FAMILY COURT OF AUSTRALIA
| MORONI & MORONI | [2014] FamCA 664 |
| FAMILY LAW – PROPERTY – where an order for interim property settlement is sought by the wife – whether it is appropriate to exercise courts power on an interim basis – where the husband contends the whole of the current assets of the parties are offset by unsecured liabilities to the husband’s father and associated entities – where the husband submits contributions towards the parties assets by his family make it unsafe to make any interim distribution to the wife - where it is found that it is appropriate and otherwise in the interests of justice to make interim property settlement in favour of wife – where the husband sought to sell the matrimonial home to repatriate debts – where the husband has not established that it is proper to make an order for the sale of the matrimonial home at this time. FAMILY LAW – FUTURE INTERIM COSTS – where there is no level playing field between the parties – where the husband is funded by his father and his families’ companies – interim costs order not made – where the wife alternatively seeks a dollar for dollar order - where it is found to be just for a dollar for dollar order to be made. FAMILY LAW – INTERIM CHILD SUPPORT – where the wife seeks a child support departure order for periodic and non-periodic payments of child support - where it is found to be appropriate on an interim basis that non-periodic payments for the children’s school fees and health fund costs be paid out of the parties joint bank accounts – where the court determined that the expenses claimed by the wife are reasonable – where the court determined that the wife does not have any significant earning capacity – where it is found that when the payment of the husband’s debts are prioritised he has sufficient income to make the child support payments to the wife – where the court determined that it is just and equitable to make an order for child support departure. FAMILY LAW – INTERIM SPOUSAL MAINTENANCE – where the wife is unable to adequately support herself – whether the husband has capacity to pay spousal maintenance – where the court did not accept the husband’s assertions about his income and earning capacity – where the court determined the husband has capacity to pay to the wife interim spousal maintenance |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) |
| Bevan and Bevan (1995) FLC 92-600 Biltoff and Biltoff (1995) FLC 93-614 Farnell and Farnell (1996) FLC 92-681 G & T (2004) FLC 93-176 Harris and Harris (1993) FLC 92-378 Iphostrou & Iphostrou and Ors [2011] Fam CA 20 In the Marriage of J U and T Poletti (1990) 15 FamLR 794 Oates and Crest (2008) FLC 93-365 Stanford and Stanford (2012) 247 CLR 108 Strahan and Strahan (2011) FLC 93-466 Redman and Redman (1987) FLC 91-805 Williamson and Williamson |
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- AGLC
- Moroni & Moroni [2014] FamCA 664
- Case
- [2014] FamCA 664
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it was appropriate to exercise its power to make interim property settlement orders, considering the husband's claims regarding family contributions and his desire to sell the matrimonial home. Additionally, the court had to consider the wife's applications for interim costs, child support departure orders, and interim spousal maintenance, particularly in light of the alleged disparity in the parties' financial resources and the husband's funding from his family.
Watts J found it appropriate and in the interests of justice to make an interim property settlement order in favour of the wife, releasing $100,000 from a joint term deposit. The court did not accept the husband's assertions about his income and earning capacity, determining he had the capacity to pay interim spousal maintenance. Regarding child support, the court found it appropriate to order non-periodic payments for school fees and health costs from joint accounts, deeming the wife's claimed expenses reasonable and noting the husband's sufficient income to make child support payments after prioritising his debts. The court also made a "dollar for dollar" costs order in favour of the wife, acknowledging the unequal playing field due to the husband's family funding. The husband's application for the sale of the matrimonial home was not granted at that time.
Orders
Orders of the court
1.
Within 28 days of the day of these orders by way of partial property settlement order, the parties do all things and sign all necessary documents to enable the release of the sum of $100,000 to the wife from the parties’ joint Commonwealth Bank Term Deposit account number … for payment upon the direction of the wife.
2.
Within seven (7) days after any future payment by or on behalf of the husband of any money in payment of accounts rendered by his solicitors including in relation to expenses associated with the preparation of his case, the husband pay or cause to be paid the same sum of money to the solicitors for the wife.
