Golding & Marks
[2024] FedCFamC1F 644
•25 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Golding & Marks [2024] FedCFamC1F 644
File number: SYC 6135 of 2024 Judgment of: SCHONELL J Date of judgment: 25 September 2024 Catchwords: FAMILY LAW – PARENTING – Interim orders –Where the wife sought orders for the children to live with the wife, sole parental responsibility to the wife, and the husband to only spend supervised time with the children – Where the husband conceded that the children should live with the wife, opposed sole parental responsibility to the wife, and sought that the children spend time with him in a fortnightly arrangement – Where the husband and wife both allege current illicit drug use of the other – Where there are allegations of family violence – Consideration of s 60CC – Where the Court must act cautiously as competing allegations are unable to be resolved – Where orders made for the children to live with the wife and to spend supervised time with the husband once a week.
FAMILY LAW – PROPERTY – Interim orders – Where the wife sought interim property orders in two lump sums and then a periodic payment met from the proceeds of sale of the former matrimonial home – Where the husband sought interim property orders in equal lump sum payments to the husband the wife respectively – Where the Court is not satisfied that there are sufficient assets to make order sought by the husband – Where the Court is not satisfied that the order sought by the husband would be capable of being reversed or considered at a final hearing – Order made for interim property orders to the wife in the sum of $100,000.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2)(a), 60CC(2A), 60CG, 69ZL(1), 79, 80(1)(h) Cases cited: Adamson & Adamson [2018] FamCA 523
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Fitzwaterv Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Marvel & Marvel(No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Medlow& Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166
Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 72 Date of hearing: 19 September 2024 Place: Sydney Counsel for the Applicant: Mr Chhabra Solicitor for the Applicant: Doolan Wagner Family Lawyers Counsel for the Respondent: Mr Todd Solicitor for the Respondent: Holmes Donnelly & Co Solicitors ORDERS
SYC 6135 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GOLDING
Applicant
AND: MR MARKS
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
25 SEPTEMBER 2024
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The children X, born 2014, and Y, born 2019, live with the wife.
2.The children spend supervised time with the husband each Saturday for up to five hours at times as agreed and failing agreement commencing at 10 am each Saturday and concluding five hours later.
3.The parties are to within seven days of these orders attend upon a professional supervision agency agreed upon by the parties and failing agreement either B Family Services or C Family Services for the purposes of doing an intake session with the first supervision session to occur as soon as possible thereafter.
4.The wife is to cause the children to be delivered to the supervisor at a location agreed upon between the wife and the supervisor.
5.The parties are to share equally the cost of the intake session with the husband to meet the cost of supervision. If any party requests the preparation of a report, they are to meet the cost of the report.
6.The parties are to do all acts and things and sign all documents necessary, upon the settlement of the sale of the property at D Street, Suburb E, to instruct the solicitors acting on the sale to cause the net proceeds after payment of costs of sale, agents commission, adjustments and discharge of the mortgage to be disbursed as follows:
(a)Payment to the wife of $100,000 by way of partial property order; and
(b)The balance to be invested in a controlled monies account and not to be disbursed other than with the written consent of both parties or by way of Court order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Golding & Marks has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are interlocutory proceedings that have come on urgently and where each party seeks interim parenting and financial orders. During the course of the hearing, the parties entered into a number of orders by consent providing for the appointment of an Independent Children’s Lawyer (“ICL”), arrangements for the appointment of a single expert to prepare a report in relation to parenting matters, drug testing, undertakings not to consume drugs and/or alcohol during periods when the children are in their care, as well as a suite of other orders dealing with financial matters.
Notwithstanding agreement on a range of matters, the parties remained apart in relation to a number of significant issues.
