Matthews and Matthews (No 2)
[2014] FamCAFC 129
FAMILY COURT OF AUSTRALIA
| MATTHEWS & MATTHEWS (NO. 2) | [2014] FamCAFC 129 |
| FAMILY LAW – APPEAL – INTERIM PROPERTY ORDERS – Where the trial judge made an order providing for a lump sum payment to the wife – Where appellant complained that the terms of the order did not disclose the source of power being relied on by the trial judge to make that order, i.e. whether it was an order for costs, interim property settlement or child maintenance – Where the appellant also appealed on the basis that the trial judge did not provide any published reasons for the orders – Where the respondent conceded that the appeal should be allowed – Appeal allowed – Where the Full Court re-exercised the discretion and made orders for interim property settlement pursuant to ss 79 and 80(1)(h) of the Family Law Act 1975 (Cth) – Costs certificates granted. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Strahan & Strahan (Interim property orders) (2011) FLC 93-466 |
| APPELLANT: | Mr Matthews |
| RESPONDENT: | Ms Matthews |
| FILE NUMBER: | NCC | 962 | of | 2008 |
| APPEAL NUMBER: | EA | 33 | of | 2014 |
| DATE DELIVERED: | 19 June 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ryan and Watts JJ |
| HEARING DATE: | 19 June 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT DATE OF ORDERS: | 24 February 2014 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Levick |
| SOLICITOR FOR THE APPELLANT: | Boyd Olsen Lawyers |
| LAWYER FOR THE RESPONDENT: | Mr Vassili |
| SOLICITOR FOR THE RESPONDENT: | Michael Vassili Barristers & Solicitors |
Orders
Leave to appeal the order of Cleary J made on 24 February 2014 be granted.
The appeal be allowed by consent.
Orders 2 to 4 of the orders made by Cleary J on 24 February 2014 be set aside.
Notwithstanding any prior order restraining the disposition of assets, the respondent wife is to receive, by way of interim property settlement, the net proceeds of sale (after costs of sale) of the following items which, save for two, are set out in Annexure C of the respondent’s affidavit filed on
3 September 2012:
(a) D65-a6 25 tonne bulldozer (Item 3);
(b) Hino tipper truck 7 tonne with 3 tonn hi-ab crane (Item 6);
(c) 2 x 2000 ltr diesel stand mounted tanks (Item 35);
(d) 1 x 2000 ltr unleaded tank (Item 36);
(e) Land cruiser (Item 57);
(f) AI equipment (Item 87); and
(g) Embryos imported and semen imported (Item 88);
As well as:
(h) Yamaha jet ski; and
(i) Forger harvester.
To give effect to Order 4:
(a)The respondent is appointed trustee for sale of the items referred to in Order 4.
(b)The appellant shall forthwith upon request deliver the items to a person and/or place as directed by the wife in writing at his expense.
(c)In the event that the appellant fails to comply with the respondent’s directions, the respondent arrange for collection of the items at the appellant’s expense.
There be no order as to costs.
The Court grants to the appellant husband a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Matthews has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 33 of 2014
File Number: NCC 962 of 2008
| Mr Matthews |
Appellant
And
| Ms Matthews |
Respondent
Ex Tempore
REASONS FOR JUDGMENT
Bryant CJ
This matter concerns an appeal brought by the appellant husband against orders made by Cleary J on 24 February 2014 and contains an application for leave to appeal.
Her Honour’s orders dealt with an application by the wife for orders for interim property settlement, pending the hearing of an application for property settlement, which at present is listed before her Honour in Newcastle in approximately three weeks time. The orders the subject of the appeal provided, in particular, Order 2:
That within 21 days of the date hereof the husband shall pay to the wife the sum of $100,000 such sum to be applied by the wife to:
(a)her legal fees associated with these proceedings and the children’s proceedings in this Court; and
(b)living expenses that she deems appropriate in the bests interests of the children.
A further order provided that the husband was at liberty to identify the assets to be sold by both parties in order to raise the funds and to cause them to be sold by auction or other means acceptable to the parties. Any funds that were raised over the sum of $100,000 were to be applied to the costs of valuation of assets and legal costs of the husband.
The notice of appeal identified a number of grounds, and in my view, two in particular have significance. The first is that there were no published reasons for her Honour’s decision. The second was a failure to identify adequately the head of power under which the interim order was made, especially having regard to the terms and conditions her Honour placed on the use of funds, which I have described. See, in particular, Strahan & Strahan (Interim property orders) (2011) FLC 93-466.
Whilst other grounds may ultimately prove to have been successful, were the matter fully argued, a sensible concession by the respondent that the appeal should be upheld was made in written submissions and repeated before us. The respondent then sought that this court re-exercise its discretion and effectively make the same order.
As to the question of re-exercise by this court or alternatively whether the matter might have been remitted to her Honour for hearing, in my view it is appropriate that this court re-exercise the discretion for at least three reasons. Firstly, the present proximity of the trial being only three weeks away, although there may be some uncertainty as to whether it will be able to proceed. Secondly, the avoidance of costs and expense to the parties and, thirdly, importantly, during the hearing before her Honour and again today before us, there was a concession that items could be sold prior to the hearing. In particular, before her Honour there was a concession that two items, a truck and Land Cruiser, could be sold prior to the hearing and that proposal was contained in a minute of proposed orders, which appears at page 142 of the appeal book.
The parties were offered this morning the opportunity to reach some agreement about what assets might be sold to raise funds and they failed to do so, but narrowed the issue further and reached agreement that an interim settlement in favour of the wife could be made by sale of certain assets, but they were unable to reach agreement as to the terms and conditions of sale. The concessions made both at the hearing before her Honour and before us this morning comfortably allow this court, in my view, to make orders in the re-exercise of the discretion of the trial judge.
The orders which I propose would be made pursuant to ss 79 and 80(1)(h) of the Family Law Act 1975 (Cth) and are orders for interim property settlement. They are based upon the concessions made by the husband before us today, in particular. The only issue which we were left to determine was the manner of sale. The wife contended that it was difficult for her, because of the family circumstances, to sell the assets herself and proposed that the responsibility should rest with the husband. No agreement as to this was reached and, accordingly, in the absence of any agreement, the wife concedes that the sensible and practical approach would be for her to sell the assets as trustee for sale and attend to the practical arrangements that will thereby be necessitated.
I am therefore satisfied that these orders would provide a just and equitable outcome of what is an interim application and an interim order in respect of a matter which I hope will soon be concluded.
Ryan J
I agree with the orders proposed by the Chief Justice and her Honour’s reasons for decision.
Watts J
I agree with the orders proposed by the Chief Justice, except for the orders in respect of costs certificates. I agree the appeal should be allowed, but only on the basis that the appeal was conceded by the respondent wife. Accordingly, I am not able to join in making the orders for costs certificates.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ryan and Watts JJ) delivered on 19 June 2014.
Associate:
Date: 15 July 2014
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