Gresham and Gresham (No 3)
[2019] FamCA 983
•20 December 2019
FAMILY COURT OF AUSTRALIA
| GRESHAM & GRESHAM (NO. 3) | [2019] FamCA 983 |
| FAMILY LAW – ORDERS – Stay of property orders only granted on terms. |
| Family Law Act 1975 (Cth) s 106A |
| Aldridge & Keaton [2009] FamCAFC 106 Alexander & Cambridge Credit Corp (1985) 2 NSWLR 685 Clemett & Clemett (1981) FLC 91-013 Fluvium v Carlson [2012] FamCA 831 Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 K & B [2006] FamCA 848; (2006) FLC 93-288 The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [1986] HCA 13; (1986) 160 CLR 220 Trahn & Long (No.2) [2008] FamCAFC 194 |
| APPLICANT: | Ms Gresham |
| RESPONDENT: | Mr Gresham |
| FILE NUMBER: | SYC | 7914 | of | 2016 |
| DATE DELIVERED: | 20 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 17 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Williams SC |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC |
| SOLICITOR FOR THE RESPONDENT: | Watson & Watson Solicitors |
Orders
Order 23 of Orders made 11 October 2019 is stayed pending further Order or pending the hearing and determination of the Wife’s Appeal.
That forthwith and pending further Order or pending the hearing and determination of the Wife’s Appeal the Applicant Wife and the Respondent Husband cause the whole of the rent received by her in respect of the tenancy of the property at D Street, Suburb E to be paid and applied as follows:
(a) In full repayment of the monthly mortgage to the Australia and New Zealand Bank (“ANZ”);
(b) To pay the rates to Suburb E Council and Insurance of the property;
(c) Any costs associated with the maintenance of the property whilst let and required in order to prepare the property for sale; and
(d) After payment of the above the remainder to be retained by the Wife which amount shall be in full payment of amounts required to be paid by the husband pursuant to Order 30 of the Orders of 11 October 2019 including all obligations of the Husband to pay spousal maintenance to the Wife.
That the Applicant Wife forthwith do all acts and things and complete all documents so as to comply with Orders 16, 17 and 24 of the Orders of 11 October 2019 being:
(a) To divide equally funds in the UK Investment Bond and close the account;
(b) To divide equally the funds or liabilities associated with the ANZ Joint Bank Accounts and close the accounts;
(c) Sign all documents and execute all consents necessary to transfer her interest in the property known as G Street to the Husband with any costs associated therewith to be equally borne; and
(d) Sign all documents and give all consents necessary to affect an equal division of the Country Q Pensions in the Husband’s name being the BB Pension and the CC Pension.
In the event that the Applicant Wife refuses or neglects to execute any Deed, document or instrument necessary to give effect to all or any of these Orders then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such Deed, document or instrument in the name of the Applicant Wife and to do all acts and things necessary to give validity and operation to the Deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gresham & Gresham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7914 of 2016
| Ms Gresham |
Applicant
And
| Mr Gresham |
Respondent
REASONS FOR JUDGMENT
This was an application for a stay of parenting and property orders by the wife in relation to a final judgment and Orders published on 11 October 2019.
Mr Williams SC appeared on behalf of the wife and Mr Lethbridge SC appeared upon behalf of the husband. The husband resisted the stay, however, proposed a minute of order in the event it was granted.
Each party agreed that there had been errors in respect of parenting orders and property orders which were amended by agreement pursuant to the Slip Rule, to the parties’ credit.
The documents read for the wife were as follows:
a)Application in a Case filed 26 November 2019;
b)Affidavit filed 26 November 2019;
c)Notice of Appeal filed 7 November 2019;
d)Case outline prepared by her Counsel; and
e)An aide memoire prepared by the wife at the hearing in relation to her assertion of rent received and outgoings in respect of the former matrimonial home at Suburb E.
For the husband:
a)Response to an Application in a Case filed 16 December 2019;
b)Financial Statement and Affidavit filed 16 December 2019;
c)Tender bundle exhibited to the Affidavit; and
d)Amended minute of orders sought.
