Hadley and Hadley (No. 2)

[2014] FamCA 1145

FAMILY COURT OF AUSTRALIA

HADLEY & HADLEY (NO. 2) [2014] FamCA 1145

FAMILY LAW – PROPERTY – Application in a Case – wife seeks funds for living and legal expenses – wife has limited funds – husband delaying proceedings – husband to pay an amount to the wife to be categorised at the final hearing

Family Law Act 1975 (Cth)

Strahan v Strahan (2009) 42 Fam LR 203

APPLICANT: Ms Hadley

RESPONDENT: Mr Hadley

FILE NUMBER: NCC 2881 of 2011

DATE DELIVERED:

25 February 2014

Ex tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Cleary J

JUDGMENT OF: Newcastle

HEARING DATE: 24 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page SC

SOLICITOR FOR THE APPLICANT: Bridge Street Lawyers

COUNSEL FOR THE RESPONDENT: Mr Cummings SC

SOLICITOR FOR THE RESPONDENT: Catherine Henry Partners

Orders

1. That on or before 24 March 2014 the husband shall pay to the wife the sum of $40,000 ($15,000 of which is to be attributed to projected legal costs of mediation), such sum to be categorised and taken into account at the 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

REASONS FOR JUDGMENT

1. In this matter there are no appearances, none were required.  By an Amended Application in a Case filed on 23 December 2013 the wife seeks the following order: 

   (1)That the husband forthwith pay, or cause to be payed to the wife, the sum of $90,000, such sum to be categorised and taken into account by the trial judge at the final hearing. 

2. The application is a combined one for, and I quote the words of the wife in par 9 of her supporting affidavit, “Funds to live on and to pay my lawyers”.

3. The wife filed her final initiating application on 7 November 2011.  Her final orders sought reflect the state of the wife’s knowledge of the parties’ finances.

4. The orders that she asks for are that the husband make full disclosure of the parties’ financial position, and that she have an adjustment of 35 per cent of the net asset pool, whatever that asset pool proves to be. 

5. The response of the husband, filed on 9 February 2012, was to agree with that part of the wife’s application which referred to each party keeping whatever was in his and her name, possession and control.  Effectively, by this response, the husband is asking for there to be no adjustment in favour of the wife. 

6. It is uncontested that the assets of the parties are all in the husband’s name and were almost entirely owned by him prior to the parties’ relationship commencing. 

7. Just as he resists the final orders, the husband has been resistant to moving swiftly to finalise valuations and other matters of disclosure in order for this matter to be heard and determined or resolved by negotiation.  I accept the assertion of Mr Page SC that his client is “longing to be in a position to put an offer and will do so when the value of the net asset pool is established”.

8. Perhaps the husband is resentful of the time and expense of putting a value on assets he owned prior to the marriage.  Whatever the cause, there has been delay on the husband’s side. 

9. It is two years and four months since the first application was filed.  Moneys have been paid by the husband in response to previous applications of a similar kind; $90,000 on 17 July 2012 and $40,000 on 7 May 2013.  Unfortunately, legal costs have been incurred in pressing for disclosure and the undertaking of valuations on behalf of the wife.  From the perspective of the husband, he has been paying legal costs for the wife in order to cause him to progress the matter.

10. The parties are presently aged 56, in the case of the wife, and 66, for the husband.  They married in 2006 and separated in 2011.  This is therefore a short marriage of five years and there are no dependents. 

11. The wife has limited means.  She has a widow’s pension and whatever is provided by the husband.  At separation she moved away from the home property taking 36 animals with her.  She is renting a property that accommodates that situation.  She is unable to make a decision about where to live, and consequentially whether she will be in a position to keep and maintain the animals.

12. The husband’s material suggests that he is presently having financial struggles and has significant indebtedness secured on the property where he lives.  There has also been an alleged significant loss of capital through a loan by the husband to his son, which it is said is unlikely now to be repaid. 

13. Previous funds paid to the wife have been used for rental of the rural property she lives on and feed and maintenance for the animals.  The financial statement of the wife reveals expenses of $2913 per week, which includes almost a thousand dollars per week for food and supplies for the animals.

14. I accept the submission of Senior Counsel for the husband that it is an unrealistic level of expenditure which the wife simply cannot afford.  Senior Counsel referred to the situation as the wife having an unproductive hobby.  It may well be that ultimately the wife concludes that she will not be able to continue to live in this way.  Certainly, the venture with the animals is not income-producing.  However in my view, that decision should not be imposed on the wife by the consequences of delay in the settlement of the financial matter between the parties.  She has sold five animals already.

15. I also accept the submission of Senior Counsel for the husband that the money which has been paid to the wife already has been spent, and any further money is likely also to be spent in the same way on legal costs and living expenses for the wife, with provision for the animals.  It will not be able to be clawed back, to use that expression, and I take that into account. 

16. The wife has been advised that her costs will be in the order of $50,000 if there is a contested final hearing, and $15,000 to attend at mediation.  She presently has outstanding legal fees of about $16,000, including fees for this application.  Those figures do not appear to be controversial.

17. The decision in Strahan v Strahan (2009) 42 Fam LR 203 is authority for the procedure for such an order for release of funds being made.

18. In considering whether it is appropriate in the circumstances for the further release of funds I take into account that the wife has limited income, and that she does have present legal expenses, and the need for legal expenses for the future. 

19. I consider it is appropriate to make an order in the circumstances where the matter has not yet been set down for hearing.  However, that order should be the $15,000 to be attributed to the projected legal costs of the mediation and a sum of $25,000 to be used for the wife as she sees fit, no doubt for living expenses, with all funds to be categorised in the final hearing. 

20. Orders are made accordingly.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 February 2014.

Associate: 

Date:  6 May 2014