GANDEN & GANDEN

[2014] FamCA 399

FAMILY COURT OF AUSTRALIA

GANDEN & GANDEN [2014] FamCA 399

FAMILY LAW – PROPERTY – SPOUSAL MAINTENANCE – Where there is insufficient evidence to properly deal with the interim application for maintenance – Where the application for maintenance is adjourned – Where the court did determine that the wife is in need of urgent financial assistance – Where the court made orders for spousal maintenance until the next court date only.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for transfer of proceedings – Where application granted.

Family Law Act 1975 (Cth) s 77

APPLICANT: Ms Ganden

RESPONDENT: Mr Ganden

FILE NUMBER: SYC 1860 of 2014

DATE DELIVERED: 12 May 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 12 May 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Armstrong Legal

COUNSEL FOR THE RESPONDENT: Mr Williams

SOLICITOR FOR THE RESPONDENT: Barry Nilsson Lawyers

Orders

1. That the wife’s interim spousal maintenance application shall be adjourned to the duty list at 9.30am on 23 June 2014. 

1. That the wife be paid urgent maintenance of $550.00 per week commencing immediately up to and including 23 June 2014. 

2. That these proceedings are hereby transferred to the Brisbane Registry after the determination by the court of the interim application for spousal maintenance and, on the condition that the husband pay prior to each court appearance, conciliation conference or mediation held in Brisbane, the sum of $1,000 towards the wife’s reasonable travel and accommodation expenses. 

3. That leave is granted to the husband to attend the case assessment conference before Registrar Chayna on 14 May 2014 by phone.  Details below:

To join the teleconference, please follow these instructions from any telephone on the date and time provided:

1.Dial …  

2.When requested, enter the Meeting number, *…* (please don’t forget to press the *(star) key before and after the number);

3.You will hear music until the Registrar joins the conference.

Conferences are generally limited to about 15 minutes.

Please make sure you are available to participate in the conference at the commencement time.

Be aware that there may be more than 1 matter being heard by way of genysis link-up. Each matter will be announced by the Registrar when they are ready to proceed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ganden & Ganden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1860 of 2014

Ms Ganden

Applicant

And

Mr Ganden

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. There are two applications before the court.

Application for interim spousal maintenance

1. The first is an application by Ms Ganden (‘the applicant’) for interim spousal maintenance.

2. The evidence of the applicant demonstrates that if rent were taken into account her reasonable expenses would be $1 050 per week.

3. The parties were in a short marriage which ended in February 2014.

4. The applicant is presently aged 55 years and has given some meagre evidence as to efforts to obtain employment. She says she is presently seeing a clinical psychologist.

5. The applicant has annexed to her affidavit a Centrelink certificate which, rather confusingly, says that her symptoms, which are described are pervasive low mood, difficulty with ADLs and poor concentration, will affect the applicant’s capacity to work or study for three to twelve months but the doctor that gave that form says that she is unfit to work until 25 May 2014.  It is apparent from the form that the doctor has only seen the applicant on that occasion.  There is no report from the clinical psychologist.

6. The evidence is thus insufficient in order to properly deal with the interim application for maintenance and it will be adjourned to the duty list on 23 June 2014 at 9.30am.

7. I propose, however, to make an order for urgent spousal maintenance pursuant to s 77 of the Family Law Act 1975 (Cth) (‘the Act’). It is an order that enables maintenance to be provided where there is an urgent need if the court is satisfied that a party is in immediate need of financial assistance, but it is not practical in the circumstances to determine immediately, if any, what order should be made.

8. I have already indicated that I am not satisfied that the matter is ready to proceed from the applicant’s point of view in relation to evidence as to her efforts or ability to seek or obtain employment.

9. I stress that if there is some evidence of that nature available that does not mean that a spousal maintenance order will follow.  This is because the issues as to the precise need of the applicant remain outstanding and issues as to the respondent’s ability to pay whatever sum might be thought to be the applicant’s need have yet to be determined.  That, of itself, is not an easy issue because the respondent’s evidence is that he does not have the funds to do so. 

10. The applicant’s position is that payments to a family company demonstrate an ability to pay.  That issue will require some detailed consideration of the relationship between the company and the respondent.

11. The respondent presently has, according to his latest financial statement, some $16 000 in a bank account.  The applicant has some $10 and has borrowed the funds to bring this application.

Conclusion

1. I am satisfied therefore that the applicant is in immediate need of financial assistance and an appropriate order is that she be paid urgent maintenance in the sum of $550 a week commencing immediately up to and including 23 June 2014.

Application to transfer proceedings

1. The second application is an application for a transfer of the proceedings to the Brisbane Registry.

2. The only link to Sydney is that the applicant prior to the marriage lived here and has returned here since the marriage ended.  All of the property of the marriage is in Queensland.  The main property assets owned by the respondent prior to the marriage are owned in Town A.  All of the assets brought into the marriage seem to have been contributed by the respondent.

3. Issues have arisen in relation to the applicant’s entitlements that may or may not have arisen from her employment at the hospitality business.

4. The company itself will need to be valued. 

5. Thus the respondent says that he proposes to call at least one witness in relation to those issues. 

6. It is true that valuers can be appointed to value the premises from Brisbane. They can, if necessary, give evidence by telephone but if they were required to be available for cross-examination in person, as not infrequently happens with financial experts that need to be shown financial documents in the course of cross examination that would increase the cost of the hearing.

7. Further, the respondent says that he is responsible for the daily operation and management of the hospitality business which, due to a down turn in business means he has to be present at the hospitality business for longer hours to manage his staff and customers.

8. If the matter were to be transferred to Brisbane it would mean that it would be more expensive for the applicant.  In order to defray this expense the respondent is prepared to pay $1 000 towards her expenses for travel and accommodation for each appearance in Brisbane including a conciliation conference or mediation.  That will not take into account the extra expenses that are involved in her instructing, if she needs to, lawyers in Brisbane.

Conclusion

1. However taking all these things into account I think that it is appropriate to transfer the matter to Brisbane save for the hearing of the interim maintenance application on 23 June 2014. 

2. I make the orders set out at the commencement of my judgment. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 12 May 2014.

Legal Associate:

Date: 11 June 2014