Jobbsin and Jobbsin (No. 2)

[2008] FamCA 1151

FAMILY COURT OF AUSTRALIA

JOBBSIN & JOBBSIN (NO. 2) [2008] FamCA 1151

FAMILY LAW – PROPERTY – Amendment under slip rule – Spousal maintenance – Litigation funds

Family Law Act 1975 (Cth)

APPLICANT: Ms Jobbsin

RESPONDENT: Mr Jobbsin

FILE NUMBER: MLC 8789 of 2008

DATE DELIVERED: 3 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Cronin

HEARING DATE: 29 October 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	EFRON & ASSOCIATES
SOLICITOR FOR THE RESPONDENT:	MICHAEL T HELMAN

Orders

(amended pursuant to Rule 17.02 of the Family Law Rules)

1. That until further order, the husband pay to the wife by way of spousal maintenance, the sum of $345 per week the first of such payments to be made on 31 October 2008.

2. That the husband (and the wife to the extent that it is necessary for her to do so) do all things necessary to draw down on the mortgage encumbering the parties’ home, the sum of $10,000 to be paid to the wife for the purposes of assisting her to conduct the litigation such sum to be taken into account by the trial judge as partial distribution of property, costs or maintenance as the trial judge sees fit.

3. That if the husband pays or has paid more than $10,000 by way of legal costs and expenses to his legal practitioners, advisors and expert witnesses in these proceedings, then for each dollar he pays in excess of $10,000, he shall contribute $1 in and towards the wife’s legal costs on the same terms and conditions as those set out in paragraph (2) hereof.

4. That all outstanding proceedings be otherwise transferred to the Federal Magistrates Court of Australia for listing as soon as practicable in the duty list of a Federal Magistrate.

5. That all interim proceedings should be otherwise dismissed and removed from the list of cases awaiting a hearing.

6. I certify that it was appropriate for the parties to brief counsel to appear on their behalf.

7. That until further order, the husband pay as and when the payments fall due, the obligations pursuant to the mortgage encumbering the former matrimonial home.

8. That the husband pay the wife’s costs or the interim proceedings fixed in the sum of $7000, such costs to be paid from the husband ultimate entitlement to property settlement and there be a stay of such payment accordingly.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8789  of 2008

MS JOBBSIN

Applicant

And

MR JOBBSIN

Respondent

REASONS FOR JUDGMENT

1. On the morning of 29 October 2008 I published my judgment and made orders.

2. The orders unfortunately failed to cover two issues that had clearly been canvassed in the reasons for judgment and accordingly, I have amended those orders under the slip rule.

3. The first related to an order that the husband pay the wife’s costs.  The judgment clearly sets out that the order was to be made but I simply overlooked that when the orders were signed.

4. Both parties were present during the ensuing discussion in relation to a second issue.  They were represented by their respective solicitors but not counsel who appeared before me when the matter was argued.

5. Mr Helman told me that the husband could not pay the mortgage commitment that I propose ordering under the slip rule from his income.  He said that it had to come from capital but as Mr Waterson pointed out, the parties agreed to an injunction on 17 October to the effect that the husband could not use funds that were drawn from their joint resources.

6. Mr Helman said that the husband was only responsible for the half of the mortgage and I agreed that as a matter of law, the contractual arrangement between the mortgagee and the husband and wife may be different from the issues to be determined by this Court.  However, I pointed back to the findings that I had made in my reasons for judgment and said I was not prepared for that matter to be reargued.

7. Importantly, at that point, the husband terminated the relationship with his solicitor Mr Helman who then sought leave and was given permission, to withdraw.  The husband then wanted to reargue the case about his capacity to pay the mortgage commitment. 

8. I do not resile from anything that I said in the reasons for judgment.  During the hearing before me on 21 October, there were four issues identified and counsel for the husband conceded that there was no opposition to the husband paying the mortgage.  Where those funds were to come from was not a matter that was mentioned and in my view, could not be an issue of contention having regard to the fact that on 17 October 2008, the husband consented to an injunction in relation to specific sums of money that he had in his possession.  I have made a finding in the reasons to which I have referred that the husband has the necessary capacity to pay the mortgage and whilst he may consider he has a cash flow problem, that is not a matter that was the issue before me.

9. Accordingly, I make the amended orders under the slip rule and direct that these reasons be published as well.

I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  3 November 2008