In the case of the applicant wife (“the wife”), she sought an order that the children live with her, she has sole parental responsibility, and the children spend time with the husband for three to four hours each alternate Saturday on a supervised basis. In addition, she sought orders either by way of spousal maintenance or interim property settlement for the payment to her from the proceeds of sale of a property at Suburb E, initially $62,500 and $9,210 by way of lump sums on the settlement of the sale and thereafter $10,000 per month. Settlement is to take place in late 2024.
The respondent husband (“the husband”) for his part conceded an order that the children should live with the wife, opposed sole parental responsibility and sought orders that the children spend time with him in a fortnightly arrangement from the conclusion of school on Wednesday in week 2 until the commencement of school on Monday in week 1. Thus, the husband’s arrangements sought the children live with him for five nights a fortnight in school terms as well as for half school holiday periods and time at Christmas.
The husband also sought that from the proceeds of sale of the Suburb E property each party receive $150,000 by way of interim property settlement.
DOCUMENTS RELIED UPON
The wife sought to rely upon the following documents:
(1)Further Amended Initiating Application filed 9 September 2024;
(2)Affidavit of wife filed 7 August 2024;
(3)Affidavit of wife filed 18 September 2024 limited to paragraphs 54, part of 60, 63, 66, 105, 110, 111 and 115;
(4)Financial Statement filed 7 August 2024; and
(5)Case Outline.
The husband for his part relied upon:
(1)Response to Final Orders filed 9 September 2024;
(2)Affidavit of husband filed 9 September 2024;
(3)Financial Statement filed 9 September 2024;
(4)Case Outline.
Each party sought to tender a number of additional documents for their respective case.
BACKGROUND
The parties commenced cohabitation in 2012, married in 2015 and separated in November 2023.
They have two children: X, born 2014, currently aged 10 and Y, born 2019, currently aged 5.
The wife gives evidence of the husband having significant problems with multiple issues including illicit drugs as well as conducting himself in an inappropriate sexual manner. The wife contends that the husband entered a rehabilitation clinic in 2015 to deal with a drug addiction. The wife says that the husband recommenced drinking following his discharge from rehabilitation as well as taking drugs. The wife contends that the parties had an argument in Easter 2023 which resulted in the husband attending upon a psychiatrist and being diagnosed with ADHD.
She says that in November 2023 she found the husband in the bedroom of the eldest child, masturbating to pornography while the child was asleep. The wife contends that the parties separated thereafter.
She says that in early 2024 the husband became increasingly aggressive towards her, similar to when he took drugs during the relationship. She says that there was an incident in early 2024 when the husband removed the youngest child from her care and drove off with her. She also refers to a further incident in early 2024 where she says that she was assaulted by the husband. The husband has been charged with an assault and the matter is listed for hearing before the Local Court in late 2024.
The wife also refers to a number of recent incidents including a contention that the husband has been charged by the Police with fraud and an ADVO against his partner.
The husband in his affidavit contends that the wife’s mental health has deteriorated since separation and that the wife has used an illicit substance on a number of occasions. He says that during the course of the relationship, he was an engaged parent and denies many of the wife’s assertions but does not deny that he did at one stage have an issue with his mental health. He denies ever consuming illicit substances or alcohol to a point where he put a child at risk. He admitted that he last used drugs in early 2024.
He concedes that he entered into a rehabilitation program in mid-2015 and says that that program changed his life and ever since undertaking it, “I have never again had an issue with alcohol or illicit substance use” (affidavit of husband filed 9 September 2024, paragraph 27). He says that from time to time during the parties’ relationship they both used illicit substances and consumed alcohol but says that he was not addicted or fell victim to alcohol or drug use. He denies he masturbated in his son’s bedroom.
The husband elects not to respond to the wife’s allegations involving an alleged assault in the home in early 2024, merely contending in his affidavit that he is “currently defending the charges” (affidavit of husband filed 9 September 2024, paragraph 48).
The husband, through his counsel, advised the Court that he had no notice of any fraud charges or an ADVO in relation to his partner.
