Notaro and Notaro - [2011] FMCAfam 525

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NOTARO & NOTARO

[2011] FMCAfam 525

FAMILY LAW – Urgent spousal maintenance – interim property distribution.

Federal Magistrates Court Rules 2001, r.13.07

Applicant:

MS NOTARO

Respondent:

MR NOTARO

File Number:

BRC 9698 of 2009

Judgment of:

Coates FM

Hearing date:

27 May 2011

Date of Last Submission:

27 May 2011

Delivered at:

Brisbane

Delivered on:

27 May 2011

REPRESENTATION

Solicitors for the Applicant:

M-Y Family Lawyers

Solicitors for the Respondent:

Alex Mackay & Co Lawyers

ORDERS

That on determining this matter summarily pursuant to rule 13.07 of the Federal Magistrates Court Rules 2001, the sum of $20,000 be paid to the Wife from the joint funds held in the James White Trust Account on behalf of the parties, to be characterised at the final Trial, and this Order is sufficient authority on behalf of both parties to the said solicitors for the release of the same.
That the applicant wife’s costs be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Notaro & Notaro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 9698 of 2009

MS NOTARO

Applicant

And

MR NOTARO

Respondent

REASONS FOR JUDGMENT

The trial of the substantive property matter has been set for three days commencing 27 June 2011, which is in four weeks time.
The wife filed an urgent application on 26 May 2011 for urgent spousal maintenance.
The matter was heard on 27 May 2011.
She sought:-
“1. Orders are sought pursuant to interalia sections 72, 74 and 77 of the Family Law Act 1975:
1.1 that the Husband pay the Wife Spousal Maintenance on an urgent interim basis as follows:
a. $15,000 lump sum payment, payable immediately from the joint funds held in the James White Trust Account on behalf of the parties, and this Order is sufficient authority on behalf of both parties to the said solicitors for the release of same;
b. $1,000 per week, to be paid by the Husband and not to be paid from the joint funds held in the James White Trust Account.
1.2 FURTHER AND IN THE ALTERNATIVE to the Orders sought in paragraph 1.1. hereof, that the sum of $20,000 be paid to the Wife from the joint funds held in the James White Trust Account on behalf of the parties, to be characterised at the final Trial, and this Order is sufficient authority on behalf of both parties to the said solicitors for the release of the same.
2. That the Husband pay the Wife’s costs of and incidental to this Application on an indemnity basis or other basis as the Court deems meet.
3. Any other or further Order as the Court deems meet.”
On reading the material I considered prima facie that it was urgent because the wife is presently in a psychiatric facility and she claimed she was running out of funds to stay in the facility, as well as needing funds to support herself and children.
With little time to respond the husband filed, by leave on Friday 27 May 2011, the following response:
“1. That from the joint funds held in the James White Trust Account on behalf of the parties:
(a) $20,000.00 be paid to the applicant wife; and
(b) $20,000.00 be paid to the respondent husband,
to be characterised at the final trial.
2. That order 1 above be sufficient authority on behalf of both parties to James White Lawyers for the payments provided for therein.
3. That the applicant file and serve written submissions as to costs within 7 days of the date of this order.
4. That the respondent file and serve written submissions as to costs within 14 days of the date of this order.”
As can be seen there is no difference between draft order 1.2 as sought by the wife and draft orders 1(a) and 2 as sought by the husband.
I raised with the parties whether I could dispose of the whole or part of the matter under r.13.07 of the Federal Magistrates Court Rules2001.
Rule 13.07 states:
“13.07 Disposal by summary judgment
(1) This rule applies if, in a proceeding:
(a) in relation to the whole or part of a party’s claim there is evidence of the facts on which the claim or part is based; and
(b) either:
(i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or
(ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part.”
(2) The Court may give judgment on that claim or part and make any orders or directions that the Court considers appropriate.
(3) If the Court gives judgment against a party who claims relief against the party obtaining the judgment, the Court may stay execution on, or other enforcement of, the judgment until determination of that claim.”
The solicitor for the wife submitted that I could apply the rule and she asked for summary judgment on her client’s application.
The solicitor for the husband submitted that his consent to the payment of $20,000 to the wife was conditional upon him receiving $20,000 from joint monies held for the parties in trust.
To that submission, the wife’s solicitor stated that the draft orders 1(a) and (b) of the husband’s response were not joined with the word “conditional”, which meant they were two separate orders and it could not be the case that I did not have power under the rule to dispose summarily of the wife’s application.
She said the wife sought urgent spousal maintenance under s.77 of the Family Law Act 1975. She said the husband was seeking an interim spousal maintenance order under s.72. She said his matter could not be disposed of summarily, because it did not coincide with any of the orders sought by the wife and there was no evidence upon which to determine his matter summarily.
In my view, I was not sure whether he was raising a spousal maintenance case or an interim distribution of property case, since the response document did not identify the basis for the order and he did not have time to file an affidavit.
The legal question for me as raised by the husband is whether the conjunction “and” means that his first draft order is conditional to the second draft order as claimed?
While it is usual to interpret the conjunction “and” with a meaning that words, clauses or sentences are to be taken jointly, that is only a grammatical device which brings a sense of flow and consistency to a sentence. It is not always the case that the use of the word means all words are to be interpreted as being intimately connected.
The draft orders are not in the form of a common sentence, they are in the form of an enumerated list, using letters instead of numbers, set out for clarity.
The draft orders are not in singular form, there are two orders indicated by the letters (a) and (b).
They are two statements of what is sort - two separate transactions on a trust account which will result in two separate payments from that trust account, one to each party.
The conjunction “and” does not mean “conditional”, which can be an adjective or noun taken from the word “condition” which means a stipulation or a dependency.
If the husband intended to seek orders one dependent on the other, then he must use the word “conditional” between the draft orders (a) and (b) in his response, or state them in a manner where there would be no ambiguity.
On that basis, I will make an order by disposing of the wife’s application summarily, pursuant to the r.13.07, because there can be no argument that there is not agreement on reading the application and response.
I accepted that the husband had not had time to respond and he should be afforded procedural fairness to put his case.
At the end of the hearing today his solicitor stated that because the trial was so near, he would not pursue the matter now.
I reserved costs to the trial after an oral application by the wife’s solicitor.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Coates FM

Date: 27 May 2011