Isherwood and Isherwood

[2018] FCCA 1739

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISHERWOOD & ISHERWOOD [2018] FCCA 1739

Catchwords:
FAMILY LAW – Interim property – application to vary orders for interim property settlement – whether or not s.79A applies to interim orders.

Legislation:

Family Law Act 1975 ss.75(2), 79, 79A, 80(1)

Cases cited:

Strahan & Strahan (2009) FamCAFC 166

Marchant & Marchant [2012] FAMCAFC 181
Osferatu & Osferatu [2012] FamCA 408

Harris & Harris (1993) FLC 93

Applicant: MS ISHERWOOD

Respondent: MR ISHERWOOD

File Number: SYC 2092 of 2016

Judgment of: Judge Harland

Hearing date: 4 May 2018

Date of Last Submission: 4 May 2018

Delivered at: Sydney

Delivered on: 4 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr Quinn of John R Quinn & Co

Solicitors for the Respondent: Mr Wahaab of York Law Family Law Specialists

ORDERS

1. The wife’s interim application be dismissed.

2. The wife pay to the husband the sum of $3095.16 within 30 days of today’s date.

3. The proceedings be adjourned to 7 August 2018 at 9:30am for directions before Judge Henderson.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2092 of 2016

MS ISHERWOOD

Applicant

And

MR ISHERWOOD

Respondent

REASONS FOR JUDGMENT

1. I am asked to determine the wife’s application in a case filed on 21 March 2018 seeking to vary interim property orders which were made by consent on 18 October 2017.  The parties married on 1990 and have two children.  Their oldest daughter, Ms R, died when she was 14. Their youngest daughter, Ms S, is 20.  The wife says they separated on 8 January 2015; the husband says they separated under one roof from 1 January 2014.

2. The asset pool is a little over $5 million.  The wife is seeking 50 per cent of the pool on a final basis; the husband seeks 60 per cent of the pool.  The wife initiated these proceedings on 5 April 2017 seeking final and interim property orders.  She also sought interim costs.  The parties resolved the interim costs application also on 18 October 2017 with both parties receiving $110,515 to be applied to their costs.  There is no interim costs issue as part of this application.

3. In her initiating application and supporting affidavit, the wife was seeking interim property of $500,000.  In her first affidavit filed 5 April 2017 at paragraph 25, the wife said that she was completing a (course omitted), and she wanted to buy an apartment in (country omitted) and obtain further employment working for the (employer omitted).

4. She filed an amended application in a case and then a further affidavit on 11 October 2017 where she repeated the same statement I just referred to in her April affidavit, and went on to say that she was hoping to obtain work in (country omitted) using her qualifications, and that she had investigated the costs of purchasing a small home in (countries omitted) and would need approximately $1 million to do so.

5. She said that she wanted to purchase a property so that she not be wasting her capital on rent.  The consent orders the parties entered into on 18 October 2017 provided for the wife, at order 2, to receive $1 million under conditions which included buying a property in Sydney, and thereafter being restrained from selling or encumbering it without further order of the Court.  The husband received $100,000 by way of interim property.

6. The wife then filed an application in a case on 21 March 2018, seeking to vacate order 2(b) of the orders made on 18 October 2017, which was with respect to the $1 million payment.  She now seeks a $1 million payment without any conditions upon it.  In her supporting affidavit, she refers to wishing to buy a franchise business where the franchisor is based in the (country omitted), and where she would be setting up the franchise business in (country omitted).  By the time the case came before the Court on – for interim hearing on 1 May 2018, the wife says she no longer wished to proceed with the purchase of the franchise, but rather she sought to purchase an apartment in (country omitted).

7. The wife says that there is no prejudice to the husband as it is not in dispute that she will receive more than this amount in the final settlement, which is approximately a fifth of the pool.  The wife complains that the husband is being controlling and unreasonable in withholding his consent.  She says that as it is a partial property settlement she should be able to do what she likes with that sum.

