid:
(a)Not less than the minimum payments of principal (if any) and interest required by the National Australia Bank, as same fall due from time to time, secured by registered mortgage over the former matrimonial home situate at B Street, Suburb C in the State of Victoria; and
(b) As and by way of spousal maintenance:
(i)The difference between the sum of $1007 per week and such weekly sum as the husband may be administratively assessed from time to time by the Child Support Agency to pay to the wife by way of periodic child support, such that the total weekly sum payable by the husband to the wife pursuant to this paragraph (by way of spousal maintenance and periodic child support) is $1007 per week; and
(ii)Private health insurance premiums for the wife at the existing level of cover.

IT IS ORDERED THAT

The Application in a Case filed by the husband on 17 October 2011 is hereby dismissed.
The Amended Application in a Case filed by the wife on 25 November 2011 is otherwise dismissed.
The costs of either party, of and incidental to these interim proceedings, be reserved to the trial judge.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8586 of 2010

Mr Furtado

Applicant

And

Mr Furtado

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The applications for interim financial relief filed by each of the husband and wife need to be seen against the background that each now proceed on the assumption communicated through the regional coordinating judge that the trial of this matter will take place in March or April 2012, that is, in about 16 weeks time. With that in mind, the wife seeks, by way of a minute handed up at the outset of these proceedings, the following orders in lieu of those sought in her Amended Application filed 25 November 2011:
1. That until further order the husband pay or cause to be paid:
(a) not less than the minimum payments of principal, if any, and interest required by the National Australia Bank as same fall due from time to time,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Furtado & Furtado

Details

AGLC: Furtado & Furtado [2011] FamCA 1018
Case: [2011] FamCA 1018
Decision Date

CaseChat Overview and Summary

This case involved applications for interim property and spousal maintenance before the Family Court of Australia. The applicant, Ms. Furtado (the wife), and the respondent, Mr. Furtado (the husband), sought various orders concerning the former matrimonial home, child support, and spousal maintenance. The husband also sought the sale of the former matrimonial home on an interim basis.

The court was required to determine whether to grant interim orders for the sale of the former matrimonial home, and to assess the appropriate level of interim spousal maintenance and child support, considering the imminent trial date. Specifically, the court had to consider the husband's application for an immediate sale of the property, the wife's claims for mortgage payments, private health insurance, and a combined child and spousal maintenance payment, and the husband's financial capacity and the parties' historical standard of living, including private school fees.

Justice Murphy, in his reasoning, acknowledged the high threshold for ordering the sale of a matrimonial home on an interim basis, citing established Full Court authorities such as *Bearup & Bearup*. He found that the husband's concession that such an order was unusual and difficult to reverse was well-founded. While noting potential inconsistencies in the wife's stated intentions regarding relocation, the judge was not persuaded that it was tolerably certain that her desired outcome of retaining the home could not be achieved at trial, and therefore dismissed the application for an interim sale. Regarding spousal maintenance, the court applied the principles outlined in *Saxena & Saxena*, assessing the wife's capacity for self-support, her reasonable needs, the husband's capacity to pay, and the reasonableness of any order under section 75(2) of the *Family Law Act 1975*. The judge found the wife's current incapacity for remunerative employment, her reasonable needs (including the mortgage), and the husband's admitted capacity to pay were established.

The court ordered that the husband pay the minimum mortgage payments on the former matrimonial home and provide spousal maintenance and child support totalling $1007 per week, as well as private health insurance premiums for the wife. The husband's application for the sale of the home was dismissed, and the wife's amended application was otherwise dismissed. Costs were reserved for the trial judge.

Orders