Godfrey & Godfrey

[2007] FamCA 1686

FAMILY COURT OF AUSTRALIA

GODFREY & GODFREY [2007] FamCA 1686

FAMILY LAW – COSTS – Interim

FAMILY LAW – MAINTENANCE – Child – Payment of school fees

Family Law Act 1975 (Cth)

APPLICANT: Ms Godfrey

RESPONDENT: Mr Godfrey

FILE NUMBER: SYF 3670 of 2006

DATE DELIVERED: 10 December 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 10 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITOR FOR THE APPLICANT: Cameron Gillingham Boyd

COUNSEL FOR THE RESPONDENT: Mr Reeve

SOLICITOR FOR THE RESPONDENT: Marsdens Law Group

Orders

1. Until further order the parties are restrained from dealing with the net proceeds of sale of the former matrimonial home at B except:

   (a)for the purposes of paying to the wife the sum of $500,000.00. The character of that payment is a matter for the trial judge in the substantive proceedings between the parties. The wife is to provide a detailed accounting of the disposition of those funds within 14 days of being requested to do so by the solicitor for the husband, and in any event not later than 21 days prior to the final hearing of property proceedings between the parties.  That would be accounting to the court and to the husband, and;

   (b)for a disbursement to Warren McKeon Dickson, solicitors, on production to the solicitors for the wife of an invoice or letter of compromise evidencing the arrangements to compromise a debt owed by the husband to that firm, and;

   (c)for the payment of school fees as and when they fall due to Y School in respect of the children of the marriage.

2. Leave to the extent necessary to approach the Listing Manager in relation to the hearing of the final property proceedings.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3670 of 2006

MS GODFREY  

Applicant

And

MR GODFREY  

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in respect of interim costs or interim property settlement and interim maintenance between wife and husband. They are 55 and 53 years of age respectively. They started to live together in 1986 and were married in September of 1990.  They have two children, J and G, who are 16 and 13 years of age and in Year 11, just going into Year 12 and Year 8, going into Year 9 at Y School.

2. At the moment J lives week about with the parties. G lives predominantly with the husband after some recent problems. He had some difficulties and the wife says there was an incident as a result of which he was charged. Nevertheless she expects to see him over the Christmas period.

3. The matter has been in the list on a couple of occasions.  It is in the Less Adversarial Trial system before a Judge of this Court tomorrow in relation to parenting issues.  The parties had a property that has been sold and I think on 21 of this month the sale settled and it is going to generate something like $1 million.

4. The wife thinks that half a million of that should be paid to her and the balance of the fund should remain. I assume she wants that remainder invested in an interest bearing account to abide the final hearing. She is happy to have the character of the payment made to her, a matter for the Trial Judge. She is happy to abide an order whereby she accounts for the application of those funds.

5. The husband says that another small fund with about $41,000 in it should be divided equally between the parties. He seeks that they each receive $100,000 of the proceeds of the B property and the rest, on his undertaking as to damages, should be given to him to invest for the benefit of the parties.

6. The law about this is a bit patchy. There is authority for the proposition that interim property orders should be made only with great caution and in circumstances of necessity. The concern being that an interim order could interfere with the exercise of discretion on a final basis.  There are decisions in relation to interim costs, In the Marriage of Poletti and In the Marriage of Zschokke and others which are built on a foundation of great caution. They would have it that where there is complexity in the parties' financial affairs and where one party controls the patrimony of the family, the knowledge and access to resources and the other does not and where one party would be without legal representation and thereby the exercise of discretion under s 79 might miscarry, there could be an advance payment to that party from joint funds.

7. The irony of that law is that in most cases the parties are asking for the enormous favour of having access to their own money. Access to money to which they are unambiguously entitled.  It is the husband's case that in these proceedings the wife will receive more than half a million dollars.  It is the wife's case, no doubt, that the husband will receive more than $100,000. The parties are asking access to their funds so that they can pay their own expenses.

8. In the wife's case, she has legal fees amounting to $106,000 so far and she anticipates more.  She has costs associated with her relocation from a property at B. She has had to incur expenses in relocating to a rented property and she would like to repay those expenses and she has got to live between now and when the matter is finally resolved on some basis.

9. The husband says he is involved in litigation with previous family lawyers.  They have claimed $67,000-odd plus costs in the District Court and he would like to have money in his back pocket so that he can compromise the debt owing to them. In addition he says the parties have an obligation for the boys' school fees for the 2008 school year. Those fees are payable in three rests during the year. I think I was told a payment is due in January.

10. It seems to me that all of that is quite sensible. I am not quite sure what is behind the husband's plan about the investing.  Presumably he thinks that he can do very well for the parties in terms of investing the funds.  The trouble is the parties are in a very different interest now, as I said during the hearing I do not think, of all the investment advisers in the world, the wife will be relying on the husband to invest the money.

11. I do not have any obligation to maximise the parties' assets.  In fact I preside over a process where they are consumed.  My advice to the parties would be ‘if you wanted to maximise your assets, do not come here or do not come here as often or something of that type. I can understand the joy of having an income stream from invested funds, but the difference between what the parties can achieve by agreement in a controlled moneys account or some account on interest and what the husband can achieve going into Zinc investments or whatever he was planning to put the money into. The wife is entitled to chose her own investment adviser.

12. Otherwise I am going to grant the parties' applications in a fashion.

13. What I propose to order is that from the net proceeds of sale the wife receive $500,000 and that perhaps not later than 21 days prior to the final hearing, or within 14 days of being requested to by the husband's solicitors, she account for the disposition of those funds. Otherwise I am going to order that the parties do all things and sign all documents to cause the balance of the funds to be held in an interest bearing account on trust for the parties, save for two things.  Save that on provision of some evidence of an obligation or of an agreement of compromise, the husband is free to draw on the fund for the purposes only of compromising his debt to the firm of solicitors Warren, McHugh and Dixon; and in any event he has leave to draw on the fund for the purposes only of paying school fees for the children of the parties

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Judicial Registrar Loughnan

Associate

Date:  June 2008