FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nafus & Valdon [2021] FedCFamC1F 302
File number(s): SYC 7137 of 2020 Judgment of: ALTOBELLI J Date of judgment: 15 December 2021 Catchwords: FAMILY LAW – INTERIM PROPERTY – Spousal maintenance – Interim costs – Injunctions – Imbalance between the financial positions of the parties – Orders made for spousal maintenance – No orders made as to injunctions regarding personal protection or preservation of property. Legislation: Family Law Act 1975 (Cth) ss 68B, 72, 74, 90SM, 114, 117 Cases cited: Blueseas Investments Pty Ltd v Mitchell (1999) FLC 92-856; [1999] FamCA 745
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Hartley & Hartley [2021] FedCFamC1F 178
Mitchell and Mitchell (1995) FLC 92-601; [1995] FamCA 32
Oates & Crest (2008) FLC 93-365; [2008] FamCAFC 29
Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144
Saxena v Saxena (2006) FLC 93-268; [2006] FamCA 588
Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 17 November 2021 Place: Sydney (via videoconference) Counsel for the Applicant: Ms Gillies SC Solicitor for the Applicant: Scarf Family Law Counsel for the Respondent: Mr Cummings SC Solicitor for the Respondent: Pearson Emerson Family Lawyers ORDERS
SYC 7137 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NAFUS
Applicant
AND: MR VALDON
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
15 DECEMBER 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The Applicant have exclusive occupation of the property situate at B Street, Suburb C in the State of New South Wales being the whole of the land contained within Folio Identifier … (“Property B”).
2.The Respondent is restrained from entering the Property B without the prior written consent of the Applicant.
3.The Respondent have exclusive occupation of the property situate at D Street, Suburb E in the State of New South Wales being the whole of the land contained in Folio Identifier … (“Property D”).
4.The Applicant is restrained from entering the Property D without the prior written consent of the Respondent.
5.The Respondent pay to the Applicant way of spouse maintenance the sum of $1,522 per week, with such sum to be paid into the Applicant’s bank account, being Account name: “Ms Nafus” BSB …, Account Number …70 or as she otherwise directs in writing, with the first payment to be made within two business days of the making of these orders.
6.The Respondent pay as and when it falls due the cost of repairing the retaining wall proximate to the Property B (pro-rated as between the Property B and the neighbours).
7.The Applicant have exclusive use of the Motor Vehicle 1 with NSW Registration ….
8.Within 14 business days of the date of these orders, the Respondent pay or cause to be paid to the Applicant’s solicitor’s trust account the sum of $250,000.00 on account of the Applicant’s legal fees and disbursements incurred or to…
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- AGLC
- Nafus & Valdon [2021] FedCFamC1F 302
- Case
- [2021] FedCFamC1F 302
- Decision Date
CaseChat Overview and Summary
The case of Nafus & Valdon concerns an interlocutory application brought by the Applicant, Ms Nafus, against the Respondent, Mr Valdon, who were in a de facto relationship from 2005 to 2020. The substantive proceedings between the parties revolve around the alteration of their property interests. In the present application, the Applicant seeks an order for spouse maintenance, exclusive occupation of a property she currently resides in, interim costs, and a series of injunctions. The Respondent opposes the orders sought, but has made several concessions, including not contesting the Applicant's exclusive occupation of the property and acknowledging his capacity to make the payments sought by the Applicant.
The legal issues before the Court were whether the Applicant satisfied the gateway requirement for spousal maintenance under s 72 of the Family Law Act 1975 (Cth) and whether an order for interim costs was appropriate. The Court considered the evidence before it, including the affidavits and financial statements of both parties, and formed an impression based on the probative evidence. The Court noted that definitive findings could not be made at this stage, as the evidence had not been tested and each party made allegations against the other. The Court also noted that the orders it made were not irreversible, as payments could be taken into account as part of a final alteration of property interests.
After considering the evidence and applicable law, the Court made orders for spousal maintenance and occupation of the property in which the Applicant currently resides. The Court dismissed all other interim applications brought by the Applicant. The Court also noted that the matter contained a large property pool and complex valuation issues, and recommended that the matter be included in the Major Complex Financial Proceedings list. The prospect of further interim applications could not be ruled out.
The legal issues before the Court were whether the Applicant satisfied the gateway requirement for spousal maintenance under s 72 of the Family Law Act 1975 (Cth) and whether an order for interim costs was appropriate. The Court considered the evidence before it, including the affidavits and financial statements of both parties, and formed an impression based on the probative evidence. The Court noted that definitive findings could not be made at this stage, as the evidence had not been tested and each party made allegations against the other. The Court also noted that the orders it made were not irreversible, as payments could be taken into account as part of a final alteration of property interests.
After considering the evidence and applicable law, the Court made orders for spousal maintenance and occupation of the property in which the Applicant currently resides. The Court dismissed all other interim applications brought by the Applicant. The Court also noted that the matter contained a large property pool and complex valuation issues, and recommended that the matter be included in the Major Complex Financial Proceedings list. The prospect of further interim applications could not be ruled out.
