Hasselford and Handel and Anor

[2018] FamCA 393

FAMILY COURT OF AUSTRALIA

HASSELFORD & HANDEL AND ANOR [2018] FamCA 393

FAMILY LAW – PROPERTY – Application for interim property distribution – where application resisted on the basis that any order is not just and equitable – where application resisted as potentially trespassing upon the ultimate entitlement of the other parties – where application refused.

Family Law Act 1975 (Cth) ss 75(2), 79

Stanford v Stanford (2012) 247 CLR 108
Strahan v Strahan (Interim Property Orders) (2011) FLC 93-466

APPLICANT: Ms Hasselford

RESPONDENT: Mr Handel

SECOND RESPONDENT: Ms Handel

FILE NUMBER: SYC 1871 of 2017

DATE DELIVERED: 17 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 17 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gilbert

SOLICITOR FOR THE APPLICANT: Voice Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hogg

SOLICTOR FOR THE RESPONDENT: Joplin Lawyers

SOLICITOR FOR THE 2ND RESPONDENT: Self-representing

Orders

1. Ms Handel be joined to the proceedings as a party being the second respondent.

2. The application of the wife is refused and dismissed.

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 Hasselford & Handel and Anor 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 1871 of 2017

Ms Hasselford

Applicant

And

Mr Handel

Respondent

And

Ms Handel

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is a claim for an interim or partial property settlement pursuant to s 79 of the Family Law Act 1975.  The claim was initially resisted on the basis that it would not be just or equitable for any adjustment to be made.

2. I noted to counsel that it is very different to the unusual circumstances that arose in Stanford and for reasons advanced in that exchange with counsel I do not consider that this is the sort of case in which it is not just and equitable to make any adjustment whatsoever, in particular noting that there has been an 18 year marriage where the parties made common and strenuous efforts to acquire property, where all property has ultimately been held by the husband and the dissolution of that relationship has been the ending of their common reliance and understanding.  The claim made by the wife is for an interim payment of $200,000 or $150,000 or a lesser amount to be financed either by the sale or loan against the former matrimonial home.  $150,000 is a little over 20 per cent of a conservative estimate of the net pool based on the agreed or conceded figures and based on the claim of the second respondent.  It is made against the husband's claim that he is entitled to 80 per cent of the pool and the wife is only entitled to 20 per cent. 

3. The default position in property cases is that there should be one exercise of the s 79 power rather than sequential exercises. Strahan sets out the reason why, including the potential for changes in circumstances, and fluctuations in markets and the like, to effect a change in the pool which is outside the hands of the parties.  Similar could also be noted as to changes in circumstances of the parties, which will affect their s 75(2) claims.  However, an interim adjustment does not require compelling circumstances.  It does, however, require enough reason to depart from this default position. 

4. The reason put forward by the wife in these circumstances is in order to assist with the funding of her legal proceedings.  She has paid funds to various lawyers, owes them money and estimates a significant further amount to be paid.  There has been no suggestion made that I have been able to identify that her representation will be withdrawn should she not be able to fund it by reason of an interim property distribution but I also note that it is not necessary for her to show that in order to justify an interim property distribution. 

5. The critical aspect in Strahan is that any such interim distribution be just and equitable and that is that it is able to comprise a part of the ultimate award that may come to a party and not trespass on another party's ultimate award.

6. The husband before me today argued that perhaps he should receive as much as 90 per cent of the pool.  That submission is somewhat unpersuasive in the face of his application for 80 per cent of the pool.  However, he also points to a number of specific factors. 

7. The first is a very strong contribution claim, in that he asserts that the asset pool should, on an assessment of contributions, heavily favour him because it has come from the injury award that he received.  Prior to the injury award the parties had nothing in the sense that they declared bankruptcy, although in the past they had worked together to acquire significant property.  He also points to significant s 75(2) matters partly flowing from the consequence of his accident and potential need for future treatment, the ongoing injury that he bears but also because as part of the children's litigation he ultimately seeks that two of the three children should live with him. 

8. It may also be observed, and in addition to these matters, there is always the potential question of costs following final litigation, including costs that may be sought by the intervener in final litigation.  It could not at this stage be thought that the husband's claim for 80/20 is out of the question.  That is not the same as saying that it is likely that he will receive that.  It is also not out of the question that there could be an incursion into that last 20 per cent by virtue of any costs awards and the like, or by virtue of some unforeseen change in circumstances taking place either in relation to the value of the properties or the circumstances of the parties.

9. A further difficulty arises in that there is no evidence of liquid funds being available to meet the wife's current claim.  Two options were put forward; one is the sale of the home.  That is a matter that casts a heavy burden both on the husband and the intervener particularly given he seeks the ultimate retention of the home and potentially giving the claim that he makes which, if justified, means the wife only has a limited claim.  It is also the case that he asserts that the home has been particularly renovated to deal with his needs flowing from the injury claim.  The second mechanism was a suggestion that a loan could be made against the house.  There is no evidence of a capacity to make such a loan. 

10. While the wife also sought an undefined lesser amount I am not able to again resolve the capacity to make the payment given the above factors. 

11. Turning then further to the justification, it may be seen that the wife is in difficult circumstances in the care of her children in respect of what is disclosed in her Financial Statement. Her application, however, seeks the payment to be made to her on a specific justification that legal expenses be paid. I am unable to identify an appropriate lower amount that is both safe in the sense that it will not trespass on the potential ultimate claim of the intervener and the husband or trespass on the potential costs claim that may result out of the proceedings or trespass on a potential change in circumstances which may again move the boundaries, and I am also not able to identify a particular amount which is beneficial in the sense sufficient to justify departure from the ordinary rule that there be a single exercise of the s 79 power.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 17 May 2018.

Associate: 

Date:  1 June 2018