Montgomery and Montgomery and Anor

[2015] FCCA 3578

FEDERAL CIRCUIT COURT OF AUSTRALIA

MONTGOMERY & MONTGOMERY & ANOR [2015] FCCA 3578

Catchwords:
FAMILY LAW – Property – wife’s application for spousal maintenance granted – variation of orders – wife appointed trustee for sale of parties’ boat.

FAMILY LAW – Practice and Procedure – subpoena to third party to produce will – not relevant – subpoena dismissed.

White and Tulloch & White (1995) 127 FamLR 105
C & M [2000] FamCA 1086
Bailey v Beagle Management Pty Ltd [2001] FCA 60
In the marriage of De Angelis [1999] FamCA 1609
Ross & Ross [2015] FCCA 2057

Applicant: MS MONTGOMERY

First Respondent: MR MONTGOMERY

Second Respondent: MS J MONTGOMERY

File Number: SYC 6359 of 2014

Judgment of: Judge Henderson

Hearing date: 5 November 2015

Date of Last Submission: 5 November 2015

Delivered at: Sydney

Delivered on: 5 November 2015

REPRESENTATION

Counsel for the Applicant: Mr Tocker

Solicitors for the Applicant: Mga Law

Counsel for the Respondent: Mr Loxton

Solicitors for the Respondent: John D Hancock Solicitor

Counsel for the Second Respondent: Mr Longworth

Solicitors for the Second Respondent:   Direct brief

ORDERS

1. The matter is listed for mention on 26 May 2016 at 9:30am for:

   (a)The parties to obtain valuations of the husband’s businesses.

   (b)The parties’ boat to be sold.

   (c)The parties to attend private mediation.

2. The orders made by Sexton J on 18 December 2014 are varied as follows:

   (a)The wife be appointed as sole trustee for sale of the (omitted) Cruiser boat for the best price reasonably attainable.

   (b)Upon sale, the wife to distribute the sale proceeds as follows:

   (i)Pay all associated costs of sale.

   (ii)$75,000 to herself by way of interim property settlement.

   (iii)$75,000 to the husband by way of interim property settlement.

   (iv)Pay the balance into the mortgage over the former matrimonial home.

   (c)The husband to give the wife all information she requests, the keys, location of and any documents relating to the boat sale she requests within 7 days.

   (d)The husband is restrained from accessing the boat without the wife’s written consent which consent will not be unreasonably refused.

   (e)The wife may use any broker she wishes to effect the sale of the boat provided she notifies the husband of same.

   (f)The husband be responsible for all outgoings on the boat with respect to insurance on the boat, mooring costs and other costs associated with the up keep and maintenance of the boat.

   (g)Both parties shall do all acts and things as required to enable to boat to be inspected by prospective purchasers.

   (h)The wife has until 2 December 2016 to sell the boat.

3. The husband to pay to the wife by way of interim spousal maintenance $1,275 each week.

4. The husband’s spousal maintenance to be reduced by the same amount the weekly mortgage repayments are reduced after the proceeds from the boat sale are paid into the parties mortgage.

5. The husband to pay the mortgage arrears to the bank in the sum of $6,466.56 by 9 November 2015. In the event that sum is paid from borrowings from his family and the husband provides proof thereof to the wife that sum is to be repaid from the proceeds of sale of the boat.

6. The husband to forthwith sign the letter of engagement for the single expert valuer.

7. By consent, interim orders are made in accordance with the document marked “Exhibit 1”, dated 5 November 2015, as attached hereto.

8. Both parties costs of today are reserved.

9. The subpoena issued to the husband’s mother Ms J Montgomery is dismissed.

10. The wife to pay to Ms J Montgomery or as she directs her costs in the amount of $1,706 upon settlement or judicial determination of final property proceedings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6359 of 2014

MS MONTGOMERY

Applicant

And

MR MONTGOMERY

First Respondent

And

MS J MONTGOMERY

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the issue of the subpoena addressed to the mother-in-law is the first issue.

2. Any evidence is only admissible at a trial if it is relevant. If it is not relevant, it is not admissible despite the fact it might otherwise be “evidence”. The wife seeks to obtain a copy of her mother-in-law’s will as she says that is a relevant consideration in these proceedings to ultimately the wealth of her husband.

3. Mr Tocker of Counsel acts for the applicant, Mr Loxton of Counsel for the respondent and Mr Longworth of Counsel acts for the mother-in-law, the 2^nd respondent.

4. This issue has been the subject of much case law in the Family Court and in my Court, the Federal Circuit Court and in the Full Court in White and Tulloch & White[1], the decision of C v M[2]  a decision of Moore J; Bailey v Beagle Management Pty Ltd[3]. I have been referred to De Angelis[4].

   [1] (1995) 127 FamLR 105.

