Notaras & Notaras

Case [2021] FamCA 527

FAMILY COURT OF AUSTRALIA

Notaras & Notaras [2021] FamCA 527

File number(s): SYC 2434 of 2021
Judgment of: ALTOBELLI J
Date of judgment: 20 July 2021
Catchwords: FAMILY LAW – INTERIM SPOUSAL MAINTENANCE – exclusive occupation – where one party has been the sole income earner since separation – whether the parties remain separated under one roof living with the children of the relationship – capacity to engage in employment in a COVID-19 affected economy – assessment of need – spousal maintenance ordered – costs reserved.   
Legislation:

Evidence Act 1995 (Cth) s 135

Family Law Act 1975 (Cth) ss 72, 74 and 75

Cases cited: Naylen & Naylen [2021] FamCA 392
Number of paragraphs: 39
Date of last submission/s: 28 June 2021
Date of hearing: 28 June 2021
Place: Sydney
Counsel for the Applicant: Mr Dura
Solicitor for the Applicant: Unified Lawyers
Counsel for the First Respondent: Mr Coleman SC
Solicitor for the First Respondent: Lionheart Lawyers
The Second Respondent: No appearance
Solicitor for the Second Respondent James Papas Solicitors

ORDERS

SYC 2434 of 2021
BETWEEN:

MR NOTARAS

Applicant
AND:

MS NOTARAS

First Respondent

MR WINGATE
Second Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

20 JULY 2021

THE COURT ORDERS THAT:

1.The wife’s application insofar as it relates to exclusive occupation of the property at B Street, Suburb C NSW ("the Suburb C Property") is dismissed.

2.The wife’s application insofar as it seeks an interim distribution of funds is dismissed.

3.By way of interim spousal maintenance, the Respondent husband pay to the Applicant wife the sum of $421 per week to be paid to an account nominated by the wife with the first payment to be made 14 days from the date of this order.

4.Until further order, the husband be solely responsible, to the exclusion of the wife, for all costs associated with the Suburb C Property, including but not limited to mortgage repayments, council rates, insurances and utility bills.

5.Until further order, the wife be restrained from withdrawing, transferring or otherwise accessing any funds from any account held by D Pty Ltd.

6.On a without admissions basis and until further order, both parties be restrained from denigrating or harassing the other.

7.Each party’s costs of the interim applications before me be reserved.

8.The matter be referred back to the Docket Registrar for further case management.

IT IS NOTED THAT:
The husband agreed to meet the repayments referred to in order 4 herein.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Notaras & Notaras has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act

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AGLC
Notaras & Notaras [2021] FamCA 527
Case
[2021] FamCA 527
Decision Date

CaseChat Overview and Summary

In *Notaras & Notaras*, Altobelli J of the Family Court of Australia considered competing interlocutory applications made by the applicant wife and the first respondent husband in substantive property and maintenance proceedings. The parties, both aged 49, had cohabited since 1996 and separated in 2020, though they continued to reside in the former matrimonial home with their three children. The husband was the sole income earner, deriving income from a business conducted through corporate entities, while the wife's capacity to engage in employment was affected by the COVID-19 pandemic. The proceedings also involved a second respondent, Mr Wingate, a director of the corporate entities, who did not participate in the interim dispute.

The court was required to determine several issues, including whether to grant the wife exclusive occupation of the former matrimonial home, the wife's entitlement to interim spousal maintenance and payment of all expenses associated with the home, and interim financial provision for unspecified purposes. Additionally, the court had to consider various injunctive relief sought by both parties, including restrictions on accessing funds from corporate entities and restraining the parties from denigrating or harassing each other. The question of costs for the interim applications was also before the court.

Altobelli J dismissed the wife's application for exclusive occupation of the property and for an interim distribution of funds. However, by way of interim spousal maintenance, the husband was ordered to pay the wife $421 per week. The husband was also ordered to be solely responsible for all costs associated with the former matrimonial home, including mortgage repayments, council rates, insurances, and utility bills. The wife was restrained from accessing funds from any account held by D Pty Ltd, and both parties were restrained, on a without admissions basis, from denigrating or harassing each other. The costs of the interim applications were reserved, and the matter was referred back to the Docket Registrar for further case management.

Orders

Orders of the court

SYC 2434 of 2021

BETWEEN:

MR NOTARAS

Applicant

AND:

MS NOTARAS

First Respondent

MR WINGATE

Second Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

20 JULY 2021

THE COURT ORDERS THAT:

1. The wife’s application insofar as it relates to exclusive occupation of the property at B Street, Suburb C NSW ("the Suburb C Property") is dismissed.

2. The wife’s application insofar as it seeks an interim distribution of funds is dismissed.

3. By way of interim spousal maintenance, the Respondent husband pay to the Applicant wife the sum of $421 per week to be paid to an account nominated by the wife with the first payment to be made 14 days from the date of this order.

4. Until further order, the husband be solely responsible, to the exclusion of the wife, for all costs associated with the Suburb C Property, including but not limited to mortgage repayments, council rates, insurances and utility bills.

5. Until further order, the wife be restrained from withdrawing, transferring or otherwise accessing any funds from any account held by D Pty Ltd.

6. On a without admissions basis and until further order, both parties be restrained from denigrating or harassing the other.

