MOREIN & MOREIN

[2016] FamCA 713

FAMILY COURT OF AUSTRALIA

MOREIN & MOREIN [2016] FamCA 713

FAMILY LAW – PROPERTY – INTERIM – Application by the husband to release funds upon the sale of the former matrimonial home to meet liabilities including outstanding school fees – Where the wife opposed the husband’s application on the basis that she made arrangements to compromise the debt in relation to the school fees – Order made for the parties to authorise payment from proceeds of sale of the former matrimonial home for the payment of the outstanding school fees.

Family Law Act 1975 (Cth)

APPLICANT: Mr Morein

RESPONDENT: Ms Morein

FILE NUMBER: SYC 6802 of 2014

DATE DELIVERED: 9 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 9 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Mills Oakley

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITOR FOR THE RESPONDENT: Mark Rahme & Associates

Orders

1. The parties are at liberty to authorise the payment from the controlled monies account holding the proceeds of sale of the former matrimonial home within 14 days after the settlement of the sale or such further time as the parties agree in writing to the school authority for the schools that to date have been attended by the children for past school fees.

1. The Court notes that it is the intention of the Court that the parties would join in negotiating a compromise to the quantum of the past school fees in accordance with the email of Mr B of the C Foundation dated 19 February 2016 to the husband.

1. The Application in a Case filed 25 July 2016 in relation to Order 2 is adjourned for mention only and for hearing if practicable before the trial judge on 30 September 2016.

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 Morein & Morein 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:  SYC6802 of 2014

Mr Morein

Applicant

And

Ms Morein

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to parenting and property settlement.  The matter has been on foot, I think, since 2014.  The husband is 48 years of age and the wife is about 35.  They were married in 2002 and separated in October 2014.  They have three children, S, who is nearly 13 years of age, M, about 10 and a half, and W, who is about eight and a half.  The matter is listed today in relation to interlocutory financial issue.  Pursuant to orders made in contested proceedings, a trustee for sale was appointed for the former matrimonial home.  It was sold on 23 July for $1.3 million.  The sale settles on 6 September.  The ANZ mortgage stands at about $700,000.  It is estimated that the costs of sale, including the trustees charges will amount to about $18,000.  The net proceeds of the sale will be about $580,000.  

2. The husband has brought the application to have about $50,000 paid to the children’s schools and $465,000 to a third party lender.  He says that the lender provided funding for the discharge of a judgment debt in the Supreme Court of Victoria, which was the final result of class litigation in relation to a series of failed investments by the husband. 

3. The wife opposes those orders.  She has spoken to the school authority, and it has indicated that it will compromise the debt in relation to past school fees.  In addition, it will reduce the fees for the children so that they can continue their education at their current schools.  In circumstances where the Court was told in February of 2016 that the parties could not afford those school fees, the Senior Registrar made an order that the children change schools from the start of term two this year.  Perhaps unsurprisingly in the context of these proceedings, effect has not been given to those orders and the husband is seeking the execution of relevant enrolment documents under s 106A, so that he can cause it to happen.

4. Correspondence has now been produced, dated a few days after the hearing before the Senior Registrar, reveals that the school authorities for the two schools that the children are attending now - the boys at one school, the girl at another, are willing to accept an amount less than the fees payable to the schools which the Senior Registrar ordered that the children should attend.  I am assured on behalf of the mother that those arrangements are still on offer.  I am told on behalf of the father that he does not know that.  That is a disgraceful set of circumstances.

5. Apart from anything else, what about the children?  They will be unsure about the schools they are to attend. 

6. I indicated that I will allow the parties to pay out of the fund holding the net proceeds of sale a payment in the sum of a figure compromised with the existing school authority for past school fees. 

7. That does not address the conundrum about future fees.  If the mother is right, there is a wonderful solution to the problem about schooling.  The children will be able to remain at the schools that I am told both parties wanted them to attend.  There will be a lesser charge for that attendance than would have been the charge at the new schools identified as a result of the hearing in February.  That sounds like a perfect solution, but there is not much I can do to influence it.

8. If the proceedings ever come to a final parenting hearing the criteria in s 60CC of the Family Law Act 1975 (Cth) include reference to parents’ past performance in relation to child focused actions. Often in property proceedings, and sadly sometimes in parenting proceedings, parties use interlocutory steps to bring pressure to bear on each other to achieve a certain outcome. They may seek some sort of forensic advantage for the ultimate proceedings. The children are casualties in that exercise.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 9 August 2016.

Associate: 

Date:  26 August 2016