Liu and Liu

[2007] FamCA 781

FAMILY COURT OF AUSTRALIA

LIU & LIU [2007] FamCA 781

FAMILY LAW - PROPERTY - Interim orders

Family Law Act 1975 (Cth)

APPLICANT: MRS LIU

RESPONDENT: MR LIU

FILE NUMBER: MLC 7406 of 2007

DATE DELIVERED: 30 JULY 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 30 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS COLLA

SOLICITOR FOR THE APPLICANT: MOORES LEGAL

COUNSEL FOR THE RESPONDENT: MR WILLIAMS

SOLICITOR FOR THE RESPONDENT: MASON SIER TURNBULL

ORDERS

1. THAT until further order each of the husband and wife be and are hereby restrained from encumbering, or further encumbering or otherwise selling, disposing of or dealing with any property owned or jointly owned by either of them including chattels in the home save and except for compliance with the financial payments required within these Orders.

2. THAT the husband forthwith pay the Commonwealth HECS debt for the child M, estimated at $2,200 with such payment to be made from the Westpac Bank Offset Account held in the husband’s sole name.

3. THAT until further order the husband be responsible to pay the following accounts:

   (a)the home insurance and rates on the property at E, the P holiday home and the unit at C;

   (b)the Westpac Bank mortgage debt encumbering each of these properties;

   (c)the gas, electricity, water and telephone accounts for each of the home and the holiday home;

   (d)the ANZ Credit Card Account as and when payments fall due;

   (e)the Medibank Private Health Insurance cover for the family.

4. THAT from the N Cash Account held in the name of and under the control of the wife both parties be forthwith paid a sum of $25,000 as a partial settlement of property and to be taken into account by the trial Judge in the determination or conclusion of s.79 proceedings.

5. THAT otherwise the wife be entitled to retain for her sole use and expenditure the interest and income payment from that N Cash Account and from the A investments.

6. THAT on or before Friday 3 August 2007 a single expert valuer be appointed, at the joint expense of the parties, to value each of the three real properties and that such report and evidence is to be available to the Court on 21 August 2007.

   IT IS FURTHER ORDERED NOT BY CONSENT:

7. THAT until further order each of the parties respect the use and enjoyment of the home by the other and ensure the privacy and safety of the other within that home.

8. THAT the further hearing of the sole use and occupation application in respect of the home and the wife’s spousal maintenance be adjourned for hearing on 21 August 2007 at 10.00 a.m. in the interim defended hearing list.

9. THAT the parties attend a financial conciliation conference at 9.15 a.m. on Friday 7 September 2007.

10. THAT as soon as practicable the parties complete mutual and informal financial disclosure and discovery and each of them file such documents with the Court that ensures that all of their assets and liabilities are fully known to the Court and the other party.

11. THAT five (5) days prior to the financial conciliation conference each party make, file and serve a summary statement of all assets and liabilities, updated to that day, and that document is to be served upon the other party and filed with the Court.

12. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7406 of 2007

MRS LIU

Applicant

And

MR LIU

Respondent

REASONS FOR JUDGMENT

1. In the matter of Liu Ms Colla of counsel appears for the applicant wife; Mr Williams of counsel for the respondent husband. 

2. This hearing represents a first return date of the application in a case and response thereto. 

3. I have had submissions from counsel as to the issues in dispute.  Otherwise I have read the primary affidavits of each of the parties and also on behalf of the wife the further affidavit of Ms R, psychologist, filed 16 July 2007.

4. The matter was stood down for some out of court discussions and as a result the parties have agreed on certain interim orders and procedural orders.

5. The two principal matters in dispute are as to the use and occupation of the home at E, and also as to the ongoing spousal maintenance, if any, and other payments to be made for the interim support of the wife.

6. There is general agreement between the parties that pending further order the husband will continue to make certain household payments for the benefit of the family, but all of these are to be the subject of consideration or further order by the court on the adjourned hearing date.

7. The parties have indicated in respect of the two matters primarily in dispute that these issues can and will be heard within a half‑day, and have asked for an interim hearing list on a Tuesday in this court.

8. There was some discussion in court as to whether all proceedings should now be transferred to the Federal Magistrates Court.  Given, however, the availability of a court hearing date in the near future, that is on 21 August 2007 and also the request for a financial conciliation conference, I will keep the matters in this court pending further review on a subsequent date.

9. The parties own three properties:  the E property; a unit in C; and also a property at P.  Each of these need to be valued, and the parties have agreed to appoint a single expert valuer, and they must forthwith agree on that individual, and each of them is to jointly fund the costs thereof.  For that purpose there is an agreement before the court to pay out to each of the parties a sum of $25,000 from the N Cash Account held by the wife for and on behalf of the parties.

10. I have questioned counsel and have their assurance that all financial documents can be available, that discovery and disclosure will be undertaken, and there will be no financial impediment to the parties attending and negotiating at the financial conciliation conference an outcome.

11. I am asked by consent to make certain interim restraining orders in respect of property, and they will be made for the exclusive purpose of preserving and protecting assets pending the further hearing of the court. 

12. I have determined, on submissions from the parties, to immediately pay out the Commonwealth HECS debt of the daughter, M, in the sum of $2,200 from the Westpac Bank offset account.

13. I have had submissions as to whether or not there should be an interim spousal maintenance order.  The husband proposed $330 per week.  The wife sought $900 per week, and said that that was in accordance with past financial conduct of the family.  I propose to make no order.  That can and should be determined on the adjourned interim hearing defended day upon proper and detailed submissions.

14. I am not in this Judicial Duty List going to make an opposed order for the exclusive use and occupation of the home.  I understand this is a long marriage, though there has been a separation of the parties under the one roof for a significant period.  There is a dispute as to the length and circumstances of that period.  That can all be resolved on another occasion.

15. I have read the claims made on behalf of the wife in the affidavit of her psychologist but they, of necessity, may stand scrutiny and further evidence.  Again, I make no comment as to the correctness or otherwise of the claims therein, but certainly it is a matter of importance to be considered in determining ultimate outcome of that particular interim application.

16. I therefore have been requested by the parties to make a number of orders by consent, and otherwise I will make certain orders that are not by consent but are made to preserve or protect the interim situation.  

17. The wife sought an order for her personal safety and protection, based both on her evidence and that of the psychologist.  Given the lengthy marriage and period together under the one roof, albeit in very strained circumstances, I decline to make that order, but with the consent of the parties it has been indicated that an order can be made that both parties mutually respect the privacy and circumstances of the other, and that they will not undertake any action that might put in fear or endanger the other person. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:
Date: 3 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LIU & LIU