Both parties agree that at a mediation in early 2024 they entered into an arrangement where the husband would spend time with the children for four days a fortnight and half school holidays. The parties unilaterally changed the terms of that agreement and provided for an additional night to the husband. The husband’s affidavit refers to him spending time with the children in accordance with that arrangement until July 2024. He says that time was then unilaterally suspended on 7 August 2024, and he has not spent any time with either child since that time other than at a Father’s Day event at school.
In relation to financial matters, the parties have recently sold a business owned in tandem with the wife’s parents. A 20% interest in the business was held by the husband and wife in their family trust. The husband decided to sell his interest in the business for $1,000,000. The husband has so far received $500,000 directly and there is a further $500,000 to come. Of the $500,000, the wife was paid $62,500 by the husband and the husband retained the balance. The husband gives evidence in his affidavit of how he expended the balance of the funds, including in part on the purchase of a motor vehicle, a loan to his partner, payment of various legal fees, a prepayment of rent and bond, monies towards the mortgage, boat loans and other expenses. The wife says that the husband breached the terms of a Heads of Agreement in how he dealt with these monies.
Forming part of the Case Outline of the husband is a Balance Sheet which records, according to the husband, that the parties have net assets of approximately $2,000,000.
SUBMISSIONS ON BEHALF OF THE WIFE
The wife’s counsel submitted that the husband’s time with the children needed to be supervised because of his history of impulsive behaviours and other issues. He took the Court to a psychiatric report relied upon by the husband (Exhibit 4). The report records “he has reported history of occasional substance abuse about 18 to 20 years ago”.
The contention in the report is inconsistent with the husband’s evidence of occasional drug use subsequent to his discharge from rehabilitation or for that matter any reference to the fact that he had an addiction that required admission into rehabilitation in 2015. The report also recorded that the husband had not mentioned any significant legal problems except some driving fines. This is inconsistent with the husband’s involvement in highly conflictual family law proceedings or that he has been charged with assault. Consistent with the submission on behalf of the wife’s counsel, I place no weight on the evidence of his psychiatrist.
The wife’s counsel also refers to the husband cutting his hair two days before the filing of the wife’s application and submits that it is vital that the children be protected against his behaviour.
Enquiries with counsel for the wife as to why the wife had agreed in early 2024 for the husband to spend time with the children for up to five nights a fortnight, given her knowledge of what she now says constitutes a risk, was met somewhat unconvincingly with the response that the wife had suspended time “as the mother has developed her understanding”. I note however the wife’s evidence at paragraph 3 of her affidavit filed 7 August 2024.
In relation to financial matters, counsel for the wife proposed that funds should be released to the wife. He relied upon documents evidencing that the husband had a history of gambling, that he had breached the terms of the Heads of Agreement and had expended large sums of money. He submitted that any payment to the husband would frustrate the wife’s final financial relief.
SUBMISSIONS OF THE HUSBAND
Counsel for the husband referred to the history of the parenting arrangements including in the period post-separation and the significant role the husband had played in the care of the children. He refers to the wife unilaterally ceasing the husband’s time with the children in March 2024 and again in August 2024. Each instance, he submits, had nothing to do with a risk of harm.
He submitted that the Court has made a series of protective orders and that there is no issue of risk identified in the wife’s affidavit beyond the incident involving an alleged assault which the husband contends he is defending. He identifies that the wife admits that she has used an illicit substance in 2024 and that any stress the children are suffering is a consequence of having missed their father.
In relation to financial matters, he submits the wife has not demonstrated that the husband has a capacity to meet a spousal maintenance order. His present income is such that it is exceeded by his weekly expenditure, and he submits that it is implicit in the wife’s application where she seeks a payment to her from the proceeds of sale of the home, that the husband does not have the capacity to meet a spousal maintenance order.
He otherwise contends that the totality of the parties’ assets is such that even allowing for addbacks, the wife’s claim on a final basis is not defeated and the Court should make an interim financial order.
