MOLLISON & MOLLISON

[2011] FamCA 420

FAMILY COURT OF AUSTRALIA

MOLLISON & MOLLISON [2011] FamCA 420

FAMILY LAW - PROPERTY – interim orders – where the wife seeks payment of $230,000 by way of interim costs orders or interim property settlement – where the husband opposes an order that he pay the sum to the wife and proposes that he instead transfer assets to the wife – where the wife is unable to meet the ongoing costs of the proceedings – just and equitable – where the husband has control over assets capable of raising such funds – orders that the husband pay the sum of $230,000 by way of interim property settlement to the wife.

FAMILY LAW - PRACTICE AND PROCEDURE – valuation of parties’ property – orders appointing a single expert to carry out valuations of the parties’ property.

Family Law Act 1975 (Cth) s 79

Strahan & Strahan [2009] 241 FLR 1

APPLICANT: Ms Mollison

RESPONDENT: Mr Mollison

FILE NUMBER: ADC 1281 of 2009

DATE DELIVERED: 27 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. Berman, SC

SOLICITOR FOR THE APPLICANT: Kelly & Co

COUNSEL FOR THE RESPONDENT: Mr R. Richards

SOLICITOR FOR THE RESPONDENT: Cardone and Associates

Orders

BY CONSENT IT IS ORDERED THAT

1. The respondent do provide full and frank disclosure of all assets and liabilities in his sole name or of the entities in which he has an interest and his financial circumstances including but not limited to:

(a)financial statements and documents detailing the balance of external borrowings and debts for all entities in which the Respondent has an interest including independent documentary evidence of the value of any current mortgage held over each property owned by the Respondent or an entity in which he has an interest;

(b)evidence of the assets and liabilities of the entities in which the Respondent had an interest as at the date of cohabitation including documentary evidence of the value of any mortgage held over each property owned by the Respondent or an entity in which he had an interest as at the date of cohabitation;

(c)the most recent financial statements/member statement for the Respondent’s self managed superannuation fund, Super Fund 1;

(d)the most recent share portfolio statement in respect of the investments held by Super Fund 1;

(e)Independent documentary evidence of the cost of construction, the current liabilities of the sales or sale offers made in respect of the following properties:

(i)the development located at L Street, Adelaide Suburb 1 in the State of South Australia;

(ii)the development located at F Street, Adelaide Suburb 2 in the State of South Australia;  and

(iii)the Retirement Village located at N Street, Town 1 in the State of South Australia;

(f)documentation in relation to the husband’s interest in the land in Island 1, Greece including the purchase of land, the value of the land at the date of purchase, date of cohabitation and currently;  and

(g)the 2010 financial statements for all entities in which the husband holds an interest.

IT IS FURTHER ORDERED THAT

1. The single expert be appointed to value the following properties UPON NOTING that there is a tentative agreement that J Real Estate be single expert:

(a)Property A, E Street, Adelaide Suburb 3 in the State of South Australia;

(b)Property B, E Street, Adelaide Suburb 3 in the State of South Australia;

(c)F Street, Adelaide Suburb 2 in the State of South Australia;

(d)H Street, Town 2 in the State of South Australia;

(e)N Street, Town 1 in the State of South Australia;  and

(f)L Street, Adelaide Suburb 1 in the State of South Australia.

1. The husband to file and serve an affidavit by 4.00 pm on Friday 29 July 2011 which sets out the husband’s evidence in relation to the value of each of the properties being the properties set out in paragraph 6 of the Application in a Case filed by the wife on 30 March 2011 to be brought into account including full particulars and annexed documents in relation to:

   (a)      the acquisition of the properties;
   (b)      the development of the properties;
   (c)      the costs involved in relation to the development of the properties;
   (d)      the sale price for the properties;

   (e)the disposal of the sale proceeds of each of the properties concerned.

1. Within eight [8] weeks from today the husband pay or cause to be paid to the wife the sum of TWO HUNDRED AND THIRTY THOUSAND DOLLARS [$230,000.00] such sum to be paid to the wife’s solicitor’s trust account being a payment by way of interim property settlement.