8. The husband responded to the application in a case and expressed concerns about the proposed franchise business and also expressed concerns about whether or not the wife would, in fact, have a right of residence in (country omitted), and had some concerns about the money leaving the jurisdiction.

9. The husband says that he consented to the orders in October 2017 as those orders provided him with some protections as the wife had to buy a property within the jurisdiction, and not encumber it. The husband is concerned that the wife may lose this money and then seek a further adjustment under section 75(2) at the final property hearing.

10. The husband’s solicitor submitted that before the Court could consider the wife’s application to vary the interim order, the wife would need to establish that one of the subsections under section 79A applies. I have considered this argument and can find no authority that suggests that section 79A has an application to interim property orders, and indeed, by its very nature it – of making interim property orders, it is contemplated that further orders will be made. Section 79A is designed to rectify injustice if final orders are not set aside in particular circumstances.

11. That, however, is not the end of the enquiry, and as the husband’s solicitors pointed out it is necessary to look at the authorities with respect to interim property orders, and in particular the case of Strahan & Strahan (2009) FAMCAFC 166, and in particular [139] of that decision where Boland and Ryan JJ stated:

    We also emphasise that in order to establish an appropriate case for an interim property settlement order, more is required than the mere fact that upon final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.

12. I also refer to the comments of Thackray J at [223] and [224], where he refers to the wording of section 80(1) of the act, which is expressed in a permissive form, which gives support to the Court having a discretion to make an order for interim property if it considers that it is proper in the circumstances. Thackray J pointed out that in every property case:

    …one of the parties will claim that they are entitled to a payment or transfer of property.  That cannot be enough to satisfy the Court that it is appropriate to make an interim order, as circumstances may change during the course of proceedings, such as market fluctuations or personal circumstances of the parties.

13. And he said, at [225]:

    These sorts of considerations provide a strong basis upon which the Court should maintain its traditional stance that there should ordinarily be only one hearing of disputes concerning alteration of property issues.

14. The husband’s solicitor also referred to the case of Marchant & Marchant (2012) FAMCAFC 181, and in particular [26], where the Full Court refers to Strahan and makes similar comments to that above.  I also refer to decision of Watts J in Osferatu & Osferatu (2012) FAMCA 408. In that case Watts J referred to the decisions of Harris & Harris (1993) FLC 93 466 and the statements made by the Full Courts in both Harris & Harris and Strahan & Strahan with respect to it being the usual and preferable course that there is one order under section 79 which is made after a final hearing.

15. And at [45] of his decision, he went on to say:

    A corollary of these statements made by the Full Court in both Harris and in Strahan is the proposition that as a generality the interests of the parties and the Court are better served by there being as few interim property applications under section 79 as possible.

16. I agree with that statement and I am concerned that the wife has brought an application in a case that can confer the interim orders so soon after her previous application.  Multiple interim applications only add to the workload of the Court, which is already not being able to advance cases quickly enough, and the Court should be slow to revisit interim orders unless there are appropriate orders to do so.  I am not satisfied that the wife has established that there are appropriate circumstances to make the orders she seeks, and I dismiss that application.

17. The husband also makes an application for costs in the sum of $3095.16 in accordance with the scale.  The wife opposes the application and seeks an order that the husband’s costs be reserved.  The husband seeks that the application be dealt with today, given that the wife’s application was completely unsuccessful, misconceived, and she had been invited to withdraw it prior to the interim hearing.  He also refers to the fact that I am not the docket judge in this matter, and any costs application with respect to the application that I have heard would need to come back before me, rather than the docket judge, which would result in further costs to the parties.

18. In my view, it is appropriate to deal with the costs application today.  As the husband solicitor points out, the wife has received the sum for interim costs, is able to work and will be in receipt of further property settlement.  She has been wholly unsuccessful, and in circumstances where I had indicated, brought the application soon after a previous application for a similar thing.  And in my view, in the circumstances and given the financial positions of the parties, it is appropriate to make the order for costs in accordance with the scale in the sum sought.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 4 July 2018