3.
Within 24 hours after the payment by or on behalf of the husband of any money referred to in paragraph 2 of these orders, the husband cause to be given to the wife’s solicitors, a memorandum stating the amount or amounts so paid to the solicitors.
4.
All money paid to the solicitors for the husband including on his behalf arising out of paragraph 2 of these orders shall be held in trust by the solicitors for the husband and not applied in payment until such time as the same amount has been paid by or on behalf of the husband to the solicitors for the wife.
5.
In the event that the payment referred to in paragraph 2 is not made within seven (7) days thereafter, the husband is to direct his solicitors to pay 50 per cent of whatever is received (as referred to in order 4) and held by them in trust, to the solicitors for the wife.
6.
The amounts paid pursuant to these orders to the solicitors for the wife are to be applied by them in payment of the costs and disbursements incurred by the wife in the conduct of these proceedings.
7.
The question of how payments to the wife under orders 1, 3 or 5 are to be treated at the final hearing shall be matters for determination by the trial judge.
8.
Pursuant to Rule 15.2 Family Law Rules 2004 (“Family Law Rules”), Ms I, J Accounting be appointed as the single joint expert for the purposes of valuing the husband’s interest in:
8.1. Moroni Investments
8.2. Moroni Pty Ltd
8.3. M Pty Ltd
8.4. B Trust
8.5. C Trust
8.6. The D Trust
8.7. The E Trust
8.8. The F Trust; and
8.9. The husband’s member balance in G Pty Ltd as trustee for the H Retirement Fund.
9.
Pursuant to Rule 15.2 Family Law Rules, K Valuers be appointed as the single joint expert for the purposes of valuing the properties situate at and known as:
9.1. L Street, N Valley
9.2. 1 O Street, Suburb O
9.3. 2 O Street, Suburb O; and
9.4. P Street and Q Street, Suburb R.
10.
The wife’s solicitors shall prepare the proposed initial joint instructions letter to the single expert witnesses and submit those to the husband’s solicitor (which shall not be any earlier than one calendar month after the date of these orders).
11.
Within 14 days of the date of the correspondence providing the proposed instructions letter to the husband’s solicitor, the husband’s solicitor shall advise the wife’s solicitor of any requested additions and amendments to be made to those instructing letters.
12.
The instructing letters shall be finalised by the solicitors, signed and sent to the single expert witnesses within a further 14 days of the time referred to in order 11.
13.
The parties shall do all acts and things and sign all consents in the time periods requested of him/her to facilitate the instructing of and the completion of the work of the single expert witnesses.
14.
The parties do all things to arrange for reasonable fees and expenses incurred by the single expert witnesses to be paid from the joint account of the parties with the Commonwealth Bank.
15.
Pending further order, the husband pay to the wife by way of periodic child support for the children, S born … 1996; T born … 1998; U born … 2000 and V born … 2008 (“the children”) the sum of $1,000 per week, being an amount of $250 per week per child, to be paid to the wife on a monthly basis in advance, the first payment to be made within seven (7) days of the date of these orders and thereafter to be made no later than the seventh (7th) day of each calendar month, payments to be made monthly in advance.
16.
Pending further order, the parties do all things and sign all necessary documents to cause the following payments to be made from the joint fund at the Commonwealth Bank:
16.1. 100 percent of each child’s W School fees, levies and education related costs and expenses, including but not limited to any compulsory school fees, tuition fees, levies and other compulsory parent contributions;
16.2. 100 percent of each of the child’s medical, dental, orthodontic and optical costs including but not limited to:
16.2.1. Maintaining the children in private health insurance cover with Australian Unity at no lower than the level of private hospital and out of hospital insurance as is currently in place and all “gap” payments.
17.
Pending further order, the husband pay to the wife by way of spousal maintenance, a sum of $400 per week, the first payment within seven (7) days.
18.
All other interim applications are dismissed.
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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