Manion and Manion

[2017] FCCA 3337

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANION & MANION [2017] FCCA 3337

Catchwords:
FAMILY LAW – Property – interim – interim property distribution.

Legislation:

Family Law Act 1975

Cases cited:

Berta (1988) FLC 91-916

Strahan & Strahan [2009] FamCAFC 166

Applicant: MR MANION

Respondent: MS MANION

File Number: SYC 6204 of 2017

Judgment of: Judge Henderson

Hearing date: 13 December 2017

Date of Last Submission: 13 December 2017

Delivered at: Sydney

Delivered on: 20 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Williams

Solicitors for the Applicant: Landerer & Company Solicitors

Counsel for the Respondent: Ms Linden

Solicitors for the Respondent: Linden Legal

ORDERS

1. The matter is listed on 19 April 2018 at 9:30am for mention.

2. The husband is to pay to the wife, or as she directs, the sum of $52,000.00 within 14 days by way of interim property distribution.

3. The wife is to use the money in Order 2 herein to discharge her credit card debts of $42,000.00 and provide proof of same to the husband one she has done so.

4. The remaining $10,000.00 may be used to purchase a motor vehicle or as she determines.

5. The payment of the funds will be taken into account by the trial judge at the final hearing as an interim distribution of property to the wife.

6. The husband is to provide to the wife all documents in his possession relating to the wife’s business within 42 days.

7. Both parties are to comply with disclosure pursuant to the Federal Circuit Court Rules 2001 within 42 days.

8. By consent, interim orders are made in accordance with the document marked “Exhibit 1”, dated 13 December 2017, as attached hereto.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6204 of 2017

MR MANION

Applicant

And

MS MANION

Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife for an interim property distribution of some $52,000 or about seven, perhaps 10 per cent of the matrimonial pool, to purchase a car for herself and to pay credit card debts amounting to some $42,000. The husband opposes the application.

2. Ms Linden acted for the wife, and Mr Williams, of counsel, for the husband.

3. I read the following:

   a)For the wife, her application, contained in a response filed 16 November 2017, her affidavit and financial statement filed the same day;

   b)For the husband, his initiating application and affidavit, filed 19 September 2017, affidavit of 8 December 2017 and financial statement of 19 September 2017.

4. I read the case outline prepared by the husband’s counsel, Mr Williams. I was referred to the decision of Berta[1] and I am also cognizant of the decision of Strahan & Strahan[2].

   [1] Berta (1988) FLC 91-916.

   [2] Strahan & Strahan [2009] FamCAFC 166.

5. The parties have been married for 27 years. They have one child, X, born (omitted) 2002. There is a dispute in relation to the separation date however the uncontroverted facts are, in December 2015, the mother moved to Sydney, with the child, to care for her aged mother, where they currently continue to reside. The parties leased a unit in (omitted). They have a home in Queensland. The husband moved back to Queensland in about April 2016. The wife said she travelled between the two homes. She regarded the marriage as on-foot. Physical separation occurred on about March 2017.

6. The facts also are that the husband stopped working in 2010 and received a redundancy. The wife also received redundancy around this time, and from 2010 to 2013, there was no income coming into the parties’ household. Neither party was working.

7. The wife determined to open her own (business omitted) in 2013, which has not proven to be profitable, although the wife says there may well be a profit around this time next year, as her business is picking up. It is hoped that is the case. Setting up a (business omitted) is clearly expensive, if for no other reason than expensive equipment that one must lease to carry out that endeavour.

8. The wife states, in her affidavit, the husband has about $300,000 left from the sale of their home in Property A, which they sold in about April 2013. She did not state in her affidavit that she had received $514,000 from that sale, or that the husband also received that same amount of money.

9. The home was sold in April 2013. The husband was made redundant three years prior to that sale, thus the argument that the wife used her money from the sale of Property A, or that the husband used his money from the sale of Property A, to support the family after he was made redundant cannot stand on the facts, as I read them. Neither of them used their money from the sale of the home to support their family until about April 2013, when they received the money.

10. The husband has a serious disease – Stiff-person syndrome, and it is a terminal disease and he is significantly physically impaired. I did not have to read any report in relation to that to form the view of physical impairment as the wife agrees and my observation of him in Court led me to that view as well. He received a TPD payout in relation to that disability, of about $1,102,000 in (omitted) 2015.