Short relevant procedural history
On 11 October 2019 I delivered a written reasons in this matter in relation to parenting and property in the following Orders are as amended by consent pursuant to the Slip Rule.
The parenting orders are as follows:
1. The children Y born … 2009, X born … 2007 and Z born … 2011 live with the mother.
2. The parties have equal shared parental responsibility for the children.
3. The children spend time with the father as follows:
a. In Week 1, from after school Thursday until before school Friday, and each alternate week thereafter; and
b. In Week 2, from after school Thursday until before school Monday, and each alternate weekend thereafter.
4. The children are to spend the first half of the Christmas school holidays in 2019 with the mother and the second half of the Christmas school holidays in 2019 with the father and alternating each year thereafter.
5. For the parent with whom the children are spending the first period of school holidays, they will return the children to the other parent’s care at 10 am Christmas morning and that parent will return the children to the other parent at 12 noon Boxing Day, or as otherwise agreed.
6. The children will spend one half of each term school holiday period with each parent, or as agreed.
7. On special occasions in the event that the children are not already with the relevant parent the children shall spend time with their parents as agreed, and failing agreement:
a. With the father on Father’s Day from 9am to 7:30pm;
b. With the mother on Mother’s Day from 9am to 7:30pm; and
c. The children shall spend time with the parent with whom they are not otherwise spending time with pursuant to these Orders from the conclusion of school until 5pm on each child’s birthday on a school day and from 9am until 1pm on a non-school day.
8. For the purposes of implementing changeover, changeover is to take place at the mother’s home at the commencement of time with the father and the mother shall collect the children from the father’s home at the conclusion of time with the father.
9. The father shall have contact with the children during the time that they are with the mother via telephone, skype, facetime or video conference on a minimum of two occasions per week with the times to be agreed between the parties, but in the absence of agreement the mother shall facilitate such time between 5pm and 7pm.
10. Each parent shall have such authority as is necessary to obtain information as would normally be available to a parent from any professional body or organisation that holds information about the children including, but not limited to doctors, hospitals, schools and sporting associations.
11. Each parent shall forthwith notify the other at the earliest opportunity if any of the children are required to attend upon a doctor or a hospital for any reason, or are absent from school due to illness.
12. Each parent shall forthwith notify the other of any medical, therapist, school or any other appointment concerning the children at the earliest opportunity but not less than 24 hours prior to that appointment.
13. Each parent shall forthwith notify the other of any major health issue concerning the children which come to the attention of that parent whilst they are in his or her care.
14. Each parent shall keep the other informed of his or her current landline and mobile telephone number.
15. The mother and father be at liberty to take the children outside of the Commonwealth of Australia for travel to and through any country that is a member of The Hague Convention on the Civil Aspects of International Child Abduction only, unless travel to a non-member country is agreed to by the other parent in writing not less than 28 days prior to the proposed date of departure, conditional on the parent’s compliance with all the following:
a. Such time occur during that parent’s time with the children in a school holiday period unless otherwise agreed to between the parties in writing;
b. That they give the other party at least 6 weeks’ written notice of the intended travel dates;
c. They give the other parent not less than 28 days’ notice prior to the date of departure, a detailed itinerary including the contact details for the children whilst overseas;
d. Not less than 7 days prior provide a detailed itinerary of such overseas travel including copies of all airline tickets (or electronic ticket details if available) and accommodation address and contact details; and
e. They ensure that the children contact the other parent whilst travelling on not less than 2 occasions in each week.
16. Each parent is permitted to take the children on an overseas holiday to a Hague Convention country only, unless otherwise agreed.
The property Orders are as follows:
17. That the parties forthwith divide equally funds in the UK investment bond and ANZ joint bank account.
18. That the wife forthwith sign all documents and execute all consents necessary to transfer her interest in the property known as G Street to the husband with any costs associated therewith to be equally borne.
19. The husband to notify the wife within 42 days of these Orders whether he proposes to sell English properties, being one or either of them.
20. In the event the husband chooses not to sell one either or one of the English properties he is to pay the wife in cash from the payment to him of his interest in the former matrimonial home 60% of the net value of the English property retained by him.
