HOLLAND & HOLLAND

[2015] FamCA 680

FAMILY COURT OF AUSTRALIA

HOLLAND & HOLLAND [2015] FamCA 680

FAMILY LAW – PROPERTY – Interim distribution – wife’s application for partial property distribution for the purpose of accommodation – partial property distribution sought from the proceeds of sale of the former matrimonial home – where the amount sought is less than that the wife is likely to receive at a final hearing – no appearance by the husband – no opposition to the wife’s application on the face of the husband’s material – Strahan considered – interim orders made for part property settlement to the wife

FAMILY LAW – COSTS – Wife’s application for costs – interims order made that the wife’s costs be reserved and fixed

Family Law Act 1975 (Cth)

Strahan & Strahan (Interim property orders) [2009] FamCAFC 166; (2011) FLC 93-466

APPLICANT: Ms Holland

RESPONDENT: Mr Holland

FILE NUMBER: MLC 7019 of 2014

DATE DELIVERED: 24 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 24 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kiernan

SOLICITOR FOR THE APPLICANT: Carew Counsel

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. That within seven (7) days the solicitors for the applicant facilitate the payment of $75,000 to each of the applicant and the respondent from funds held by them upon trust for the parties with the Bank of Melbourne (account number …), such payments to be characterised as interim property settlement.

2. That the wife’s Amended Application in a Case filed 17 July 2015 and the interim application of the husband in his Response to Initiating Application filed 21 July 2015 be otherwise dismissed.

3. That the wife’s costs of and incidental to her Amended Application in a Case be reserved and fixed in the sum of $5,000.

AND IT IS DIRECTED

That my reasons for judgment delivered this day be transcribed and remain on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holland & Holland 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 MELBOURNE

FILE NUMBER: MLC 7019  of 2014

Ms Holland

Applicant

And

Mr Holland

Respondent

REASONS FOR JUDGMENT

1. I have before me today the amended application in a case filed on behalf of the wife on 17 July 2015.  That application is supported by an affidavit of the wife and a financial statement of the wife, both filed the same date. 

2. The wife in that application seeks an order for interim property settlement in the sum of $75,000, that sum to be paid from a Bank of Melbourne account held on trust for the parties by the wife’s solicitors.  The total amount held in that bank account is in the order of $520,000, it representing the proceeds of sale of the parties’ matrimonial home. 

3. The husband is representing himself in the proceedings.  The husband has filed a Response to Initiating Application on 21 July 2015.  That response is supported by the husband’s affidavit filed 21 July 2015 and his financial statement filed the same day. 

4. The husband in his response seeks a number of interim orders.  Much of the material contained in the response is misconceived in terms of the orders sought by him.  For example, he refers to a desire to undertake a mediation process and for the parties to adopt “a less combative and more holistic approach” to the litigation.

5. Much of what is sought in the husband’s interim application are orders beyond the powers of this court.  However, it is noteworthy that at paragraph 6 of that interim application the husband seeks orders in the following terms:  

   Should the court award any sums to the applicant, then I request an equal amount be afforded to myself.  I call the court’s attention to the fact that I have the increased cost of the boys and my living cost base is far larger and I, too, have debts I wish to take care of as well as the future needs of the boys and their educational, emotion and physical needs.

6. At the commencement of the hearing before me today, the husband was called.  He did not appear. 

7. Prior to me hearing submissions and delivering these oral reasons for judgment, he was again called and again did not answer the call. 

8. The husband has been called at 10 am and 10.45 am today.  The husband has not appeared in response those calls.

9. In his affidavit filed on 25 July 2015 the husband indicated that it was likely that he would not attend at this hearing.  At paragraph 16 of that affidavit, the husband deposed as follows:  

   Health concerns will prevent me from attending court on Friday, and I suggest mediation instead for reasons mentioned above. 

10. The background to these proceedings is as follows. 

11. The wife is aged 48 years.  She is employed as an administrator. 

12. The husband is aged 53 years.  He is an engineer.  He has been appearing on his own behalf in these proceedings since approximately 21 July 2015. 

13. The parties have had proceedings on foot in this court since 2014. 

14. The parties commenced cohabitation in 1991 and married in 1992.  Separation occurred in 2011.  Hence, their relationship has spanned a period of more than 20 years. 

15. There are two children of the marriage; Mr B, who is aged 18 years, and C, who is aged 16 years.  Both Mr B and C live with the husband.

