McGuigan and Winters

[2016] FamCA 121

FAMILY COURT OF AUSTRALIA

MCGUIGAN & WINTERS [2016] FamCA 121

FAMILY LAW – PROCEDURE – Interim property settlement.

APPLICANT: Mr McGuigan

RESPONDENT: Ms Winters

FILE NUMBER: SYC 2213 of 2013

DATE DELIVERED: 2 March 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 24 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: Dettman Longworth

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: Doolan Callaghan Family Lawyers

Orders

IT IS ORDERED

1. That the application of the husband seeking interim property settlement in the sum of $200,000 is dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym McGuigan & Winters 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

FILE NUMBER:

Mr McGuigan

Applicant

And

Ms Winters

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for interim property settlement pursuant to the provisions of section 79 of the Family Law Act 1975 (Cth) (“the Act”) in proceedings between Mr McGuigan (“the husband”) and Ms Winters (“the wife”). The husband seeks an interim payment of $200,000 to be applied by him to legal fees.

2. There are two significant assets of the marriage. The first is an amount of money on term deposit which is agreed at the present time to be $884,304. The second significant asset is shares held by the husband in B Pty Ltd (“B”) which the wife contends are worth $1,420,495 and the husband contends, his being a minority share-holding, to be worth $389,453.

3. The wife opposes the husband’s application for interim property settlement, contending that in the event that monies were paid to the husband out of the term deposit then there would be insufficient funds to pay her the amount she seeks in the substantive proceedings.

4. In the substantive proceedings the husband contends that the wife should receive an amount from the term deposit which would have the effect of paying her approximately thirty percent of the net assets of the parties. The wife contends that she should receive sixty-five percent of the net assets of the parties.

5. The parties in these proceedings commenced their cohabitation either in 1993 (according to the wife) or in 2000 (according to the husband). They married in 2003. There are two children of the marriage, C born in 2004 and D born in 2008. The children are presently in the care of the wife but parenting proceedings are listed for hearing commencing on 12 April 2016 and it is the husband’s application that the children live with him.

6. The parties are also in dispute about the date upon which they separated, the wife contending that separation occurred in June 2010 and the husband that separation occurred in July 2008.

7. The wife contends that the husband has failed to make full and proper disclosure in relation to monies had and received by him. The husband disputes that assertion.

8. For the purpose of the application presently before the Court, counsel for the wife adopted the value of the disputed shares asserted by the husband. On that basis counsel for the wife submitted that the net asset pool of the parties (excluding monies already paid for legal fees about which more will be said later) is approximately $1.5 million. Senior counsel for the husband asserts that the net asset pool on the information available at the present time is approximately the same figure.

9. If, ultimately, the husband’s position is adopted by the Court there will be sufficient monies in the term deposit to satisfy the wife’s entitlement.

10. However, in the event that the wife’s case is accepted and the Court ultimately finds she is entitled to 65 percent of the net asset pool then the amount which would be required to be paid to her is 65 percent of $1.5 million or $975,000 less those assets already in her possession which total $81,388. The amount which would be required to satisfy the wife’s entitlement thus exceeds the amount in the term deposit and there is no other fund from which her entitlement could be satisfied.

11. In the event that the Court determines ultimately that the wife is entitled to 65 percent of the net asset pool and the term deposit has been reduced to $684,000 in accordance with the husband’s application before the Court today, then it can readily be seen that there would be insufficient funds to satisfy the wife’s entitlement.

12. In circumstances where the husband tells the Court that those funds are required to be paid to his lawyers and therefore will not be recoverable at the end of the substantive hearing, it can readily be seen that if the husband’s application were granted, the pool would be diminished to an extent where the wife’s asserted entitlement could not be met.

13. Senior counsel for the husband argues that the wife has not established that she is likely to receive 65 percent of the net property of the parties. I accept that is the case. However, neither has the husband established that the wife is likely to receive only 30 percent of the lesser pool for which he contends.

14. The evidence is presently untested and the disputes between the parties are of substantial dimensions.

15. By way of illustration if the Court ultimately were to find that the value of the company is $1,420,000 as the single expert and the wife assert, then the pool of assets is some $2.9 million, and an entitlement of 30 percent of that amount would nevertheless see the wife receive almost the whole of the term deposit.

16. On any view of the asset pool and the matters in dispute between the parties the Court cannot be satisfied that any monies paid to the husband by way of property settlement would not compromise the wife’s ultimate claim and the application of the husband is dismissed.

17. The parties have already paid to their respective solicitors approximately $1 million. The wife deposes that the whole of the amount she has paid has been borrowed and must be repaid. The husband deposes that he has paid his costs from various sources including an inheritance, credit cards and money from B.

18. The husband deposes that he needs a further $200,000 to fund the proceedings to completion. No doubt the wife will need a similar amount. The end result is that the parties will have spent about $1.4million arguing about the distribution of an asset pool which may be worth as little as $1.5million.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 March 2016.

Associate:

Date:  2 March 2016