IPEK & CARSON

[2012] FamCA 424

FAMILY COURT OF AUSTRALIA

IPEK & CARSON [2012] FamCA 424

FAMILY LAW – PROPERTY – Order characterised as interim property alteration

Family Law Act 1975 (Cth)

Strahan and Strahan (2011) FLC 93-466

APPLICANT: Ms Ipek

RESPONDENT: Mr Carson

FILE NUMBER: SYC 588 of 2011

DATE DELIVERED: 1 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 June 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Pearson Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Craddock Murray Neumann

Orders and notations

1. Within 7 days from the making of these orders by way of interim property order, the husband shall do all acts and things and sign all necessary documents to enable the wife to borrow the sum of $100,000 secured by mortgage registered  on the title of the Suburb R property, and the husband shall thereafter make and be responsible for the payment of all moneys due and owing pursuant to the Suburb R mortgage, the overdraft account and all other accounts secured by the Suburb R mortgage.

2. In the event the husband chooses to do it, he is at liberty to use any proceeds of the sale of the specified collection due for auction between 24 and 27 July 2012 to either pay the capital or the interest in respect of the borrowing referred to in order 1 above.

3. Both parties’ costs of today be reserved.

4. Leave granted to the wife, only in the presence of her lawyer in the exhibits room of the Sydney Registry, to inspect the documents produced under subpoena by National Australia Bank in relation to the husband’s partner and I note that the wife’s lawyer, in her presence, has indicated to me that she understands what the Harman obligation means.

5. Leave granted to the wife to inspect material produced under subpoena from the husband’s lawyers in relation to the costs that have been charged and paid.

6. Leave granted to the husband to inspect material produced under subpoena from the National Australia Bank and the documents produced by his lawyers.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ipek & Carson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 588 of 2011

Ms Ipek

Applicant

And

Mr Carson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The wife has filed an Application in a Case on 19 January 2012. At application 7, she seeks an order in the following terms:

   “Within 7 days from the making of these orders, the husband shall do all acts and things and sign all necessary documents to enable the wife to borrow the sum of $100,000 secured by mortgage registered  on the title of the [Suburb R] property, and the husband shall thereafter make and be responsible for the payment of all moneys due and owing pursuant to the [Suburb R] mortgage, the overdraft account and all other accounts secured by the [Suburb R] mortgage, the characterization of such payment to be determined by the trial judge.”

2. I have indicated in conversation with counsel for the husband, if I make that order I will be characterizing it as an interim property order.

3. In this case the parties are scheduled to have a two day hearing in relation to parenting and property matters commencing early in September 2012. The wife seeks to be able to borrow $100,000 for the purposes primarily to fund that hearing and for any other purposes for which she needs those funds.  

4. The husband points to the fact that he is making substantial contributions at the moment towards the wife’s household.  Those payments, so far as I can tell from a brief perusal of the papers, is about $3,000 per week.

5. When the husband filed his financial statement in 2011, he relied upon his 2010 taxable income, which was in the order of about $510,000 gross per annum. In 2011 his taxable income had increased by about $180,000 to approximately $691,000 and based on BAS statements filed this year, it is likely to be more than that for the 2012 year.

6. Counsel for the husband conceded that the husband had the capacity to finance the borrowing that has been sought by the wife. The borrowing, of course, could be only for a period of three months, if the matter by agreement during the trial. It could take a period of time longer than that, depending on what the trial judge’s commitments might be in terms of judgment writing.

7. The wife has obtained approval from the National Australia Bank and on an interest only borrowing basis, the expected monthly payment is about $540.83 per month.

8. The husband points to one asset which is currently in the process of being sold by him. The asset consists of a specified collection which is on consignment with an auction date somewhere in the range of 24 – 27 July 2012. By the time that money came through the trial would be very much upon the parties. Any issue in relation to capital gains tax would need to be attended to.

9. It seems to me that if the husband wants to use the proceeds of that sale having allowed for capital gains tax, to defray the borrowing that is going to be made if the wife’s application is made, then that could be facilitated.

10. The principles that I apply are those set out by the Full Court in Strahan and Strahan (2011) FLC 93-466. I can only make an order that is appropriate and in the interest of justice and I have to make an order that is within the confines of what the wife might receive under s 79 on a conservative basis.

11. The husband concedes in his application that the wife should receive 60 percent of the overall assets. Obviously an interim order for $100,000 is conservative if that is the final result.  

12. The only question that remains is whether or not it is appropriate to make the order at this time. The husband has the ability, through his income, to fund his litigation in whatever way he chooses. The wife does not have that ability. It is appropriate at this time to level the playing field so that the wife is not beholding to the husband in relation to her ability to conduct her case or to do whatever she would like to do in the next little while. 

13. Accordingly, it is appropriate that I make the order and I make the order in the terms of paragraph 7 of the wife’s Application in a Case filed 19 January 2012 with the amendment that that order is made by way of interim property alteration.

I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 1 June 2012.

Associate: 

Date:  6 June 2012