Marsh and Marsh and Anor - [2013] FamCA 445

FAMILY COURT OF AUSTRALIA

MARSH & MARSH AND ANOR

[2013] FamCA 445

FAMILY LAW – PROPERTY – Interim spouse maintenance – interim costs payment

Family Law Act 1975 (Cth) s 72(1); s 74; s 75(2); s 117

Bevan & Bevan (1995) FLC 92-600
Eastman v Director of Public Prosecutions (ACT) 2003 HCA 28
Mitchell & Mitchell (1995) FLC 92-601

APPLICANT:

Ms Marsh

RESPONDENT:

Mr Marsh

INTERVENER:

The Commissioner for Taxation

FILE NUMBER:

SYC

3464

2009

DATE DELIVERED:

14 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

10 May 2013

17 May 2013 written submissions received by the husband
24 May 2013 written submissions received by the wife in reply

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms O’Connor

SOLICITOR FOR THE APPLICANT:

Uma Mahadeva Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton

SOLICITOR FOR THE RESPONDENT:

Champion Legal

SOLICITOR FOR THE INTERVENER:

ATO Legal Services Branch

Orders

That, pending further order, the husband shall pay the wife spousal maintenance in the sum of $1,132 per week until 15 August 2013 and thereafter $832.00 per week.
That, pending further order, the parties shall do all things as are necessary to cause the balance of the proceeds of sale of the property … LL Street, KK Town after payment of costs identified in Order 5 made 28 March 2013 to be applied as follows:
(a)in payment to the solicitors for the wife in the sum of $250,000 to be used for the wife’s legal fees.
(b)in payment to the solicitors for the husband in the sum of $100,000 to be used for the husband’s legal fees.
(c)in payment of the balance in part payment of the debt of the husband to the Australian Taxation Office pursuant to the Deed made 8 April 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsh & Marsh and Anor 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 3464 of 2009

Ms Marsh

Applicant

And

Mr Marsh

Respondent

REASONS FOR JUDGMENT

In these proceedings Ms Marsh (“the wife”) seeks orders for interim spousal maintenance and interim property orders or interim costs orders.
Mr Marsh (“the husband”) sought orders in relation to the disposition of the proceeds of sale property owned by the parties at LL Street, KK Town.
The orders pressed by the wife in her Amended Application in a Case filed in court at the hearing were:
1.That the husband pay the wife the sum of $3,523 per week by way of spousal maintenance to be paid on a weekly basis.
…
4.That if the child [B] is to travel overseas for the purpose of training or participating in sporting events the husband do pay the wife’s reasonable costs associated with such travel by agreement and, failing agreement, in the sum of $35,000 per week, initially, and to increase from 1 July 2013 and on 1…

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 Marsh and Marsh and Anor

Details

AGLC: Marsh and Marsh and Anor [2013] FamCA 445
Case: [2013] FamCA 445
Decision Date

CaseChat Overview and Summary

In *Marsh & Marsh and Anor* [2013] FamCA 445, the Family Court of Australia considered applications by Ms Marsh (the wife) for interim spousal maintenance and interim costs orders, and by Mr Marsh (the husband) for orders regarding the disposition of proceeds from the sale of a jointly owned property. The Commissioner for Taxation (the ATO) was also an intervener in the proceedings, due to the husband's significant indebtedness to the ATO.

The primary legal issues before the Court were whether the wife was entitled to interim spousal maintenance and, if so, in what amount, and how the proceeds of sale of the parties' property at LL Street, KK Town should be distributed, particularly in light of the husband's substantial debt to the ATO and the wife's claims for legal costs. The Court also had to determine whether to consider additional written submissions and an affidavit filed by the wife after the hearing had concluded.

Aldridge J, applying the principles in *Eastman v Director of Public Prosecutions (ACT)*, declined to consider the post-hearing submissions and affidavit, emphasising that arguments must be presented during the hearing itself unless exceptional circumstances arise. Regarding spousal maintenance, the Court found the wife's evidence regarding her expenses to be unsatisfactory due to discrepancies between her affidavit and financial statement. However, proceeding on the figures in the financial statement, which included expenses and income related to a property in CC Town, New Zealand, the Court determined a shortfall of $1,132.84 per week. The Court noted that while the CC Town property was acquired under circumstances where its existence was not disclosed to the husband, its mortgage remained a legitimate expense for the wife, and the property itself would be considered an asset in the overall property settlement. The Court ultimately ordered the husband to pay interim spousal maintenance of $1,132 per week until 15 August 2013, and thereafter $832 per week.

The Court also made orders concerning the distribution of the proceeds from the sale of the KK Town property. Pending further order, the balance of the proceeds, after payment of specified costs, were to be applied as follows: $250,000 to the wife's solicitors for her legal fees, $100,000 to the husband's solicitors for his legal fees, and the remainder in part payment of the husband's debt to the ATO.

Orders