21. In the event the husband chooses to sell the English properties he is to pay the wife 60% of the net proceeds of sale after payment of Capital Gains Tax and costs of sale.
22. The wife to notify the husband within six weeks of the date of these Orders whether she intends to retain the former matrimonial home or place the property on the market for sale.
23. In the event the wife chooses to retain the former matrimonial home the wife to pay to the husband $1,988,563 within 90 days of the date of these Orders less:
a. The sum of $266,110, being one half of the net value of the St James pension in the husband’s name;
b. The sum of $50,000 to be paid into the husband’s solicitor’s trust account to effect division of the Country Q pensions and any net proceeds remaining after this order has been brought into effect are to be paid to the husband;
c. The husband to transfer his interest in the property to the wife upon her compliance with Order 23 herein.
24. Thereafter, the wife is to indemnify the husband in respect of all monies owing to her parents.
25. The wife to forthwith sign all documents and give all consents necessary to affect an equal division of the Country Q pensions in the husband’s name being BB pension and CC pension forthwith.
26. The husband to do all acts and things necessary to affect an equal division of the Country Q pensions referred to in Order 23(b) and if required by the wife for entitlement in respect of both pensions to be placed into one pension fund at the with the wife to pay any costs associated with such a requirement.
27 In the event the wife elects to sell the former matrimonial home both parties are to do all acts and things to place the property on the market for sale with an agent of their choosing at a price as agreed between them or by way of auction and as agreed and to equally share the costs of having the pool fence made compliant for the purposes of sale.
28. The proceeds of sale are to be disbursed as follows:
a. Discharge of the current mortgage;
b. Agent’s commission, solicitor’s costs and usual conveyancing adjustments;
c. To the husband, 40% of the net proceeds of sale, less the following amounts:
i. $100,000 to the wife’s parents;
ii. $266,110 to the wife;
iii. The sum of $50,000 to be paid into the husband’s solicitor’s trust account to affect a division of the Country Q pensions. Any net proceeds remaining after a division of the Country Q pensions has been brought into effect are to be paid to the husband.
29. The balance of the net proceeds of sale are to be paid to the wife with the wife to pay her parents $550,000 being the balance of monies owed to her parents.
30. Thereafter, all assets including, but not limited to, superannuation and monies in bank accounts or other financial institutions are assets of the parties absolutely.
31. Pending transfer of the home to the wife or upon settlement of the sale of the former matrimonial home the husband to be responsible for payments of the mortgage and other outgoings in respect of the property. The wife will join in with the husband if necessary to minimise payments of the mortgage and his obligation to pay the mortgage is limited to interest only.
32. The Court notes the husband will continue to pay for private health insurance for the three children of the marriage.
33. I discharge all prior orders in respect of the children including and in particular the husband’s obligation to pay private school fees for the children.
34. These orders have been amended pursuant to paragraph 17.02(1)(e) of the Family Law Rules 2004.
The wife seeks a stay of the following parenting orders:
a)3(a) Whereby the children are to spend from after school Thursday until the commencement of school Friday each alternate week with their father;
b)5(a) Specific Order in relation to the time the children spend with each parent from Christmas Eve until Boxing Day; and
c)The wife did the not need to press a stay of Orders 6(c) and 6(d) as they had been deleted by agreement pursuant to Slip Rule.
In relation to property:
a)Orders 16, 17, 19, 20, 23, 24 to 25; and
b)Additionally, the wife sought a stay of the operation of Order 22 insofar as interest would accrue on monies unpaid by her to the husband in the event she sought to buy out his interest in the former matrimonial home.
