HIRSCH & SERLE - [2014] FCCA 2247

FEDERAL CIRCUIT COURT OF AUSTRALIA

HIRSCH & SERLE

[2014] FCCA 2247

Catchwords:
FAMILY LAW – Spousal maintenance – urgent maintenance – interim maintenance – urgent spousal maintenance – immediate need of financial assistance – where applicant has parties’ child residing with her.

FAMILY LAW – Property – injunction – matrimonial home – proceeds of sale – evidence that amount owing to mortgagee will exceed the total proceeds of sale – injunction order futile.

Legislation:

Family Law Act 1975 (Cth), ss.74, 77

Cases cited:
Ashton & Ashton (1982) 8 Fam LR 675; FLC 91-285
Bonney & Bonney [2005] FMCAfam 546
Celestin & Celestin [2011] FamCA 74
Geston & Geston [2011] FMCAfam 1418
Grimshaw-Grieves & Grieves [2011] FMCAfam 125
Malcolm & Malcolm (1977) 3 Fam LN 8; FLC 90-220
Pritchard & Pritchard (1982) 8 Fam LR 805; FLC 91-289
Rickert & Pitt [2013] FCCA 693
Waugh & Waugh [2000] FamCA 1183; (2000) FLC 93-052
Williamson & Williamson (1978) 4 Fam LR 355; FLC 90-505

Chisholm, R. Australian Family Law, Lexis Nexis Butterworths, Sydney, 1987

Applicant:

MS HIRSCH

Respondent:

MR SERLE

File Number:

SYC 4696 of 2014

Judgment of:

Judge Scarlett

Hearing date:

22 September 2014

Date of Last Submission:

22 September 2014

Delivered at:

Sydney

Delivered on:

22 September 2014

REPRESENTATION

Solicitor for the Applicant:

Ms Wild

Solicitors for the Applicant:

Family Legal

Counsel for the Respondent:

Mr Battley

Solicitors for the Respondent:

Harish Prasad & Associates

ORDERS

The Respondent Husband is to pay to the Applicant Wife by way of urgent spousal maintenance under the provisions of section 77 of Family Law Act 1975 the sum of $1,000.00 per week until 5 November 2014, the first payment to be made on or before 24 September 2014.
The Application by the Applicant Wife for an order for payment of spousal maintenance under the provisions of section 74 of the Family Law Act 1975 is listed for interim hearing at 12:00 noon on Monday 3 November 2014.
The parties may rely on a Further Amended Financial Statement and one affidavit per witness in respect of the interim hearing referred to in the immediately preceding Order, such affidavit not to exceed ten (10) pages of text.
All affidavits and Financial Statements referred to in Order (3) above must be filed and served no later than 28 October 2014 and no documents will be accepted for filing after that date without leave of the Court.
The Application for an order that the proceeds of sale of the property situate at and known as Property S in the State of New South Wales should be paid into the trust account of the solicitor for the Applicant is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hirsch & Serle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4696 of 2014

MS HIRSCH

Applicant

And

MR SERLE

Respondent

REASONS FOR JUDGMENT

Application

This is an Amended Application in a Case…

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 HIRSCH & SERLE

Details

AGLC: HIRSCH & SERLE [2014] FCCA 2247
Case: [2014] FCCA 2247
Decision Date: 22 September 2014

CaseChat Overview and Summary

In the matter of *Hirsch & Serle*, Judge Scarlett considered applications by the Applicant Wife for urgent and interim spousal maintenance, and for an injunction regarding the proceeds of sale of a property. The Applicant Wife sought urgent financial assistance, noting that the parties' child resided with her.

The primary legal issues before the Court were whether urgent spousal maintenance should be ordered, and whether an injunction should be granted to secure the proceeds of sale of the matrimonial home. The Court also had to determine the procedural requirements for the upcoming interim hearing concerning spousal maintenance.

The Court ordered the Respondent Husband to pay $1,000 per week by way of urgent spousal maintenance until 5 November 2014, with the first payment due on or before 24 September 2014. The Court also listed the application for interim spousal maintenance for hearing on 3 November 2014, setting strict filing and service deadlines for financial statements and affidavits. The application for an injunction concerning the proceeds of sale of the property was dismissed, with the Court noting that evidence indicated the amount owing to the mortgagee would exceed the total sale proceeds, rendering the proposed injunction futile.

Orders

Orders of the court

The Respondent Husband is to pay to the Applicant Wife by way of urgent spousal maintenance under the provisions of section 77 of Family Law Act 1975 the sum of $1,000.00 per week until 5 November 2014, the first payment to be made on or before 24 September 2014.

The Application by the Applicant Wife for an order for payment of spousal maintenance under the provisions of section 74 of the Family Law Act 1975 is listed for interim hearing at 12:00 noon on Monday 3 November 2014.

The parties may rely on a Further Amended Financial Statement and one affidavit per witness in respect of the interim hearing referred to in the immediately preceding Order, such affidavit not to exceed ten (10) pages of text.

All affidavits and Financial Statements referred to in Order (3) above must be filed and served no later than 28 October 2014 and no documents will be accepted for filing after that date without leave of the Court.

The Application for an order that the proceeds of sale of the property situate at and known as Property S in the State of New South Wales should be paid into the trust account of the solicitor for the Applicant is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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