McCloy and McCloy and Anor

[2016] FamCA 1133

FAMILY COURT OF AUSTRALIA

MCCLOY & MCCLOY AND ANOR [2016] FamCA 1133

FAMILY LAW – INTERLOCUTORY – Spouse Maintenance – Where the filed applications and responses have been superseded by events – Where an urgent application for spouse maintenance is raised – Where the husband objects on both the period of limitation having expired and not having adequate time to prepare a response – Decided the court should balance the inconvenience to the husband against the possible outcome to the wife – Where one possible outcome is the wife having to sell her house – Where inconvenience to the husband can be cured by giving the matter a future listing date with parties to file and serve relevant material – Where the future listing date will allow the matter to be properly reviewed – Ordered the husband pay the wife $4,250 per month as spouse maintenance

APPLICANT: Ms McCloy

RESPONDENT: Mr McCloy

INTERVENOR: Ms Bennett

FILE NUMBER: (P)NCC 1050 of 2013

DATE DELIVERED: 21 December 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

EX TEMPORE JUDGMENT OF: Cleary J

HEARING DATE: 21 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE RESPONDENT: Hunter Family Law Centre

SOLICITOR FOR THE INTERVENOR: Mark Robert Bennett as case guardian for Ms Bennett

Orders

1. The wife shall file and serve any Application for spouse maintenance and supporting material by Wednesday 18 January 2017.

2. The husband shall file and serve any Response and supporting material by Monday 6 February 2017.

3. The Application for spouse maintenance is listed in the duty list on Tuesday 7 February 2017, not before 2.15 pm.

4. The husband be and is restrained from withdrawing any funds from the X Bank Line of Credit account number …72 except that payments made by AMEX into the Line of Credit account will be transferred as required by the administrator into the new account established by her.

5. The husband is to pay to the Line of Credit account the sum of $4,250.00 per month, with the first payment to be made on or before 30 December 2016 and 4 weeks thereafter in anticipation of the January payment which will be due at, or close to, the end of that month.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym McCloy & McCloy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P) NCC 1050 of 2013

Ms McCloy

Applicant

And

Mr McCloy

Respondent

And

Ms Bennett

Intervenor

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. Before me today was an Application in a Case filed by the wife, which has the following history. 

Brief History of Relevant Events 

1. On 7 August 2014, Orders were made by consent by Austin J bringing to conclusion the adjustment of interests in property between the parties.

2. Orders were made, amongst other things, for the sale of the parties’ business. The business was to be sold, and provision was made for a varying down of price if necessary, with ultimate closure of the business if it couldn’t be sold.   

3. The parties have been in dispute about the process of selling the business and establishing the proper price for its sale, and that has given rise to an Application in a Case filed by the wife on 25 August 2016, supported by an affidavit and statement of financial circumstances.

4. On 29 September 2016, an order was made that the Application in a Case be listed for 21 November 2016.

5. On 17 November 2016, the husband filed a Response and an affidavit in support of it. 

6. On 21 November 2016, the parties were present at Court, engaged in negotiations all day and there was no resolution of the dispute.  The matter was stood over until 2 pm today for argument as to whether or not the wife should become the trustee for sale of the business.

7. On 12 December 2016, the wife filed an Amended Application in a Case supported by her affidavit filed 12 December 2016 reflecting the reality that events had overtaken the positions of both parties. 

8. The wife in her affidavit refers to the fact that she had become aware that administrators had been appointed on or around 5 December 2016 to take over the running of the business. 

9. Since that event the solicitor for the administrator was present in Court. Quite naturally a new account has been opened for the administration.

CURRENT CIRCUMSTANCES

1. The consequence for today is that none of the applications or responses are relevant, but what was raised was an urgent application for spouse maintenance by the wife. 

2. That application was strenuously opposed by the husband on the basis that there had been no notice of it and there had been no opportunity to adequately prepare a response to it.

3. There was also opposition based on the fact that the period of limitation for making an application for spouse maintenance had passed.  However, in the circumstances outlined above, it is clear that the parties had not anticipated, in particular the wife, any need for a spouse maintenance application to be made.

4. The orders reflected the parties’ expectation, or perhaps hope, that the business would be sold at a certain value, and that has not happened. 

5. There is now an administrator for the business;  a very recent event that leaves the wife and the husband in the situation of having a line of credit remaining to be paid with no volunteer to make that payment.  That particularly impacts on the wife, who lives in the house on which the line of credit is secured. 

6. The financial statement of the wife reflects the fact that she would not be able to pay $4000 a month, which is approximately the monthly requirement to keep the line of credit under its limit.

7. In those circumstances, despite the obvious disadvantage to the husband of having to meet such an application without notice, it is appropriate that the Court deals with the situation of balancing the inconvenience to the husband against the possible outcome to the wife - of there being a forced sale of the house.  Therefore the need to deal with it on an urgent basis outweighs the inconvenience to the husband.

8. To address the inconvenience, a direction has been made for an application in the ordinary way to be filed, which will be included in the duty list on 7 February 2016. 

9. The particular issue is that the orders had contemplated that the business would pay into the X Bank Line of Credit account the monies needed to keep the interest bill paid and to keep the line of credit under its limit.

10. The husband is now receiving from an insurance policy that he has been paying for some time a sum of $3216 per week.  Exhibit 1 is the insurance schedule which reveals that payment. He has received a weekly payment of $1293, which the wife submits may be an ongoing wage.

11. On behalf of the husband, it is said that that was a retrospective payment for recent work and it is not anticipated that he will continue to receive that amount or any amount in future.  That will be a matter for the affidavits in the spouse maintenance application.

12. On behalf of the wife, it is said that she does not have the capacity to make the payments.  The husband does because his insurance payment is better than equivalent of what he drew as wages and what he was capable of paying from the income of the business into the Line of Credit account. 

CONCLUSION

1. It is very difficult at this point to know, given particularly the lack of information about the husband’s actual financial position, but on an emergency basis where the consequences are serious, it does seem appropriate to me to make an order requiring the husband to pay the sum of $4000 per month together with the health insurance benefit payments on behalf of the wife in accordance with the orders until the matter can be properly reviewed in six weeks’ time.

2. It is likely that a total amount of about $8500 will be paid prior to the matter being fully examined.

3. Orders are made accordingly.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 21 December 2016.

Associate: 

Date:  17 January 2017