The husband sought orders set out in a minute of order tendered at trial as follows:
1. That the Application in a Case dated 25 November 2019 be dismissed.
2. That the Applicant Wife pay the Respondent Husband’s costs of and incidental to the Application in a Case.
3. That forthwith and pending further Order or pending the hearing and determination of the Wife’s Appeal the Applicant Wife and the Respondent Husband cause the whole of the rent received by her in respect of the tenancy of the property at D Street, Suburb E to be paid and applied as follows:
a. In full repayment of the monthly mortgage to the Australia and New Zealand Bank (“ANZ”);
b. To pay the rates to Suburb E Council and Insurance of the property;
c. Any costs associated with the maintenance of the property whilst let and required in order to prepare the property for sale;
d. In full payment of any and all amounts required to be paid by the husband pursuant to Order 30 of the orders of 11 October 2019 and in full payment of any and all obligations of the Husband to pay spousal maintenance to the Wife; This order was amended to reflect that monies retained by the wife from the rental were in satisfaction of his obligation pursuant to order 30
e. After payment of the above the remainder to be retained by the Wife.
4. That the Applicant Wife forthwith do all acts and things and complete all documents so as to comply with Orders 16, 17 and 24 of the Orders of 11 October 2019 being:
a. To divide equally funds in the UK Investment Bond and close the account;
b. To divide equally the funds or liabilities associated with the ANZ Joint Bank Accounts and close the accounts;
c. Sign all documents and execute all consents necessary to transfer her interest in the property known as G Street to the Husband with any costs associated therewith to be equally borne;
d. Sign all documents and give all consents necessary to affect an equal division of the Country Q Pensions in the Husband’s name being the BB Pension and the CC Pension.
5. In the event that the Applicant Wife refuses or neglects to execute any Deed, document or instrument necessary to give effect to all or any of these Orders then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act to execute such Deed, document or instrument in the name of the Applicant Wife and to do all acts and things necessary to give validity and operation to the Deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
short relevant facts
The factual matters which have changed and that are relevant to this matter since I delivered judgment are as follows:
a)On 4 September 2019 the wife entered into a lease agreement with SS Group in relation to leasing the jointly owned former matrimonial home at Suburb E;
b)On 6 September 2019 the property was leased at a rental of $4,400 per week;
c)On 4 October 2019 the wife signed the rental leasing agreement with the agents;
d)The rental for the property each calendar month is $19,119.05; and
e)The husband was unaware the wife had leased the property.
From 14 October 2019 the solicitors for the husband wrote to the wife’s then solicitors almost every second day seeking clarification of whether the wife had leased the property; where she and the children were residing; the nature of the accommodation the children and wife were living in; the rental for that property; and the lease agreement the wife had entered into for leasing the former matrimonial home. This correspondence is found in the husband’s tender bundle commencing at page 1. The wife did not respond to this correspondence until sometime in November.
The husband became aware of the wife’s new address when he read that address on her Affidavit filed for this application and obtained a copy of the lease agreement from the former matrimonial home from the leasing agents.
To date the husband has still not received a copy of the wife’s lease agreement for the premises at which she in the children reside.
The husband has set about the steps needed to split the Country Q pensions and to sell the two items of real estate in City H in accordance with the Orders of the Court.
The wife’s Affidavit was entirely silent on her new accommodation and disposition of the rental she received upon renting the property.
To correct this significant deficit in the wife’s case I accepted an aide memoire prepared by her lawyer indicating that from the rent the wife receives of $19,119.05 per month, she pays the mortgage of $9,756 per month, rates and insurance of $1,250 per month, management fees of $931 per month and pool and gardening fees of $390 per month, which is a total of $6,792 per month.
The wife asserts in this aide memoire that her rent for her new property is $8,355 per month and she, therefore, has a deficit monthly from the rent received from the former matrimonial home and payment of necessary outgoings of $1,563 per month.
The wife notified the husband in accordance with the Court Orders that she wishes to retain the Suburb E property and is therefore, by those Orders, required to pay the husband the sum of $1,672,453, otherwise the property is to be placed in the market for sale.
The Law
There is a long line of authority in relation to the principles surrounding an application for a stay of orders in relation to property and parenting matters as follows Trahn & Long[1], Alexander & Cambridge Credit Corp[2], The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd[3], Jennings Construction Limited v Burgundy Royale Investments Pty Ltd[4], Clemett & Clemett[5]. This is an area of law well settled and traversed for hundreds of years in a common law country such as ours.