16. In her affidavit, the wife sets out her current financial circumstances.  She deposes to the fact that she is working on a part time basis and has an income of approximately $760 per week.  She has been excluded from the matrimonial home, which is the major asset of these parties, since the time of separation.

17. Due to the failure of the husband to meet the mortgage liability secured against the former matrimonial home, the wife has been involved in proceedings with the ANZ bank.  She has been served with default notices as a result of the default under the mortgage.

18. As a consequence, the wife has previously made application to the Court seeking the sale of the former matrimonial home.  Orders have previously been made with respect to the sale of the former matrimonial home.

19. Settlement of that sale has now been effected and the funds standing in the Bank of Melbourne account represent the proceeds of that sale.  The wife continues to live in rental accommodation or to board with family and friends.  She deposes in her affidavit to the difficulties that causes her, in terms of her travel to and from her work. 

20. The wife, at paragraph 14 of her affidavit, sets out the matrimonial pool as it is understood by her.  The wife deposes that the parties have net assets of approximately $480,000 together with superannuation entitlements of approximately $170,000. 

21. What is sought by the wife is a payment to her which represents approximately 16 per cent of the matrimonial pool.  The wife indicates that she seeks those funds to enable her to establish herself in appropriate rental accommodation and also to enable her to meet the costs of these proceedings. 

22. The husband has filed an affidavit in response to that application.  He does not appear to challenge the wife’s estimate as to the value of the matrimonial assets, nor does he take issue with a distribution of funds to the wife.  The proviso he places upon such distribution is that he be entitled to an equal amount. 

23. In her application for final relief, the wife seeks orders for an equal division of the matrimonial pool subject to a deduction of certain amounts from the husband’s share of that pool.  The orders as sought by her today will not deprive the Court of the opportunity of making adjustments in favour of the husband if required, at final hearing, in relation to the balance of the pool remaining.

24. The husband, in his application for final relief, does not state with precision the final orders sought by him in terms of adjustment between he and the wife. 

25. The principles to be applied in terms of interim property orders are set out by the Full Court in the decision of Strahan & Strahan (Interim property orders) [2009] FamCAFC 166; (2011) FLC 93-466. I have regard to those principles in determining this matter.

26. I am satisfied having regard to the wife’s current financial circumstances that it is just and equitable to make orders as sought.  Further, having regard to the wife’s evidence as to her current living arrangements and her need for funds to secure accommodation, I am satisfied that it is appropriate that I make orders in the terms sought by her.

27. The orders sought by the wife will not prejudice either party in terms of adjustment upon the final determination of the pending property proceedings.  In circumstances where the orders sought by the wife represent a distribution to her of something in the order of 16 per cent of the pool of assets the subject of these proceedings, I am satisfied that the husband’s entitlements will not be prejudiced by such distribution. 

28. The wife does not oppose a distribution to the husband of equal amount.  Accordingly, I am satisfied that it is appropriate that an order be made in those terms. 

ORDERS DELIVERED

1. The wife has, through her counsel, made an oral application for a costs order in relation to the proceedings. 

2. The position with respect to costs is set out in s 117 of the Family Law Act1975 (Cth). That section provides that as a general rule each party should bear their own costs. Section 117(2A) sets out the matters the court should have regard to in considering what order should be made as to costs. I have regard to those matters in determining the current application.

3. I am informed by counsel for the wife that his brief fee for today is $1850.  Further, I have been provided with a statement as to costs incurred by the wife in the preparation of this interim application, the sum calculated in respect of those costs being $3399.  I am told that the total amount of costs incurred by the wife with respect to her interim application is $5249. 

4. It is said by the wife that those costs should be met by the husband in circumstances where he has failed to appear and the wife’s application has been successful.

5. These proceedings have a long history. 

6. There have been previous applications made in respect of the husband’s non-compliance with orders for the sale of the former matrimonial home.  The husband concedes in his affidavit filed 21 July 2015 that he has not wholly complied with orders previously made by me with respect to the sale of the former matrimonial home and other investments. 

7. The husband has not appeared before the Court this day to argue in relation to the current applications and he is not in a position to be heard in respect of this costs application.  In his affidavit filed in support of his response he states that he is unable to attend court due to “health concerns”. 

8. In the circumstances, what I propose to do is fix and reserve the wife’s costs. 

9. If there is a reasonable explanation for the manner in which the husband has conducted himself, he will have the opportunity to raise those issues either next week when the matter is before Justice Cronin or ultimately at the conclusion of the proceedings in terms of a broader costs application that may be made at that time as part of the trial process. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 24 July 2015.

Associate: 

Date:  24 July 2015