1. The parties costs of and incidental to this application are reserved to be considered as part of the determination of the costs of the final hearing of financial matters.

1. The matter is adjourned to Thursday 1 September 2011 at 9.15 am before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment under the pseudonym Mollison & Mollison is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 1281 of 2009

Ms Mollison

Applicant

And

Mr Mollison

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The first issue before the Court is the request of the husband to adjourn the application so far as it relates to paragraphs 1, 2 and 3 of the Application in a Case filed on 13 March 2011.  The basis of the adjournment is the need, as the husband puts it, to respond to material filed by the wife in the affidavit received by the Court this morning being an affidavit of the wife sworn on 26 May 2011. 

2. The affidavit upon which the wife initially relies in this application was an affidavit filed on 30 March 2011 to which the husband has responded in his affidavit filed on 19 May 2011.  The affidavit of the wife received this morning is in response to that affidavit referring in detail to material in the husband’s affidavit and annexing to it certain documents, one of which was referred to by counsel for the wife being “DM6”, a summary of funds available that the wife alleges are funds available to the husband.  The other material in the affidavit which is relied upon is the “DM5” Super Fund documents indicating, in particular, that as at the date of the documents, 30 June 2010, one of the assets of Super Fund 1 was cash at bank in a Saver Account in excess of $1.24 million.

3. The adjournment is opposed by the wife on the basis that it is simply a response to the affidavit of the wife putting her version of those matters.  I accept that, save and except that “DM6” purports to be a summary of funds available to the husband and is clearly a reference to funds in various entities which would indicate that it is not necessarily funds currently available to the husband, either because they were not capable of being drawn by the husband at that date or that the circumstances have substantially changed since that material was provided in relation to figures as at the end of March.

4. The application that is before me is a significant one, namely, the application of the wife seeking payment of $230,000 by way of interim costs orders or interim property distribution. 

5. The husband’s response to that is that he is not opposing a transfer of assets to the wife but is opposing an order that he pay the sum to the wife.  In response, he proposes that an asset, being real estate at D Street, Adelaide Suburb 4 valued at $455,000, be transferred to the wife.  The wife does not accept that as an order to be made in response to her application for the moneys which she seeks. 

6. The issues to be determined on an interim basis are usually determined on the material on the documents provided by the parties.

7. At this stage it is not necessary to place any reliance of significance upon the affidavit of the wife filed this morning.  The matter is appropriately dealt with on the affidavit material provided by the parties prior to the filing of the wife’s document this morning, namely, the main affidavit of the wife filed on 30 March 2011 and the husband’s response.  I do that on the basis that this is an interim order and the Court is not able to determine with any finality what the exact position is in relation to the parties’ circumstances.  In particular, an order should be made relying upon the uncontested evidence rather than attempting to determine on an interim basis significantly contested material.

8. The uncontested evidence is that the husband has under his control assets of at least $10 million and that the wife does not have significant or substantial funds to the extent that she is unable, on the face of it, to meet the costs of the ongoing proceedings which have been and look likely to be substantial. 

9. The husband maintains that he is not in a position to raise the necessary funds due to financial circumstances and difficulties.  Nonetheless, the Court is left with a situation where the net assets of the husband and the businesses which are involved producing income in accordance with the material which is already on file suggests that with sufficient effort being made, the husband should be in a position to obtain the necessary funds for the payment of a reasonable sum to the wife by way of partial property settlement in order to provide the wife with sufficient funds to meet, in particular, the needs of the wife to prepare for the conclusion of the property settlement proceedings.

10. A further delay and further costs in relation to that by way of adjourning the matter would be inappropriate in these circumstances.  I, therefore, propose to make the orders sought today rather than further adjourn the proceedings. 

