LISTER & LISTER - [2020] FamCA 987

FAMILY COURT OF AUSTRALIA

LISTER & LISTER

[2020] FamCA 987

FAMILY LAW – SPOUSAL MAINTENANCE – interim – where the wife seeks that the husband pay her spousal maintenance – where the wife seeks the husband continue to pay the mortgage repayments on the former matrimonial home until it is sold – where the wife seeks a lump sum payment from the proceeds of sale to cover her relocation and rental expenses – where the husband opposes the orders as sought by the wife – where the wife is unable to adequately support herself – where the husband has the capacity to pay to the wife spousal maintenance – order that the husband make interest only mortgage re-payments until settlement of the sale – order that the wife receive $25,000 by way of lump-sum spousal maintenance from the proceeds of sale – order that the husband pay to the wife periodic spousal maintenance.

Family Law Act 1975 (Cth) ss 72, 74, 75, 80
Family Law Rules 2004 (Cth)

Bevan and Bevan (1995) FLC 92-600
Brown & Brown [2007] FamCA 151; (2007) FLC 93-316
Mitchell & Mitchell (1995) FLC 92-601
Redman and Redman (1987) FLC 91-805
Vautin v Vautin (1998) FLC 92-827

APPLICANT:

Mr Lister

RESPONDENT:

Ms Lister

FILE NUMBER:

MLC

4978

2020

DATE DELIVERED:

24 November 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

13 October 2020

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Fisken

SOLICITOR FOR THE RESPONDENT:

Gadens Lawyers

Orders

That until further order the husband pay or cause to be paid to the wife by way of periodic spousal maintenance:-
(a)As and from 20 October 2020 until settlement of the sale of G Street, Suburb B (“the Suburb B property”), the sum of $160 per week, such sum to be paid into an account nominated by the wife and paid on a monthly basis, commencing 27 November 2020;
(b)Upon settlement of the sale of the Suburb B property, the sum of $436 per week;
(c)As and from 6 months after the settlement of the sale of the Suburb B property, the sum of $960 per week.
That pending the settlement of the sale of the Suburb B property, the husband pay or cause to be paid as and when they fall due all instalments of the interest only mortgage repayments in relation to the Commonwealth Bank Home Loan secured over the title to the Suburb B property, estimated to be $800 per week.
That paragraph 6 of the orders made 13 October 2020 be varied to provide that the proceeds from the sale of the Suburb B property be applied as follows and in the following order and priority:-
(a)       In payment of the selling agent's fees, commission and expenses;
(b)       In payment of the conveyancer's costs and disbursements of the sale;
(c)In discharge of the mortgage with the Commonwealth Bank of Australia secured against Suburb B, instrument number … ("mortgage");
(d)       The amount of $25,000…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LISTER & LISTER

Details

AGLC: LISTER & LISTER [2020] FamCA 987
Case: [2020] FamCA 987
Decision Date: 24 November 2020

CaseChat Overview and Summary

In *Lister & Lister*, Johns J of the Family Court of Australia considered an application by the wife for spousal maintenance and orders concerning the sale of a jointly owned property. The dispute centred on the appropriate level of periodic spousal maintenance to be paid by the husband to the wife, and the distribution of proceeds from the sale of their former matrimonial home.

The court was required to determine the quantum of spousal maintenance payable by the husband, considering the wife's needs and the husband's capacity to pay, and to establish a clear order of priority for the application of the proceeds from the sale of the property located at G Street, Suburb B. This included determining the order of payments for selling costs, mortgage discharge, and specific lump sums to be paid to both parties, as well as repayment of certain expenses and the ultimate distribution of any remaining balance.

Johns J reasoned that a phased approach to spousal maintenance was appropriate, commencing with a lower amount and increasing it upon the settlement of the property sale, and further increasing it six months thereafter to reflect the wife's ongoing needs and the husband's evolving financial capacity. The court also made detailed orders regarding the application of the sale proceeds, prioritising selling costs and mortgage discharge before allocating specific sums to the wife and husband, and then to the repayment of specific debts. Any remaining balance was to be held in a controlled investment account pending further agreement or court order. The court dismissed the parties' applications in their entirety, save for the specific orders made regarding maintenance and property sale proceeds, and adjourned all extant applications to a conciliation conference.

Orders

Orders of the court

That until further order the husband pay or cause to be paid to the wife by way of periodic spousal maintenance:-

(a) As and from 20 October 2020 until settlement of the sale of G Street, Suburb B (“the Suburb B property”), the sum of $160 per week, such sum to be paid into an account nominated by the wife and paid on a monthly basis, commencing 27 November 2020;

(b) Upon settlement of the sale of the Suburb B property, the sum of $436 per week;

That pending the settlement of the sale of the Suburb B property, the husband pay or cause to be paid as and when they fall due all instalments of the interest only mortgage repayments in relation to the Commonwealth Bank Home Loan secured over the title to the Suburb B property, estimated to be $800 per week.

That paragraph 6 of the orders made 13 October 2020 be varied to provide that the proceeds from the sale of the Suburb B property be applied as follows and in the following order and priority:-

(a) In payment of the selling agent's fees, commission and expenses;

(b) In payment of the conveyancer's costs and disbursements of the sale;

(c) In discharge of the mortgage with the Commonwealth Bank of Australia secured against Suburb B, instrument number … ("mortgage");

(d) The amount of $25,000 paid to the Wife;

(e) The amount of $10,000 paid directly and in part payment towards the Husband’s personal loan with the Commonwealth Bank of Australia account number …70;

(f) The amount of $10,000 paid directly and in part payment towards the Applicant's C MasterCard number ending …71;

(g) In repayment to the husband of all reasonable costs incurred associated with the preparation of Suburb B for sale; and

(h) The balance then remaining to be deposited into a controlled money investment account on behalf of the parties with the wife’s solicitors, Gadens Lawyers, pending the parties’ written agreement or further Order.

That the Application in a Case filed 24 August 2020 and the Response to Application in a Case filed 25 September 2020 be otherwise dismissed.

That all extant applications be adjourned to a Conciliation Conference on a date to be fixed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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