11. The husband’s case is that after selling Property A, the parties rented a unit in (omitted). The husband discharged the mortgage of about $769,000 on the Queensland property from his TPD payment and that left him with about $330,000. He now has $458,000 in the bank no doubt being part of the sale proceeds left over from Property A and the remainder of his TPD payment, together with a sum of $100,000 that the wife deposited into the joint account from her mother’s estate and the husband took into his account. He has $193,000 in superannuation

12. The wife has her (business omitted), superannuation of $282,000 and a series of debts.

13. In July 2016, the wife received $238,000 from her mother’s estate. She deposited $100,000 into the joint account, which the husband has taken, as he asserted he had loaned the wife a sum of $127,000 to set up her (business omitted) previously. Loaning money to your spouse is an interesting concept under the Family Law Act 1975.[3]

    [3] Family Law Act 1975.

14. The husband is supported by a disability pension of $184 a fortnight, interest from his TPD investments and he has superannuation of $193,000 which, given his condition, he will be able to access shortly, when he is 60.

15. As I add up the figures, the wife has had the use and benefit of $514,000 from the sale of Property A, $137,000 from her mother’s estate, since 2013. Plus she had a car, which was totally written off in (omitted) 2017 and she received $13,000. That money is gone as well. The wife has had about $663,000 in four years, or spent about $166,000 per annum.

16. The husband has had $1.1 million from his TPD benefit. He paid $769,000 off the mortgage. This has left him with a $331,000 balance from his TPD payment, $514,000 from Property A, plus the $100,000 from the wife’s mother’s estate. He has had access to $945,000 in four years. He still has $458,000 in the bank. Thus he has spent $487,000 in the same 4 year period that the wife has spent $663,000. This is around $120,000 per annum.

17. The parties have spent $1 million between them in 4 years. The husband about $120,000 per annum, the wife about $166,000 per annum. Both have spent an extraordinary amount of money in four years, it would seem to me, on the evidence I have before me.

18. The wife’s business has been floundering. She has had to put money into that business, and it is not because she is not working hard in it. Her business has cost her at this stage and, no doubt, significant sums have gone into that business. The wife has had the day-to-day care and support of their child since separation, and I accept that his dad pays extraordinary school fees for him to attend The (omitted) School, of $30,000 per annum, but it is the mother who provides other needs and, for example, he was invited to (country omitted) as part of his scholastic program – he is a talented (omitted). He went to (country omitted), and his mother accompanied him in 2017, and she spent $20,000. She says she spends about $1500 per month, on her son – an expensive issue, but that is also, no doubt, where much of the money has gone.

19. The wife did not provide her profit and loss or other financials in relation to her tax returns and her business, as they are all in Queensland, in the former matrimonial home. The husband produced them. The wife knows where her documents are, and she could have sought them and if the husband had failed to supply them, perhaps sought an adjournment. However, the wife sought to press ahead with her application which, given the delay in this registry of allocating another hearing date, may have been the best way to proceed in this matter.

20. The only assets in existence now are the parties’ superannuation, the wife’s $282,577, which she cannot access for some time, because she is working; and the husband’s of $193,564, which he may be able to access in a few years; the home in Queensland, which the parties agree is worth between $900,000 to 1 million, which the husband lives in, to the exclusion of the wife and the moneys in the husband’s bank account, totalling $468,000. Otherwise, there are debts.

21. The reality is the wife is seeking today some seven to 10 per cent of the joint matrimonial pool. Despite Mr Williams’ best submissions; I cannot accept his case that the wife, in a long marriage will not receive seven to ten per cent of the matrimonial pool ultimately.

22. Entering into a business during a marriage and that business failing is an important factor for the husband. The Court does not punish people for that. There may be arguments of wastage and the like, but they are for a final hearing.

23. Given what the wife seeks to do is purchase a car from her sister, which she has the use of presently and pay off credit card debt in the amount of $52,000, to increase her income to support the child and that that I find the wife will receive no less than $52,000 from the net pool which includes superannuation, I form the view the wife has made out her case, on the principles of Strahan & Strahan[4], and therefore I find that the husband is to pay the wife the sum of $52,000 within 14 days of today’s date.

    [4] Above, note 2.

24. The wife is to discharge her credit card debts, in the amount of $42,000, and provide proof of same to the husband’s solicitor that she has done so. The remaining $10,000 she will use to purchase a car, or as she may otherwise determine, and the Court will take note of the $52,000 received by the wife today in the final property hearing.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  18 January 2018