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GUYEN & GUYEN

Case [2019] FCCA 2982 18 October 2019

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FEDERAL CIRCUIT COURT OF AUSTRALIA

GUYEN & GUYEN

[2019] FCCA 2982

Catchwords:
FAMILY LAW – Spouse maintenance – application for interim spouse maintenance – where wife demonstrates need – where husband demonstrates incapacity.

FAMILY LAW – Property – application for interim property orders – where mortgages are in default – where hardship arrangement in place with mortgagee.

Legislation:

Family Law Act 1975 (Cth), ss.65DAA, 72, 74, 75, 79, 80
National Consumer Credit Protection Act 2009 (Cth), sch 1
Real Property Act 1900 (Cth), s.57

Cases cited:

In the Marriage of Mee and Ferguson (1986) 10 Fam LR 971
In the Marriage of J M and Y A Redman (1987) 11 Fam LR 411
In the Marriage of Gyselman (1991) 15 Fam LR 219
Bevan & Bevan (1995) FLC 92-600
In the Marriage of A and A C Vautin (1998) 23 Fam LR 627
In the Marriage of DJM & JLM (1998) 23 Fam LR 396
Maroney & Maroney [2009] FamCAFC 45
Strahan & Strahan (Interim Property Orders) (2009) 241 FLR 1
Hall v Hall (2016) 257 CLR 490
James & James [2016] FamCA 1105
Medlow & Medlow (2016) 306 FLR 183
Atwood & Atwood [2017] FamCA 368
Candlin & Candlin [2017] FCCA 2211
Nsair & Gyaw & Anor [2018] FamCA 418

Applicant:

MS GUYEN

Respondent:

MR GUYEN

File Number:

SYC 1760 of 2019

Judgment of:

Judge Morley

Hearing date:

1 July 2019

Date of Last Submission:

18 October 2019

Delivered at:

Sydney

Delivered on:

18 October 2019

REPRESENTATION

The Applicant appeared on her own behalf.

Counsel for the Respondent:

Mr Wong

Solicitors for the Respondent:

Cara Marasco & Company

PENDING FURTHER ORDER, THE COURT ORDERS:

That the parties forthwith do all things necessary to have the ANZ 1 Offset account BSB … account number … (“the ANZ account”) in their joint names unfrozen by that bank, if there is any freezing mechanism in place by the bank that would prevent the parties attending and making withdrawal from that account, so that same can be operated by the parties jointly.
That forthwith upon the ANZ account being unfrozen the parties do all things necessary to have the credit balance in that account withdrawn and divided as to $12,000 to the wife and as to the balance to the husband and in the event that the bank requires that the ANZ account remain open with a minimum balance then this order shall still apply as to so much of the credit balance as can be withdrawn in those circumstances, the nature of such interim distributions to be a matter for final orders.
That the parties shall forthwith sign all documents and instruments and do all things necessary to list for sale the real property at A Street, Suburb B in the State of New South Wales being the whole of the land in Certificate of Title folio identifier … ("the Suburb B heights property") at a listing price agreed upon between them with a real estate agent agreed upon between them and…

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 GUYEN & GUYEN

Details

AGLC: GUYEN & GUYEN [2019] FCCA 2982
Case: [2019] FCCA 2982
Decision Date: 18 October 2019

CaseChat Overview and Summary

In *Guyen & Guyen*, the Federal Circuit and Family Court of Australia considered applications for interim spouse maintenance and interim property orders. The wife sought interim spousal maintenance, while both parties sought interim property orders. The core of the dispute revolved around the parties' financial positions, with the wife demonstrating a need for maintenance and the husband asserting an incapacity to pay. Simultaneously, the court addressed the pressing issue of mortgages being in default, necessitating urgent property orders to manage the financial strain.

The court was required to determine whether to grant interim spouse maintenance, assessing the wife's demonstrated need against the husband's claimed incapacity to pay. Furthermore, the court had to consider the urgent need for interim property orders to address the default on significant mortgages. This involved balancing the immediate financial pressures faced by the parties with the overarching principles of property division in family law proceedings.

Morley J applied the principles governing interim spouse maintenance, which require a demonstration of need by the applicant and consideration of the respondent's capacity to pay. The court also considered the principles for making interim property orders, particularly in circumstances where there is a risk of dissipation of assets or significant financial hardship, such as mortgage defaults. The judge's reasoning focused on the immediate financial realities and the need to preserve assets and prevent further hardship while the substantive property proceedings were ongoing. The court ultimately made orders for interim spousal maintenance and interim property orders to address the immediate financial pressures and the default on the mortgages.

Orders