McLaren and Zerafa and Ors

[2018] FamCA 154

FAMILY COURT OF AUSTRALIA

MCLAREN & ZERAFA AND ORS [2018] FamCA 154

FAMILY LAW – SPOUSAL MAINTENANCE – DE FACTO – Where the applicant seeks urgent spousal maintenance pursuant to s 90SG of the Family Law Act 1975 (Cth) – Where the applicant and the parties’ two young children will be without a home upon the sale of the property – Where orders are made for the wife to receive a total of $145,000 by way of spousal maintenance.

Family Law Act 1975 (Cth) s 90SG

APPLICANT: Ms McLaren

1^st RESPONDENT: Mr Zerafa

2^nd RESPONDENT: Mr B Zerafa

3^rd RESPONDENT: Ms C Zerafa

INDEPENDENT CHILDREN’S LAWYER: Blackman Legal Pty Ltd

FILE NUMBER: SYC 7898 of 2016

DATE DELIVERED: 9 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 9 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: M & K Lawyers Group Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr McPherson

SOLICITOR FOR THE 1^ST RESPONDENT: Uther Webster & Evans

Orders

1. That on or before 4.00 pm on 12 February 2018 the respondent pay to the applicant the sum of forty thousand dollars ($40,000).

2. That from the proceeds of sale of the unit property at D Street, Suburb F the sum of one hundred and five thousand dollars ($105,000) be paid to the applicant by way of maintenance pursuant to s 90SG of the Family Law Act 1975 (Cth).

3. That in the event that any arrears of maintenance are owed to the applicant on the date of settlement of the unit property then those arrears are to be satisfied from the proceeds of sale.

4. The order for the payment of the fifty thousand dollars ($50,000) to the applicant from the proceeds of sale of the unit, in addition to any monies which she will receive by way of s 90SG maintenance should stand.

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 McLaren & Zerafa and Ors 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 SYDNEY

FILE NUMBER: SYC 7898 of 2016

Ms McLaren

Applicant

And

Mr Zerafa

Respondent

Mr B Zerafa
2^nd Respondent

Ms C Zerafa
3^rd Respondent

REASONS FOR JUDGMENT

1. Ms McLaren (“the applicant”) and Mr Zerafa (“the respondent”) entered into a de facto relationship in about March of 2010.  They have two children, namely, G born in 2011, presently six years old, and H born in 2013, now four years old.  The relationship has come to an end.  Proceedings in relation to property settlement are on foot in the Family Court, but those proceedings have not yet been resolved. 

2. In 2017 an agreement was reached between the applicant and the respondent to sell the unit premises in which the applicant and the children currently reside.  Orders were made by agreement for the distribution of funds on the settlement of that sale.  The amount which was to be paid to the applicant on settlement was $50,000.  The sale is to settle on 23 February 2018 and the orders which have been made provide that the applicant and the children must vacate the subject premises by 16 February 2018.

3. The order also provide for periodic spousal maintenance. 

4. The application presently before the Court was bought on short notice by the applicant, who seeks orders that will provide her with funds to secure alternate premises for herself and the children.  Her application was served upon the respondent only yesterday and the matter has been brought on with extreme urgency because the applicant’s case is that on the settlement of the sale of the unit property on 23 February 2018 she and the children will have nowhere to live. 

5. The applicant seeks orders in the alternate, either that the respondent secure the lease of premises for the occupation of herself and the children, or alternately, that pursuant to section 90SG of the Family Law Act 1975 (Cth) the respondent pay lump sum maintenance to her which would be sufficient to cover one year’s rent, and she seeks further orders for spousal maintenance. In her affidavit the applicant asserts that she entered into the orders for provision of money by way of interim payment which have already been made on the basis of her belief and understanding that the respondent would ensure that she and the children had somewhere to live.

6. The respondent, who has not been given the opportunity to file material in response to this application because of the urgency of the circumstances, denies that that was a reasonable belief on the part of the applicant, if in fact it was her belief.  However, the fact of the matter is that as at 23 February 2018 the applicant and two small children will have no accommodation.  On behalf of the respondent it is submitted, that it would be sufficient if he were to pay her $40,000 on Monday 12 February 2018, and that she should receive a further $30,000 on settlement. 

7. The parties have lived throughout their relationship in the eastern suburbs, and the children are currently settled in that area.  More importantly the older child is at school in the eastern suburbs.  The wife has made inquiries about the cost of accommodation which would be suitable for her and the children and has estimated that she would need to pay rent of $2,800 per week in order to obtain accommodation.  It is not difficult to accept that no owner of premises which are being offered for rent would be prepared to rent premises at a rental approaching $3,000 per week to a person who is the financial position of the applicant and who, clearly, has no funds from which she could pay the rent.  In order to secure rental premises for herself and the children, the applicant will be required to offer some substantial payment of rent in advance. 

8. In those circumstances it is my view that the appropriate orders which are to be made should be orders by way of s 90SG maintenance that will require payment to the wife, from the proceeds of sale of the unit property, of 12 months’ rent in advance. I propose to make those orders by way of s 90SG maintenance.

9. Orders have already been made in relation to spousal maintenance.  I do not propose at this stage to vary those orders.  But I intend to make an order that will provide for a payment to the wife of $40,000 as proposed by the husband on 12 February 2018 and the payment of a balance of $105,000 from the proceeds of sale of the unit.  In addition to that I propose to make an order that any arrears of spousal maintenance are to be paid from the proceeds of sale of the unit and to continue the order for spousal maintenance which is on foot. 

10. Orders have already been made which will provide for the wife to receive $50,000 from the proceeds of sale. She has entered into agreements for the payment of legal fees in approximately that amount, which will satisfy amounts outstanding to previous legal practitioners. I accept that in the event that any monies are paid to the wife pursuant to orders I might make, her solicitors would be obliged in compliance with those agreements which have been entered into in writing to disburse approximately $50,000 to her previous legal representatives. In those circumstances the order for the payment of $50,000 to the wife from the proceeds of sale of the unit, in addition to any monies which she will receive by way of s 90SG maintenance, should stand.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 9 February 2018.

Associate: 

Date:  15.3.2018