Orders
Orders of the court
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Background
Background to the litigation
These reasons for judgment explain the orders made in an interlocutory application between the parties in this case.BACKGROUND The applicant de facto wife, Ms Nafus (“the Applicant”) is 48 years old and is currently unemployed. The respondent de facto husband, Mr Valdon (“the Respondent”) is 56 years old and describes himself as a professional. The parties were in a de facto relationship between October 2005 and June or July 2020. There were no children born to their de facto relationship. The substantive proceedings between the parties revolve around alteration of their property interests. The present application is brought by the Applicant. The precise order that she seeks is reproduced in Schedule A to these reasons. In short, however, she seeks an order for spouse maintenance and occupation of a property in which she currently resides, an order for interim costs, and a series of injunctions. The Respondent opposes the orders sought. A number of concessions were quite properly made by senior counsel for the Respondent. The Respondent did not contest the order for the Applicant to have exclusive occupation of the property that she currently occupied. He did not cavil with any order that prevented him from entering this property without the Applicant’s written consent. He neither sought, nor opposed, Order 5 which gave him exclusive occupancy of the property that he lives in. The Respondent acknowledged that he had the capacity to make any of the payments sought by the Applicant. Indeed, his Financial Statement filed 9 November 2021 discloses a surplus of income over expenses of about $10,000 weekly. The Respondent also acknowledged that the Applicant could retain the Motor Vehicle 1 driven by the Applicant, but owned by him. On his behalf, the concession was made that his net assets at cohabitation with the Applicant was estimated to be $1,000,000. The current estimated value of the real estate portfolio is estimated to be $20 million. Moreover, the Respondent’s own evidence estimates the value of his shareholdings to be more than $178 million before tax. The Respondent’s own proposal is that the Applicant retains the property that she currently occupies, and which has a current market value of $4.5 million. It is important to acknowledge that interim orders are sought. The evidence before the Court could not be tested. Each party makes allegations against the other about matters pertinent to the issues before the Court. No definitive findings can be made. The Court must form an impression based on the probative evidence before it, most of which is in the affidavits of the parties, and the documentary evidence they advance in their case. At a final hearing it is possible that findings will be made contrary to the impressions formed in the present context. Having regard to the size of the pool of assets, including assets already held by the Applicant, it is this Court’s view that none of the orders it makes are irreversible in the sense that payments cannot be taken into account as part of a final alteration of property interests.THE EVIDENCE BEFORE THE COURT
Evidence
Evidence Before The Court
It is important to acknowledge that interim orders are sought. The evidence before the Court could not be tested. Each party makes allegations against the other about matters pertinent to the issues before the Court. No definitive findings can be made. The Court must form an impression based on the probative evidence before it, most of which is in the affidavits of the parties, and the documentary evidence they advance in their case. At a final hearing it is possible that findings will be made contrary to the impressions formed in the present context. Having regard to the size of the pool of assets, including assets already held by the Applicant, it is this Court’s view that none of the orders it makes are irreversible in the sense that payments cannot be taken into account as part of a final alteration of property interests.THE EVIDENCE BEFORE THE COURT The Applicant relied on the following documents in support of her case:(a)Initiating Application filed 9 October 2020;(b)Her Affidavit filed 9 October 2020, and corresponding exhibits;(c)Amended Initiating Application filed 13 August 2021;(d)Her consolidated Affidavit filed 17 September 2021, and corresponding exhibits;(e)Application in a Proceeding filed 5 October 2021;(f)Her Affidavit filed 5 October 2021;(g)Her Updating Financial Statement filed 12 November 2021;(h)Her Outline of Case Document filed 12 November 2021; and(i)Her Minute of Order for Interim Hearing. The Respondent relied on the following documents in support of his case:(a)Response to Initiating Application filed 16 November 2020;(b)Response to an Application in a Proceeding filed 9 November 2021;(c)His Affidavit filed 9 November 2021;(d)His Financial Statement filed 9 November 2021; and(e)His Outline of Case Document filed 12 November 2021.THE APPLICABLE LAWSpousal maintenance Spousal maintenance is governed by s 72 of the Family Law Act 1975 (Cth) (“the Act”). In Hall v Hall (2016) 257 CLR 490 at [3], the High Court described the “gateway” requirement for the consideration of a spousal maintenance application pursuant to s 74 of the Act. The gateway requirement is set out in s 72(1) of the Act, which provides:72 Right of spouse to maintenance(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or(c)for any other adequate reason.having regard to any relevant matter referred to in subsection 75(2). As noted by the High Court in Hall v Hall, the Applicant carries the onus of satisfying the Court on the balance of probabilities that she has satisfied the gateway requirement of s 72(1) of the Act. In Saxena v Saxena (2006) FLC 93-268, Coleman J explained at [39] that in determining whether to make an order for spousal maintenance, the Court should follow a four-step process, as follows:(1)Can the applicant support themselves adequately?(2)If not, what are the applicant’s reasonable needs?(3)What capacity does the respondent have to meet those needs?(4)What order is reasonable, having regard to s 75(2) of the Act?Interim costs
Decision
Reasons for decision
The issue of payment of maintenance costs of the vehicle has been dealt with in the order for spousal maintenance.CONCLUSION All interim applications before the Court on 16 November 2021 are otherwise dismissed. When these set reasons for judgment are delivered, and the orders are made, the Court will raise with the parties the inclusion of this matter in the Major Complex Financial Proceedings list. This matter contains a very large property pool and some complex valuation issues may reasonably be anticipated. The prospect of further interim applications also cannot be ruled out.
Ratio Decidendi
Legal Principle Established
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