   [2] [2000] FamCA 1086.

   [3] [2001] FCA 60.

   [4] [1999] FamCA 1609.

5. The real focus is whether the will of this woman who is in excellent health, who appears in Court today, would be a relevant consideration for me at trial pertaining to the division of the assets between the parties? I find it is not relevant.

6. This is not a case such as was in C & M and a decision of mine in Ross & Ross[5] where the mother’s-in-law had each lost testamentary capacity, were in a nursing home and had made a will providing for their children to inherit their property.

   [5] [2015] FCCA 2057.

7. We have here today a woman who is well, healthy, perfectly capable of changing her will if she so desires. If Mr Tocker attempted to tender a copy of this lady’s will at the trial I would say it was irrelevant.

8. The question for me is this, as her Honour Justice Moore says in C & M:

   De Angelis is confined to a rather narrow band of circumstances. It is not an invitation to intrude and offend by a ghoulish pursuit of the current will of a parent of one party, merely because that parent may be of advanced years or a concession about the value of their property. The question is, as they say in White v Tulloch, each case will depend on its facts. It is important to remember the Court is required in exercising the jurisdiction under section 79 of the Act to accord justice and equity to both parties. The question therefore has to be asked whether in the present case it would be just and equitable to the husband for the Court to have ignored the probability that, in what could be very well a short period of time given the ages of her aunt and mother, the wife could well be the owner of two properties.

9. That was a relevant consideration in White & Tulloch. In C & M it was a relevant consideration for her Honour and as it was for me in Ross & Ross. The mother’s-in law in those cases were in nursing homes and had lost testamentary capacity through dementia or similar. This matter does not fall within those narrow bands of circumstances and I accordingly I dismiss the subpoena addressed to Ms J Montgomery.

10. I have dismissed a subpoena directed to the husband’s mother, Ms J Montgomery, as the documents sought in that were not relevant to this trial. The wife pursued the application and she has been wholly unsuccessful in that application. This is a property matter. I have been asked to order costs against the wife for her failed application against her former mother-in-law at scale which is $1,706. I propose today to exercise my discretion to make that costs order.

11. This Court must act to protect third parties’ rights to litigation when they are not the husband and wife or otherwise involved in the proceedings by directly example seeking or being joined as a party.  Parties must be very careful to ensure that they maintain the dispute as between them and not include persons who are simply not involved other than by virtue of relationships from marriage or birth. In these circumstances it is proper that costs be awarded because Ms Montgomery was a third party only brought here because of the actions of one of the parties to the litigation, which action was unsuccessful.

12. However, the mother-in-law showing some degree of sensitivity says that she does not seek her costs be paid until the end of this litigation and the parties agree or the parties came to an agreement.

13. Now, in relation to the wife’s claim for maintenance I am satisfied the wife is maximising earning capacity and netting some $525 per week. That is clear in the material I have read both her prior financial statement and her updating two affidavits, one in October and one in November.

14. The wife seeks a sum of $1,275 per week from the husband by way of maintenance, from which she will pay the mortgage and rates and levies on the property, which amount to some $725 a week, and the remainder will be used to assist her to support herself, as I accept her needs as set out in her affidavit are approaching, unmet, including the mortgage, some $1,275 per week. That is clear on the evidence.

15. The husband earns an income set out in his financial statement of gross of $3,000 odd per week. The payments he sets out in his financial statement filed in February that he no longer pays are (omitted) Super, which is paid by his company, not him personally, of $292; the mortgage, rates and levies on the former matrimonial home, which amount, on the wife’s evidence, to some $725 a week, and he claimed $675 a week for those; and a payment of $600 a week for the youngest child, who has now attained 18, of $600 per week. That gives him, on his own financial statement, excess of income over expenses approaching $1,800. Clearly, he has a capacity to pay $1,275 sought by the wife on his own material.

16. One issue is at large, and that is that the mortgage is substantially in arrears because there have been no payments made for some considerable period of time, and the wife has negotiated hardship provisions with (omitted) Bank, which is clear in her material. However, they require a payment of $6,466.56 to be paid on or before 9 November 2015.

17. The wife has agreed that when the mortgage is reduced by a payment of the net proceeds of sale of the boat into the mortgage, she will reduce the amount required to be paid by the husband each dollar that the mortgage payment is reduced, so that it is anticipated that the husband’s liability for spousal maintenance will significantly reduce upon that mortgage being reduced from the sale of the boat.

Addendum to Judgment

1. From a reading of the transcript the boat is to be sold by the wife and she has 12 months to sell it. This issue was all but agreed at page 31 line 15 of the transcript in that the husband’s counsel was instructed not to oppose the sale of the boat on 2 conditions which conditions I did not agree with as recorded at page 33 line 45 and page 34 lines 5 to 15 of the transcript.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 12 February 2016