[1] (No.2) [2008] FamCAFC 194.
[2] (1985) 2 NSWLR 685.
[3] [1986] HCA 13; (1986) 160 CLR 220.
[4] [1986] HCA 84; (1986) 161 CLR 681.
[5] (1981) FLC 91-013.
Mr Lethbridge referred me to a leading decision in this jurisdiction on such a matters of Aldridge & Keaton[6], a decision of the Full Court and a more recent decision of his honour Justice Kent in Fluvium v Carlson[7] particularly in relation to parenting matters.
[6] [2009] FamCAFC 106.
[7] [2012] FamCA 831.
In the decision of Aldridge[8], their Honours set out clearly the principles in a stay application. The statement of the principle of the law is set out in paragraph 18 and is as follows:
[8] Above, note 6.
·The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include.
·The onus to establish a proper basis for the stay is on the applicant for the stay.
·One does not have to demonstrate “special” or “exceptional” circumstances to support a stay.
·A person who has obtained a judgment is entitled to the benefit of that judgment.
·A person who has obtained a judgment is entitled to presume the judgment is correct.
·The mere filing of an appeal is insufficient to grant a stay.
·The bona fides of the appeal.
·A stay may be granted on terms that are fair to all parties. This may involve a Court weighing the balance of convenience and the competing rights of the parties.
·A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted.
·Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.
·Period of time in which the appeal can be heard.
Similarly in the matter of Fluvium[9], his Honour Justice Kent distilled the following principles at paragraph 6, namely:
The granting of a stay is not of itself a parenting order within the meaning of the Act, and the requirements in s 60CA, that the child’s best interests are paramount, does not apply, although the child’s interests may be very important, and will often carry great weight on an application of this kind.
[9] Above, note 7.
His Honour referred to a decision of K & B[10] in which the Full Court said:
There is no dispute in this case that the appeal is based on substantial grounds, that it is brought bona fide and is not a mere delaying tactic, that expedition of the appeal is sought and it can be dealt with it within a reasonable period of time. In these circumstances, the questions of the circumstances of the child at the time the orders were made require careful and weighty consideration.
[10] [2006] FamCA 848; (2006) FLC 93-288.
These two decisions concerned substantial changes to a child’s care arrangement in moving from one parent’s primary care to the other, or as in K & B[11], relocation from an overseas country. These are not the facts in this matter.
[11] Above, note 10.
Dealing with the application to stay parts of the parenting orders and applying the principles set out in Aldridge[12] and K & B[13].
[12] Above, note 6.
[13] Above, note 10.
The mother’s application at the trial before me was that the children continue in a regime of three nights in their father’s care and have a meal with their father on a Tuesday night in the following week or perhaps that could be an overnight time, thus a maximum of four nights a fortnight in the father’s care.
The Orders made by the Court were in line with the father’s application namely five nights a fortnight. Although this is an important circumstance for the children and a difference in the parents’ applications, it is nothing like a change of the child’s primary residence or carer or whether a child lives overseas or returns from the county to Australia.
The wife asserts that I am placing the children at risk because there was evidence of their wishes contained in her Affidavit that the children did not want additional time with their father, did not like the mid-week time or long holiday time and were content with the arrangement that had been in place since 2016. Additionally, the children had never spent significant periods of time in their father’s sole care.
The wife asserts I failed to take account of the children’s medical conditions and father’s medical conditions and made an order in the absence of the Family Report.
The parenting matter took little time at the trial as the bulk of the trial was taken up by the property application. This is hardly surprising given my finding that both parents are competent capable parents, love their children deeply and with whom the children have a strong and attached relationship. Most importantly, I asked at the commencement of the trial how I was to make an Order in the absence of some recent social science such as a Family Report or Child Inclusive Conference memorandum and was told by both Counsel that the parenting matter was of small compass, although an important compass, and I would exercise my discretion on the basis of the evidence as I found.
Going to the relevant indicia and principles in relation to stays.
I do not see that the applicant has established a proper basis for the stay of any parenting order for the following.
I asked each party’s Counsel at the commencement of the trial how I was to make a parenting order in the absence of up-to-date social science such as a Family Report or a Child Inclusive Conference memorandum. I was advised by each Counsel that the parenting orders was of small, although important compass, and I would exercise my discretion on the basis of the evidence before me.
I accept the wife is not happy with, or accepting of, the Orders made, but I do not see that is a proper basis for the stay.
The wife’s appeal in relation to parenting will not be rendered nugatory by the Orders continuing.
The prospects of the wife’s appeal in relation to parenting orders is less than clear and I assess the strength of her case in relation to parenting as poor. I took into account the wife’s assertions in relation to the husband’s epilepsy and the medical report tendered and there was no medical evidence by the wife in relation to any health issues any of the children suffered and they are healthy, well-adjusted, happy and well cared for children.
I accept the wife’s is bona fide in bringing the appeal as it is clear she objects to the Orders made by the Court, however, that is an insufficient basis for me to exercise my discretion to stay the parenting Orders in circumstances where there is no risk whatsoever in the children spending five nights a fortnight in their father’s care deposed to in the mother’s Affidavit.
Further, had there been any risk and given the children have been living in the parenting arrangement ordered by the Court, although I accept the father says the mother has not always complied, the mother would have told me of those risks and yet her Affidavit is silent. Her Affidavit, at its highest, in relation to any risk of substantial change of care arrangements impacting upon the children’s welfare, is that I did not take into account of the children’s views which were only expressed in her Affidavit, that the children had been living in a three night fortnight care arrangement and I made parenting Orders without the benefit of a Family Report, a course of action urged upon me by her Counsel at trial.
Thus, I dismiss the mother’s application for a stay of parenting orders.
Going now to a stay of the property orders, a more vexed and complicated issue.
The Orders of the Court dealt with three separate aspects of the parties’ property.
The first was splitting the overseas Country Q pensions which monies the parties cannot access until they are of retirement age and, thus, although a financial resource, are not available to them presently.
The second was the sale of properties in the wife’s name in City H which the husband is to arrange to sell and a cash adjustment to the wife from the husband’s UK pension fund which cannot be split.
On the evidence found by the husband in his tender bundle, he is well on his way to selling the English properties and has obtained detailed information as to the parties ability to split the Country Q pension funds. I cannot see that the carrying out of these Orders will in any way jeopardise the wife’s appeal, render it nugatory or result in some unfair or unjust consequence for her.
The third aspect of the property orders was the division of the parties’ matrimonial home.
The bulk of the parties’ liquid assets is in the former matrimonial home which is where the ready cash and capacity for the Appeal Court or another Judge lies to make an adjustment to either party if the appeal is successful and the orders are set aside
I assessed the value of the matrimonial pool in Australia for division being the net equity in the former matrimonial home at Suburb E at $4,980,412, excluding the debt owed to the wife’s parents of some $550,000 which money the wife expended post separation, with the husband believing it had been repaid to her parents.
The English liquid assets are the two items of real estate in the UK and are worth net $492,800.
The Country Q pensions total $2,798,101 and the St James pension, $532,219.
The wife’s superannuation Australia is $101,363 and the husband’s is $61,572.
I gave the wife an opportunity to buy out her husband’s interest in the Suburb E property despite the lack of any evidence of her capacity so to do. The wife’s Affidavit filed for this stay application does not address the steps she has taken to buy out her husband’s interest in the home at any amount, be that less or more than the amount I ordered her to pay. A capacity to do this at any figure, even $500,000 is an unknown to the Court and to the husband, yet she seeks that I stay orders which provided for sale of the home in the event she does not exercise her option to buy her husband out by 12 January 2020.
The wife has failed to provide any evidence of her current financial circumstances given her renting out solely the jointly owned matrimonial home and retention of the rental from that property.
I accept the submissions by Mr Lethbridge SC that the husband has had no opportunity to verify or test the figures set out by the wife in her aide memoire. The wife also receives child support from the husband which has not been included in her aide memoire. Given the wife’s conduct in relation to the expenditure of monies owed to her parents which the husband believed she had repaid them, it was incumbent upon her to be as full and frank as was possible in relation to her financial position.
Consistent with her behaviour post separation in expending hundreds of thousands of dollars of her parents’ money, the wife continues to make unilateral decisions in relation to the expenditure of money which has an impact upon the husband. The wife has rented a property for a sum approaching $2,000 per week and kept the rental agreement a secret from the husband and the Court. Whereas the husband rents a property for $880 per week which is suitable for him and the children to live in five nights a fortnight.
The wife asserts the husband should continue to pay spousal maintenance and submitted at the trial she would agree with Order 3 of the husband’s minute order provided 3.d. was amended to read that the husband to pay to the wife $2,600 per month, an effective spouse maintenance order. I had by my property Orders made a final spousal maintenance order in favour of the wife.
I accept the wife is bona fide in bringing the appeal in relation to the property orders and I cannot say her appeal is without merit or her case weak. There were many factual disputes to be resolved by me and a multitude of ways to deal with the vexed issue of how to deal with the expenditure by the wife of, at minimum, monies owed to her parents which her husband had believed she had repaid them and I may have fallen into error in the manner by which I dealt with this issue.
I dealt with the spouse maintenance issue by way of lumping that up with the wife’s ultimate property application and this is also a fertile area where I may have fallen into error.
Thus, as I see it the wife’s case in relation to the appeal against the property orders I made is a much stronger case than the appeal in relation to parenting orders. Although the wife again has filed no evidence to support a capacity to buy out the husband’s interest in the property, if she is to pay a lesser sum than I ordered she may be able to so and that if I do not stay the order for sale I will render her appeal nugatory in the sense of wishing to retain the former matrimonial home.
On the evidence the wife has not established the onus upon to establish a proper basis for the stay of Orders 16, 17, 19, 20, 24 and 25.
These Orders deal with splitting the Country Q pensions equally and for the wife to receive 60% of the net proceeds of the English properties. The carrying out of these Orders will in no way render nugatory the wife’s appeal in relation to the Orders in totality given there is over $4 million net equity in the former matrimonial home from which any adjustment may be made by another Judge.
In relation to the wife’s application to stay the operation of Order 22 which provides for her to pay the husband a sum of money by 12 January 2022 and he to transfer the home to her, I find there are proper grounds to order such a stay and to not do so may render her appeal nugatory, despite the lack of evidence of her capacity to buy the husband out at any figure, however I will not stay that aspect of the order in relation to interest that is a matter that can be deal with by the Court or the Judge who ultimately hears is the matter if the wife is successful.
In the exercise of my discretion, this stay will be on terms. I have formed the view that the minute of order proposed by the husband provides a just and equitable and appropriate stay on terms of the final Orders made by the Court. Those Orders effectively commence at Order 3 and provide that the wife is to pay the mortgage and all outgoings on the former matrimonial home from the rental received by her and may retain any remainder after payment of those costs.
Further, the retaining of the remainder of the rental is compliance by the husband with Order 30 of my Orders which was that the husband was to be responsible for payments of all outgoings on the home pending the transfer to him of property or settlement of sale. Given the wife seeks to stay the Orders and is renting the home out it is only proper that she pay the outgoings on the home and the husband be no longer responsible for those outgoings given the rental she is receiving approaching $20,000 per month.
I accept the submission of Mr Lethbridge that the husband has had no opportunity to verify costs the wife asserts in relation to the outgoings on the home or the rent she asserts she now pays. In those circumstances and given that the wife has provided no evidence of her capacity to buy out the husband’s interest in the property yet seeks a stay of the Orders for its sale, I find it is just and proper that the wife be responsible for the home and her outgoings pending determination of the appeal.
I will make the additional order sought by the husband that in the event the wife refuses or neglects to cooperate in relation to the sale of the UK properties and splitting of the Country Q pensions, that a Registrar of this Court is, pursuant to section 106A of the Family Law Act 1975 (Cth) authorised to sign all documents in the name of the wife to bring into effect Orders not stayed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 20 December 2019.
Associate:
Date: 20 December 2019
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