Hadley and Hadley (No 2)

[2015] FamCA 542

FAMILY COURT OF AUSTRALIA

HADLEY & HADLEY (NO. 2) [2015] FamCA 542

FAMILY LAW – PROPERTY SETTLEMENT – Interlocutory Application – Where the wife sought a further interim property settlement, to be categorised at final hearing – where circumstances have changed – where it is proper for there to be a further release of funds by the husband to the wife

APPLICANT: Ms Hadley

RESPONDENT: Mr Hadley

FILE NUMBER: NCC 2881 of 2011

DATE DELIVERED: 21 May 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 12 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page SC

SOLICITOR FOR THE APPLICANT: Bridge Street Lawyers

COUNSEL FOR THE RESPONDENT: Mr Duane

SOLICITOR FOR THE RESPONDENT: Kim Monnox & Associates

Orders

1. That the husband pay to the wife within 35 days the sum of $85,000.00, such sum to be categorised and taken into account in final hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hadley & Hadley (No 2) 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 NEWCASTLE

FILE NUMBER: NCC 2881 of 2011

Ms Hadley

Applicant

And

Mr Hadley

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This was an Application in a Case filed by the wife on 15 April 2015.

2. Order 1 was set down for a short hearing on 12 May 2015.

3. The order sought was for a payment of $100,000 by the husband to the wife, such sum to be categorised at the trial.

4. The Response of the husband was to seek dismissal of the Application.

5. The material relied on by the wife was her Application in a Case, her affidavit filed 14 April 2015, and an affidavit by her solicitor filed 8 May 2015.

6. The husband relied upon his affidavit and a Financial Statement filed 30 April 2015.

7. This is a matter which has now been set down for final hearing for five days commencing 19 October 2015.

Short History

1. There has been an extensive history of interlocutory hearings since the Initiating Application was filed by the wife on 7 November 2011.  Of these, four have related to interim payments to the wife.

2. The first three applications of this type gave rise to payments totalling $170,000 (two by consent and one by order of this Court).

3. The most recent application, filed 19 September 2014, for the payment of the sum of $90,000 was dismissed.

4. On the face of it, this further application could be said to have been canvassing the decision of 19 September 2014, however it is appropriate in these circumstances to carefully consider events since the September 2014 application was dismissed.

5. On 7 October 2014 the husband’s property “F Street” burned to the ground.  The fire occurred in the period after exchange of contracts for sale and shortly before settlement.  This gave rise to urgent action in the Supreme Court initiated by the purchasers for reduction of the contract price.  Insurers became parties to those proceedings.

6. One consequence for both parties was that the final hearing dates in this Court, previously allocated for five days commencing 23 March 2015, were vacated, over the opposition of the wife.

7. On 27 February 2015 proceedings in the Supreme Court settled in principle and were formally finalised on 3 March 2015.

8. There was correspondence between the parties’ solicitors inquiring about aspects of the dispute and outcomes.  The husband advised of a proposed variation in relation to the purchase of a replacement property for “F Street” and as to how the title would be held. There was no agreement.

9. On 10 March 2015 the delayed settlement of sale of “F Street” took place.

10. On 7 April 2015 the wife filed an Application in a Case and on the same day filed an Amended Application in a Case relating to proceeds of sale being held, rather than used, as foreshadowed on 24 September 2014.

11. On 8 April 2015 the husband filed his Response.

12. The Amended Application in a Case of the wife was seeking a further partial property payment; this application. The matter was listed for 12 May 2015.

13. The other matters contained in that Amended Application in a Case came back before this Court on 9 and 15 April 2015 for consideration.

14. On 17 April 2015 an interlocutory application was heard in relation to inter alia the husband’s purchase of a farm property.  There were other legitimate aspects to be determined. The decision in that matter was delivered on 20 April 2015 and new hearing dates were allocated in October 2015.

15. In this current application, a case was argued in a global way as to the heads of power relied on for the release of funds.   However the thrust of the argument was about the costs of final hearing and the circumstances of the wife.

16. Five days of final hearing had been allocated by then and a partial property payment declined, that is, on the previous application. However, there have been the further applications, outlined above, since the destruction of the “F Street” property with these consequences.

17. The parties have a further seven plus months to wait for the matter to be heard, plus a further period for the matter to be determined. The legal costs for the application prompted by these events have been incurred by both parties. The cost letters tendered into evidence are a full picture of what the parties have paid to date and will pay to see the matter to conclusion.

18. There have been changes in the asset pool with consequences to valuations.

19. For the husband, the case was argued on the basis as it had been previously. That this was a short marriage with no disagreement over the initial contribution (either $73,000 or $77,000) brought in by the wife with a trust and breeding stock, with the same or more in respect of the breeding stock taken by the wife when the relationship ended. Further, that any further release of funds has the potential to work an injustice for the husband.

20. There is of course some force in that argument, although the net asset pool has not yet been re-determined. However, I take the view that events have occurred which has created delay and extensive additional costs for both parties.

21. The wife is living in rented accommodation, has a pension income and apparently, some now limited employment.

Conclusion

1. It is proper for there to be a further release of funds in the sum of $85,000.

2. The application was for a global sum of $100,000, which was not attached to any particular cause.  However, on behalf of the wife it was submitted that the husband’s projected costs of $85,000 should also be available to the wife at least. Accordingly, there will be an Order for the release of the payment by the husband of that amount to the wife on account of projected costs and her circumstances pending the finality of the matter.

3. An Order is made accordingly.

4. I left the question for payment of fees on a forthwith basis because I know that the funds are there.  It seems that there will be 35 days before the funds can be released.  So if that is the case, there has to be notice to whatever the Investment Banking Division is and I will allow 35 days.

I certify that the preceding thirty two (32) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Cleary delivered on

21 May 2015.

Associate:

Date:  13 July 2015