JOSSELYN & JOSSELYN

[2014] FamCA 777

FAMILY COURT OF AUSTRALIA

JOSSELYN & JOSSELYN [2014] FamCA 777

FAMILY LAW – INTERIM PROPERTY ORDERS –– De facto relationship – Where the wife sought interim orders in relation to periodic spousal maintenance and a lump sum payment to her – Where the husband had not adduced evidence in relation to the property settlement – Where the wife is living with her child in temporary accommodation – Where the court determined that the husband is able to meet the regular payments sought by the wife – Where an order is made for the wife to receive a lump sum payment characterised as an interim property settlement – Where an order is made that the husband pay the wife interim periodic spousal maintenance.

Family Law Act 1975 (Cth) ss 72, 90SE, 90SG
Evidence Act 1995 (NSW) ss 131, 131(2)

APPLICANT: Ms Josselyn

RESPONDENT: Mr Josselyn

FILE NUMBER: SYC 4325 of 2014

DATE DELIVERED: 4 August 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 4 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Norwest Family Law

Orders

1. That this matter is otherwise adjourned to 9.30am on Monday 27 October 2014 in the judicial duty list. 

2. That leave is granted to the parties to inspect subpoena material produced by Westpac Banking Corporation.

3. That, pursuant to s 90SG of the Family Law Act 1975, pending further order of the court up until and including 27 October 2014:

   a.the respondent shall pay to the applicant the sum of $1,948 per week by way of urgent maintenance.

   b.the respondent shall maintain the lease repayments to Esanda Finance, with respect to the Holden … motor vehicle registration number … as and when they fall due, and the respondent shall indemnify the applicant and keep her indemnified of all such payments.

4. That the first payment of $1,948 per week is to be paid to the applicant within twenty-four(24) hours of today and, thereafter, is to be paid every seven (7) days.

5. That within seven (7) days the respondent shall pay to the applicant the sum of $25,000 by way of interim property settlement.

6. That, on or before 15 September 2014, the respondent shall file and serve any affidavits upon which he seeks to rely.

7. That, on or before 4 October 2014, the applicant shall file and serve any affidavits in reply.

8. That leave is granted to each of the parties to issue up to five (5) subpoena without further leave of the court.  Such subpoena are to be made returnable prior to the hearing on 27 October 2014.  

9. That the costs of both parties of today are hereby reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Josselyn & Josselyn 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 SYDNEY

FILE NUMBER: SYC 4325 of 2014

Ms Josselyn

Applicant

And

Mr Josselyn

Respondent

REASONS FOR JUDGMENT

1. By way of an initiating application filed on 14 July 2014 the applicant seeks orders for an immediate payment of $60,000 together with an order for spousal maintenance pursuant to s 72 of the Family Law Act 1975 in the sum of $1,948 per week plus the lease repayments to Esanda Finance with respect to her Holden motor vehicle.

2. Because of the urgency with which the matter has come forward the respondent is not in a position to deal with the matter today and because of the complexity of his financial affairs seeks an adjournment of at least four weeks in order to prepare his evidence.  That adjournment is not opposed. The next available duty dates is 27 October 2014 and in due course directions will be made for the filing of affidavits to have the matter ready for that date.

3. The court is thus faced with what orders to make between now and then bearing in mind that the court is making orders only on evidence adduced by one party.  The respondent has proposed orders as follows that he pay the respondent immediately $25,000 by way of an interim property settlement and that pending further order of the court he pay urgent spousal maintenance in the sum of $1,000 per week.

4. It is appropriate to deal with the matter not under s 90SE of the Act but under s 90SG (the parties are not married) for urgent spousal maintenance.

5. The financial statement of the applicant indicates that she has no income at all and her weekly personal expenditure is $1,948.  It was not suggested by the lawyer acting for the respondent that the wife’s weekly expenditure was unreasonable.  It does not appear, on its face, to be unreasonable and I find it to be so. 

6. It is the applicant’s evidence that from 2009 the respondent was paying her $10,000 per month to meet household expenditure.  This was made in two instalments each month of $5,000.  At the same time the respondent made the mortgage repayments while the applicant maintained the payment of utilities, household bills and general living expenditure.  Those payments continued until the time of separation on or about 29 May 2014. 

7. The applicant is presently and on a temporary basis living with her son. 

8. It will be, I am informed, the respondent’s evidence that he does not have the capacity to meet the orders as sought by the applicant however the lawyer acting for the husband very properly conceded that, as an interim urgent measure, the orders sought by the wife for periodic payments are not going to leave his client short. 

9. He thus it would appear, at least on an interim basis, to have the capacity to meet the regular payments sought by the applicant.

10. Accordingly I am satisfied that the applicant is in immediate need of financial assistance but that for the reasons given is not practical to determine finally what order should be made due to the respondent not having had the opportunity to adduce evidence. 

11. In all of the circumstances the appropriate orders to make by way of urgent maintenance under s 90SG are set out at the commencement of my reasons for Judgment.

12. The applicant pursues her claim to an interim property settlement of $60,000.   There is, at present, no evidence before the court that there are liquid assets readily available for the purpose of making that payment. 

13. The applicant has sought to tender, what would otherwise be a ‘without prejudice’ letter, which she says indicates that the sum of $50,000 is available for payment. Section 131 of the Evidence Act 1995 (NSW), generally speaking, excludes communications made between persons in dispute in connection with an attempt to negotiate a settlement. That section does not apply for a number of reasons including as provided for by s 131(2)(g) “evidence that has been adduced in the proceeding or an inference from evidence that has been induced in the proceedings is likely to mislead the court unless evidence of the communication or document is adduced to contradict or qualify that evidence”.

14. At present no evidence has yet been adduced in the proceeding that would be likely to mislead the court in the absence of that document so I did not take the document into evidence.  It may of course be different if the respondent adduces evidence that would otherwise mislead the court. 

15. The respondent however has indicated that an order should be made paying the applicant $25,000 immediately by way of interim property settlement.  I infer from that he therefore has the means to do so but it was indicated from the bar table that he would be doing so by way of borrowing funds from his mother. 

16. The applicant clearly needs some funds to rehouse herself and to provide at least some payment for her lawyers. It may well be that she is entitled to a greater sum and that the respondent has the means to pay it or it may well be that neither of those turns out to be the position but that is a manner that has to be determined on all of the evidence of the parties and that is something that can be considered on 27 October 2014.  But for the present I will make the order as proposed by the respondent as set out at the commencement of my reasons for Judgment.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 4 August 2014.

Associate: 

Date:  17 September 2014