7. Each party’s costs of the interim applications before me be reserved.

8. The matter be referred back to the Docket Registrar for further case management.

Background

Background to the litigation

These reasons for judgment explain the orders made in competing interlocutory applications in the course of substantive property and maintenance proceedings.BACKGROUND The Applicant wife and First Respondent husband are both 49 years old. They commenced cohabitation and married in 1996. They separated, albeit under the same roof, in 2020, the wife asserting that separation occurred in June 2020 and the husband asserting that separation occurred in November 2020. Nothing turns on the date of separation for present purposes. The parties continue to live in what was their family home together with their three children aged 20, 18 and 16. The parties have competing property applications. Notably, there is a Second Respondent in this matter, Mr Wingate. Mr Wingate is the director of various corporate entities that, the wife asserts, hold property of the marriage. At the commencement of the hearing counsel advised me that the Second Respondent would not be participating in the present interim dispute. This accords with the nature of the interim issues before me and the matter therefore proceeded on that basis. It is common ground, and in any event patently obvious from the evidence of both parties, that the business, D Pty Ltd ACN …, carried on by the husband through corporate entities has been the main source of income for the family throughout most of the parties’ relationship and, currently, is the only source of income. It is common ground that there is nearly $450,000 standing to the credit of a controlled monies account held for the benefit of the parties. This represents the proceeds of the sale of property. The following relevant orders remain in effect, pursuant to the orders made by Registrar Turner on 19 April 2021: 5. That except as provided by these Orders, the funds in the controlled monies account from time to time shall not be disbursed unless the Applicant and the First Respondent agree in writing, pending further order of the Court. 6. That pending further order neither the Applicant nor the First Respondent shall encumber or further encumber the property at B Street Suburb C NSW without the prior written consent of the other party or further order. 7. That, except to carry on the usual course of business, the Husband is both personally and in his capacity as director or secretary of D Pty Ltd ACN …, F Pty Ltd ACN …, and G Pty Ltd ACN … (“the Entities”) is restrained by injunction from doing any of the following:a. sell, transfer, assign, encumber or alienate his shares and/or interest of any nature whatsoever in the Entities;b. sell, transfer, assign, encumber or alienate any asset owned by the Entities;c. issue any new shareholding in any of the Entities;d. issue any new unitholding in any of the Entities; and/ore. appoint a new director or secretary to any of the Entities.8. That except as otherwise agreed in writing neither party may draw upon any loan account and bank account of D Pty Ltd except in the ordinary course of business and/or in the ordinary course of meeting the reasonable expenses of the Applicant, the First Respondent and the children of the spouse parties, and in this regard the First Respondent shall continue to cause the mortgage, rates and outgoings of the Suburb C property to be paid from the said bank account pending further order.COMPETING INTERLOCUTORY APPLICATIONS

Evidence

Evidence Before The Court

The orders sought by the Respondent husband are set out in his Response to the Application in a Case dated 11 June 2021. Doing the best the Court can to understand his claim, he sought orders 1 – 7 inclusive, in the following terms: 1. Order 8 of the Orders made 19 April 2021 be discharged.2. Within seven (7) days of these Orders, and pursuant to s 79(6) of the Family Law Act 1975, both parties shall receive the sum of $150,000 from the controlled monies account managed by Lionheart Lawyers (BSB: …, Account No.: …) ('controlled moneys account').3. The husband shall be solely responsible, to the exclusion of the wife, for all costs associated the Suburb C property, including but not limited to mortgage repayments, council rates, insurances and utility bills.4. The wife be hereby restrained from:4.1. Withdrawing, transferring or otherwise accessing any funds from any account held by D Pty Ltd; and4.2. Using any secondary credit card that she has on the applicant's credit cards.5. The husband is hereby restrained from:5.1. Withdrawing, transferring or otherwise accessing any funds from any account held by D Pty Ltd for personal expenses;5.2. Withdrawing, transferring or otherwise accessing any funds from any account held by D Pty Ltd except in the ordinary course of business.6. The wife's interim application be otherwise dismissed.7. Costs.THE EVIDENCE BEFORE THE COURT In support of her case, the wife sought to rely on the following documents:(a)Her Further Amended Initiating Application filed 24 May 2021;(b)Her Affidavit filed 25 June 2021 and corresponding Exhibit bundle;(c)Her Financial Statement filed 6 April 2021;(d)An Undertaking as to Disclosure filed 23 June 2021;(e)A Court Book filed 25 June 2021; and(f)A Case Outline document filed 27 June 2021. In support of his case, the husband sought to rely on the following documents:(a)His Amended Response to Initiating Application filed 11 June 2021;(b)His Financial Statement filed 15 June 2021;(c)His Affidavit filed 11 June 2021 and corresponding Exhibit bundle;(d)Affidavit of Ms H filed 17 June 2021;(e)A Court Book emailed to Chambers on 28 June 2021 and marked by the Court as exhibit R1; and(f)A Case Outline document filed 25 June 2021.THE ISSUES Having regard to the above, the issues for the Court to decide are as follows: ·Exclusive occupation of the family home in Sydney;·Spousal maintenance including payment of all expenses relating to the home;·Interim financial provision for legal costs;·Interim financial provision for unspecified purposes;·Various injunctions; and·Costs.UNCONTESTED MATTERS There is common ground evident from the competing proposals. Whilst the wife seeks to exclude the husband from the former matrimonial home, the husband does not seek to exclude the wife, and therefore her continued presence in the home is not in issue. Additionally, the husband agrees that he will pay all costs associated with the family home, including but not limited to mortgage payments, council rates, insurances and utility bills.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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