11. In relation to the other orders sought, the counsel have indicated that there is general agreement that a single expert be appointed to value the properties referred to in paragraph 5 of the Application in a Case and that it is to be noted that tentative agreement has been reached as to J Real Estate carrying out those valuations.  However, the parties cannot consent to an order that that be the case at this stage, so that is simply noted.

12. The order is that the single expert be appointed to value those properties with simply a notation that there is a tentative agreement as to the appointment of J Real Estate.

13. I have already made an order in terms of paragraph 4 of the application. 

14. In relation to paragraph 6, this is a question of a single expert being appointed to value a large number of properties as at the commencement of cohabitation in 1997.  Some of the properties mentioned in paragraph 6 are still retained by the husband or his entities.  There is, on the face of it, no contest as to the same being the subject of valuation currently and at the date of cohabitation.  However there is a dispute as to the benefit to the parties of carrying out an historic expert valuation of the remainder of the properties, bearing in mind the cost of the same and the difficulties which might be associated with such a valuation of properties no longer owned by the husband or his connected entities.

15. I consider that in accordance with the general provisions of the Family Law Act 1975 (Cth) (“the Act”) and Rules, that this matter be resolved at a cost that is reasonable in all of the circumstances.

16. It is apparent that the husband has available to him documentation which would greatly assist in resolving the question of the value of the properties or the significance of the properties in the overall question of property settlement to the extent that it is the contribution of these assets that will be significant in making a final determination.

17. Counsel has indicated that the information is available which would allow the husband to provide, on oath supported by annexures of all relevant documents, particulars of the cost of the acquisition of the properties, the cost of any development of the properties and the exact particulars of the sale and disposal of the proceeds of the properties. If that information is provided then there is a possibility that both the Court and the wife will have sufficient information to allow the Court to make the necessary findings in relation to the requirements of section 79 of the Family Law Act without going to the cost of the difficult historical valuation proposed.

18. I am, therefore, proposing to adjourn further consideration of paragraph 6 of the Application in a Case to allow the husband to file such an affidavit, annexed to which are the particular materials supporting the calculations in relation to those properties.  The affidavit required to be filed and served by the husband is an affidavit which sets out the husband’s evidence in relation to the value of each of those properties to be brought into account including full particulars and annexed documents in relation to the acquisition of the properties, the development of the properties, and costs incurred in relation to the development of the properties, the sale price for the properties and information about the disposal of the sale proceeds of each of the properties;  such affidavit to be filed and served by Friday, 15 July 2011.

19. The main issues in relation to the appropriateness of making such an interim order, being those discussed in the case of Strahan & Strahan [2009] 241 FLR 1 (and relying upon the material contained particularly in the Full Court decision setting out the basis upon which that order should be made) are met in this case to the extent that the significant uncontested material before the Court is that the husband has net assets of approximately $10 million under his control.

20. The wife does not have the ability from the assets under her control to meet the ongoing reasonable costs of the litigation.  That concession appears to be made clearly by the husband agreeing to make an asset available to the wife. 

21. The question, however, remains whether the Court should make an order that the husband provide the funds or agree to his proposal that the part property settlement take place by the transfer of a property at Adelaide Suburb 4 (which is currently the subject of a tenancy agreement).

22. I am not satisfied on the basis of the uncontested evidence before me that such an order for the transfer of the real estate would be appropriate in these circumstances. Bearing in mind the material before the Court, it appears to be just and equitable in these circumstances, and taking into account the factors in section 79 and the other factors referred to in Strahan & Strahan (Supra), that the husband have an opportunity to raise the sum of $230,000 to pay to the wife by way of interim property settlement, being a sum much less than the value of the Adelaide Suburb 4 property.

23. I am also hopeful that upon receipt of the funds there may be some further discussions which might lead to a resolution of the overall issues in relation to contributions.  If those issues are resolved and the question of updated valuations are resolved, then by that date in early September it is to be hoped that an overall resolution of the matter might also be possible, with the parties to give serious consideration to their legal representative’s advice about the benefit of resolving the matter rather than having it come to final determination by this Court.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 27 May 2011.

Associate: 

Date: