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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 3578
Decision Date: 5 November 2015

CaseChat Overview and Summary

In the matter of *Montgomery and Montgomery and Anor*, Judge Henderson considered applications concerning spousal maintenance and property settlement between the parties. The wife sought and was granted interim spousal maintenance, and the court also made orders for the sale of the parties' boat, appointing the wife as trustee for sale. Additionally, a subpoena issued to the husband's mother was dismissed.

The court was required to determine the terms of the wife's appointment as trustee for the sale of the boat, including the distribution of sale proceeds, and to set the amount of interim spousal maintenance payable by the husband. Further issues included the husband's obligation to provide information and access for the boat sale, and the husband's responsibility for ongoing boat expenses. The court also addressed the husband's obligation to sign for a single expert valuer and the dismissal of a subpoena issued to the husband's mother.

Judge Henderson varied previous orders by appointing the wife as the sole trustee for the sale of the parties' boat, with directions for the distribution of proceeds after sale costs. This included interim property settlement payments to both parties and the balance to be applied to the mortgage on the former matrimonial home. The husband was ordered to provide necessary information and access for the sale and was restrained from accessing the boat without the wife's consent. The husband was also made responsible for all outgoings related to the boat until its sale, which was to be completed by 2 December 2016. Interim spousal maintenance was set at $1,275 per week, with a provision for reduction based on any decrease in mortgage repayments following the boat sale. The husband was also ordered to pay mortgage arrears and to sign for a single expert valuer. The subpoena issued to the husband's mother was dismissed, with the wife ordered to pay her costs.

Orders

Orders of the court

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.

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.

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

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.

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.

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

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

Both parties costs of today are reserved.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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