APPLICABLE LAW – PARENTING
Consistent with the provisions of s 69ZL(1) of the Family Law Act 1975 (Cth) (“the Act”), I deliver reasons in short form.
As the factual contentions referred to above make plain, this is a case all about risk. In interim proceedings where there has been no cross-examination, the Court is unable to make findings on disputed facts. However, just because the Court is unable to determine or resolve a disputed fact or assertion, does not mean that the allegation of risk can be ignored.
In Marvel & Marvel(No 2) (2010) 43 Fam LR 348, cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654, the Full Court observed:
122.In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J, as his Honour then was, observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
In Isles & Nelissen (2022) FLC 94-092, the Full Court cited with approval the observations of Austin J in Fitzwaterv Fitzwater (2019) 60 Fam LR 212 to the following effect:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
In circumstances where I am unable to resolve the competing allegations, I must act cautiously. I have read the parties’ material and listened to their submissions. I am not however required to address every fact or submission made (see Whisprun Pty Ltd v Dixon (2003) 234 CLR 492).
Parenting proceedings are governed by Pt VII of the Act. In making a parenting order, s 60CA requires that I am to regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, s 60CC(2) sets out the matters that are required to be considered. No one matter takes priority over the other. The matters to be considered are:
60CC How a court determines what is in a child’s best interests
…
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In considering the matters in s 60CC(2)(a), I must, pursuant to s 60CC(2A), consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that applies in relation to the child or a member of the child’s family.
Section 60CG of the Act requires me to consider, when making a parenting order, that the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
Pursuant to s 60CC(2)(a), the Court must consider arrangements would promote the safety of a child and the person who has the care of the child. The word ‘safety’ should, in my view, be given its ordinary meaning; that is, the orders should provide some degree of protection from the matters identified in the subsection.
Each of the parties raise allegations of risk. The husband contends that the wife has used an illicit substance and alcohol to excess. The wife gives a fairly detailed history of the husband having significant issues in the past such that it led to him entering rehabilitation. She says these problems have resurfaced.
The husband’s affidavit presents these as matters largely in the past, albeit concedes that he and the wife occasionally used recreational drugs subsequent to that event.
The wife contends she has been the victim of family violence, and the husband has been charged with assault. The husband has, beyond a denial, elected to provide no evidence whatsoever in response to the wife’s contentions.
As against the allegations is the behaviour of the wife of promoting an arrangement where the children would spend four nights a fortnight with the husband increasing to five nights, only to then unilaterally suspend it. The wife’s explanation for her change in behaviour as a developing understanding of matters in relation to the husband is unsatisfactory. The wife well knew all the historical matters in relation to the husband’s use of alcohol and drugs. The wife says the children have been distressed and unsettled but have now settled in their time with her. The wife also refers to recent incidents involving allegations of fraud, and an ADVO brought by the husband’s partner. The husband says he does not know of these allegations.
I am satisfied that the Court must err on the side of caution in relation to the wife’s allegations. The children are of an age where they are unable to protect themselves. Their views, given their age, are not a relevant consideration. The husband contends that the wife’s care is comprised by mental health issues and drug use. That said, his proposed orders would see the children live primarily in the wife’s care on an unsupervised basis.
The children’s developmental needs are such as to require in their lives the presence of both parents. The parties entered into an arrangement that saw the children spending significant time with the husband only to have the wife withdraw that time. I am satisfied that it is to the benefit of the children to have a relationship with each parent, and such can be safely accommodated in the orders that I make.
The Act mandates that I must consider any history of family violence and any family violence orders, and I have taken those into account including the allegations of each party, the ADVO and the charges the husband is currently facing, albeit I cannot make findings.
I am satisfied that there are risks to the children from both parties’ behaviour and conduct. Both parties have used drugs and seem oblivious to the harm that can be occasioned to their children by their use. Each party has acted irresponsibly at times in relation to the care of their children. I am however satisfied that there are greater risks exposed by the husband’s behaviour than the wife’s behaviour.
