HERMANSON & TRAVISS - [2019] FamCA 343

FAMILY COURT OF AUSTRALIA

HERMANSON & TRAVISS

[2019] FamCA 343

FAMILY LAW – PROPERTY – Interim distribution.

Family Law Act 1975 (Cth) s 75, 79, 80, 117(2)

Harris and Harris (1993) FLC 92 378
Medlow & Medlow [2014] FamCA 530
Strahan & Strahan [2009] FamCAFC 166
Zschokke [1996] FamCA 79

APPLICANT:

Mr Hermanson

RESPONDENT:

Ms Traviss

INDEPENDENT CHILDREN’S LAWYER:

Morton Family Lawyers

FILE NUMBER:

SYC

2516

2017

DATE DELIVERED:

3 June 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

21 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Ms Kennedy

SOLICITOR FOR THE RESPONDENT:

Cominos Family Lawyers

Orders

That by way of interim property settlement the husband to pay from his D Bank account the following forthwith:

The sum of $608,130 to the wife being $308,000 in respect of legal fees, $207,130 for ongoing living expenses and $93,000 for legal fees paid from family advancements.
The husband pay to himself the sum of $200,000 by way of payment for legal fees.
The balance remaining be paid into a joint account in both parties’ names for the payment of Capital Gains Tax of $330,000 resulting from the on the sale of shares by the husband, payment of the children’s school fees at the B School up to 2021 or as agreed with the balance remaining to be paid as agreed.

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 Hermanson & Traviss 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 2516 of 2017

Mr Hermanson

Applicant

And

Ms Traviss

Respondent

REASONS FOR JUDGMENT

This was an application for interim property distribution by the wife seeking payment to her of some $775,000.
The application was in part agreed and in part resisted by the husband. The husband sought a distribution of funds to both he and the wife by way of an interim property distribution in different terms to that which the wife sought.
Ms Kennedy of Counsel appeared for the wife and Mr Richardson SC appeared for the husband.
The fund of money for payment to the parties is $1,350,000 held by the husband in a D Bank account. The money is the remainder from the sale of shares that the husband sold post separation.
In essence both parties seek a distribution from the fund for legal fees.
In addition the husband says money needs to be set aside to pay the children’s school…

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 HERMANSON & TRAVISS

Details

AGLC: HERMANSON & TRAVISS [2019] FamCA 343
Case: [2019] FamCA 343
Decision Date: 3 June 2019

CaseChat Overview and Summary

In *Hermanson & Traviss*, Henderson J of the Family Court of Australia considered an application for interim property settlement between a husband and wife. The dispute concerned the distribution of funds from the husband's D Bank account to meet various financial obligations of the parties.

The court was required to determine the appropriate interim distribution of funds from the husband's account, specifically addressing the wife's entitlement to legal fees and ongoing living expenses, the husband's entitlement to legal fees, and the provision for capital gains tax and children's school fees.

Henderson J ordered that the husband pay $608,130 from his D Bank account to the wife, comprising $308,000 for legal fees, $207,130 for ongoing living expenses, and $93,000 for legal fees already paid from family advancements. The husband was also permitted to pay himself $200,000 for his own legal fees. The remaining balance in the account was to be paid into a joint account, to be used for the payment of $330,000 in capital gains tax arising from the sale of shares by the husband, and for the children's school fees at B School up to 2021, or as otherwise agreed between the parties, with any remaining balance to be paid as agreed.

Orders

Orders of the court

That by way of interim property settlement the husband to pay from his D Bank account the following forthwith:

The sum of $608,130 to the wife being $308,000 in respect of legal fees, $207,130 for ongoing living expenses and $93,000 for legal fees paid from family advancements.

The husband pay to himself the sum of $200,000 by way of payment for legal fees.

The balance remaining be paid into a joint account in both parties’ names for the payment of Capital Gains Tax of $330,000 resulting from the on the sale of shares by the husband, payment of the children’s school fees at the B School up to 2021 or as agreed with the balance remaining to be paid as agreed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.