The husband’s behaviour in seeking to remove the youngest child from the wife’s care was unacceptable and the wife raises very serious allegations in relation to the husband’s behaviour that has led to him being charged with assault by the Police. The husband has elected to provide no reply to these very serious allegations. There are significant issues about his candour arising from Exhibit 4, as well as admissions made by him to the Police in relation to allegations of fraud. On that basis, the wife’s allegations provide a basis for the possibility of harm giving risk to an unacceptable risk.
Because the wife chooses to provide time following such serious incidents does not relieve the Court of its responsibility. The wife’s affidavit raises matters of significant risk to the children in having unsupervised time with the husband. It includes being potentially exposed to violent behaviour and illegal drug use. There are also the allegations raised by the wife of the husband’s admissions as to fraud and also an ADVO brought against him by his partner. Many of these matters have been treated dismissively by the husband and where he could have given an explanation, he has chosen not to. All of these matters require a more fulsome exploration than has been possible. No documents have been subpoenaed nor has an ICL been appointed.
The wife’s counsel advised the Court that there are various professional supervision agencies who are available to offer immediate supervision services. The parties have agreed to attend upon an expert to prepare a report. The wife’s counsel indicated there was an expert who could see the parties fairly promptly, but the husband declined to take up that expert.
I am satisfied that the children’s best interests are served by a resumption of time with the husband but only on a supervised basis. That is the arrangement that best promotes the safety of the children at this stage.
There is no reason why time should not occur for up to five hours each Saturday. Once the expert report is to hand, an ICL has been appointed and the various allegations more properly explored, the matter can be relisted for the purposes of a reconsideration as to whether supervision should be continued.
The wife also sought an order for the youngest child, who is to commence school in 2025, to attend the local public school. The husband for his part sought the child attend the same school as her older brother in circumstances where he has already paid a deposit, and it was the parties’ agreement that the child attend that school. The wife opposed the husband’s application principally on the grounds that the husband did not have the financial capacity to meet the fees. The husband gave an undertaking to the Court that he would meet the school fees in relation to both children irrespective of the outcome of any financial proceedings. In circumstances where the opportunity for the child to attend that school expired in September and in circumstances where the Court would not be able to deliver reasons prior to then, I made the order the husband sought.
My reasons for doing so are that the school fees are approximately $5,000 per term or $20,000 per annum for each child. The parties’ have significant property and had previously agreed for both children to attend a private school. The wife’s reasons for changing the youngest child’s school arrangements were based on her own financial circumstances and because of work opportunities near her parent’s home with whom she intends to live. However, at paragraph 88 of her affidavit, the wife gives evidence that F School is closer to her parents’ home than the school she proposes. Where the husband undertakes, irrespective of any financial orders, to meet both children’s school fees and where I am satisfied, he has the capacity to meet the payment, I see no reason why the parties should not be held to their prior agreement, particularly in circumstances where the eldest child is attending that school. Such an arrangement is one that is in the best interests of the children.
No submissions were made as to parental responsibility, so I decline to make any order.
FINANCIAL ORDERS
The wife seeks financial orders expressed as either spousal maintenance or interim property orders.
Whilst the order is expressed alternatively as spousal maintenance, the better characterization is an interim property order in circumstances where it is being met from the proceeds of sale of the former matrimonial home. In that sense, the wife seeks two lump sums and a periodic sum to come from the proceeds of sale while the husband seeks $150,000 to the wife and $150,000 to himself.
Enquiries made with counsel for the wife as to the basis of the lump sum order reveal it is based in no more than an amount that the parties had agreed should come to the wife out of the proceeds of sale of the business, but which was not paid because of the husband’s failure to comply with the Heads of Agreement.
The husband for his part advances no principled reason as to why it should be $150,000, other than that he has ongoing expenses, he says, totalling approximately $25,000 per month. That figure, however, includes an amount for rental payments which have been prepaid according to the husband’s affidavit and mortgage payments which will cease on the sale of the home.
It is therefore agreed that the Court should make a partial property order, the issue is quantum, method of payment and whether it should be made in favour of both parties or just the wife.
APPLICABLE LAW – FINANCIAL
The jurisprudence on the circumstances in which the Court can make an order for what is colloquially called ‘interim property’ is well settled. The authority to make such an order is found through a combination of s 79 and s 80(1)(h) of the Act. Section 79 is the source of power, while s 80 enables the making of the order.
The Court must initially be satisfied that it is appropriate to make an order and that it is it in the interests of justice to make an order. If so, then the Court must determine if a case has been established for the making of a s 79 order. An exhaustive assessment of the s 79 considerations is not required.
In Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”), Boland & O’Ryan JJ observed:
132.In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
In Medlow& Medlow (2016) FLC 93-692 the Full Court observed:
86.The onus was clearly upon the husband to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat the wife's property claims. The onus was not on the wife to adduce such evidence.
Therefore, the authorities establish that Court should consider the following in making an interim property order:
(1)The Court should act conservatively.
(2)Is it in the interests of justice to make an order?
(3)Is a case established to make a s 79 order? A detailed assessment of the s 79 considerations is not required.
(4)Are there sufficient assets available for an interim distribution? However, it is not necessary to point to an immediate fund.
(5)The categories of cases in which an order will be made are not closed and are not limited solely to cost.
(6)Is the order capable of being reversed or considered at the final hearing; and
(7)Albeit that the matter can be determined pursuant to a particular section of the Act, the ultimate categorisation of the amount to be paid can be left to the final trial judge.
The parties have net assets of approximately $2,000,000 according to the Balance Sheet attached to the Case Outline on behalf of the husband. The wife elected not to put any evidence before the Court by way of a Balance Sheet nor make submissions that the Balance Sheet annexed to the husband’s Case Outline was inaccurate.
In that respect, the parties’ net assets of approximately $2,000,000 largely comprise the balance of the proceeds of sale of their business, approximately $700,000 to come from the proceeds of sale of the home, approximately $260,000 in superannuation, and otherwise comprise motor vehicles, boats, a motor home, a trailer and a watch. In circumstances where the wife is seeking an addback of $500,000, it may be that the realizable net assets of the parties are not $2,000,000 depending on the value of the movable items.
In those circumstances, I am satisfied that I should act conservatively. I need to be satisfied that it is in the interests of justice to make an order. The case as presented by the husband clearly is that it is in the interests of justice to make an order in favour of the wife where he contends, she should receive $150,000. The wife contends that it is not in the interests of justice to provide any money to the husband particularly in circumstances where she says the husband has already had a significant amount of money and the monies that he in fact received were in breach of an agreement.
I am not satisfied at this stage in the proceedings that given the contribution history and the make-up of the assets there are sufficient assets to implement a distribution in the order of that sought by the husband such that I could safely conclude that the order was capable of being reversed or considered at a final hearing. I further note that the husband currently holds in a bank account approximately $35,000, has money owed to him by way of a loan to his partner, a valuable motor vehicle, watch, and various other items of personal property.
In all the circumstances, I am not satisfied that it is in the interests of justice that there be an order in favour of the husband. The husband conceded there should be an order in favour of the wife of $150,000. It is unclear as to why there should be a periodic order or why the Court should at this stage make the lump sum payments as sought by the wife. Given the amount the wife sought and the concession by the husband that she should receive monies, I am satisfied that on balance the interests of justice dictate that there be a payment to the wife of $100,000.
CONCLUSION
I am satisfied that the orders proposed above are in the best interests of the children and otherwise just and equitable and will make orders to give effect to my findings.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 25 September 2024
0
3
1