NOWING & NOWING - [2014] FamCA 888

FAMILY COURT OF AUSTRALIA

NOWING & NOWING

[2014] FamCA 888

FAMILY LAW – PROPERTY – Interim – Where the wife seeks some 66 separate interlocutory or interim orders and files extensive material – Where the Wife seeks orders for the sale of the former matrimonial home – Where the wife seeks orders for interim spousal maintenance and adult child maintenance – Where the wife seeks orders for litigation funding by way of lump sum as well as orders for disclosure, injunctive relief and costs – Where there was no prospect of all of the applications being able to be heard and determined within the two hour hearing time for interim or procedural applications prescribed by rule 5.10 of the Family Law Rules 2004 – Where the Court resolved to hear those parts of the Application having the most priority and which could be heard within two hours (in addition to reading time) with the balance of the Application to be adjourned to be heard and determined in a subsequent duty list.

FAMILY LAW – PROPERTY – Litigation funding – Exercise of power under s 79 and s 80 – Whether an appropriate case – Form of order to be made.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Nature of interim order for limited period of time – Degree of evidence required – Circumscribed hearing with no
cross-examination.

Family Law Act 1975 (Cth)
Income Tax Assessment Act 1936 (Cth)

Family Law Rules 2004 (Cth)

F and F (1982) FLC 91-214
Marlowe-Dawson & Dawson [2012] FamCA 702
Redman and Redman (1987) FLC 91-805
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

APPLICANT:

Ms Nowing

RESPONDENT:

Mr Nowing

FILE NUMBER:

BRC

3243

2013

DATE DELIVERED:

21 October 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

13 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Brasch

SOLICITOR FOR THE APPLICANT:

Hopgood Ganim

COUNSEL FOR THE RESPONDENT:

Mr Kirk QC

SOLICITOR FOR THE RESPONDENT:

Barry Nilsson

Orders

it is ordered until further order that:

The X Property

The Wife and Husband will do all acts necessary and sign all necessary documents to place the real property situated at Brisbane in the State of Queensland (“the X property”) on the market for sale as agreed to and failing agreement as follows:
(a)on or before 1 December 2014, the X property be listed for sale with such agent as agreed between the Wife and Husband and failing agreement, the Wife shall appoint the agent of her choice and the Husband shall appoint the agent of his choice. Both agents are to be instructed to market the property jointly;
(b)the sale price of the X property is to be as agreed between the Wife and Husband and failing agreement, the value attributed to the property by P Valuers in their report dated 14 February 2014, being $6,250,000.00;
(c)the Wife and Husband shall co-operate in every way with the agent/s including without limiting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NOWING & NOWING

Details

AGLC: NOWING & NOWING [2014] FamCA 888
Case: [2014] FamCA 888
Decision Date: 21 October 2014

CaseChat Overview and Summary

In the matter of NOWING & NOWING, Kent J of the Family Court of Australia considered an application by the Wife seeking numerous interlocutory and interim orders. These included orders for the sale of the former matrimonial home, interim spousal maintenance, adult child maintenance, litigation funding, disclosure, injunctive relief, and costs. Due to the volume of applications and the limited time allocated for interim hearings, the Court determined it could only address the most urgent matters within the prescribed two-hour period.

The primary legal issues before the Court were the appropriate orders to be made concerning the sale of the former matrimonial home, the provision of interim spousal maintenance, and the granting of litigation funding. The Court also had to consider the extent of disclosure and injunctive relief that could be addressed within the limited hearing time, with the remaining applications to be adjourned. The nature of interim orders for limited periods, particularly regarding spousal maintenance, and the degree of evidence required in a circumscribed hearing without cross-examination were also central to the determination.

Kent J ordered that the former matrimonial home be placed on the market for sale, with specific provisions regarding the listing agent, sale price, and co-operation between the parties. The Wife was granted liberty to relocate to the property with sole occupancy until settlement, subject to certain conditions, and was made responsible for specified costs associated with the property, with the Husband to cover others. Upon sale, proceeds were to be appropriated first for sale costs and encumbrances, with the balance to be divided 33% to each party, and the remainder held pending further agreement or court order. The Court also ordered monthly redraws from a bank overdraft facility secured by the property, providing $20,000 per month to each party as partial property settlement, ceasing upon sale or further order. Interim spousal maintenance was ordered to be paid weekly to the Wife, along with her gap medical and dental expenses, subject to reduction by any net income she derived from employment. Further orders by consent addressed the Husband's loan drawings, disclosure of company sale information, and provision of bank statements and financial accounts. The Wife was granted liberty to relist her application for disclosure, injunctions, adult child maintenance, and other outstanding orders in a future duty list, and the requirement for a conciliation conference was dispensed with. Costs were reserved for each party.

Orders

Orders of the court

it is ordered until further order that:

The X Property

The Wife and Husband will do all acts necessary and sign all necessary documents to place the real property situated at Brisbane in the State of Queensland (“the X property”) on the market for sale as agreed to and failing agreement as follows:

(a) on or before 1 December 2014, the X property be listed for sale with such agent as agreed between the Wife and Husband and failing agreement, the Wife shall appoint the agent of her choice and the Husband shall appoint the agent of his choice. Both agents are to be instructed to market the property jointly;

(b) the sale price of the X property is to be as agreed between the Wife and Husband and failing agreement, the value attributed to the property by P Valuers in their report dated 14 February 2014, being $6,250,000.00;

(c) the Wife and Husband shall co-operate in every way with the agent/s including without limiting the generality of the foregoing:

(i) making the key available for the agent/s;

(ii) allowing inspection of the X property at all reasonable times requested by the agent/s;

(iii) doing or saying nothing to hinder or prevent the sale being effected;

(iv) ensuring that the property, including the grounds, are in neat and clean condition at the time of inspection by the agent/s and prospective purchasers; and

(v) signing all documents requested by the agent/s in relation to the listing for sale of the properties except a contract or agreement for sale which has not been authorised by the parties’ solicitors;

(d) in the event that the X property has not been sold within nine (9) months of the listing date, then the Wife and Husband shall have liberty to apply to the Court for further Orders in relation to the sale of the property.

From 24 October 2014, the Wife is at liberty to relocate to the X property and have sole use and occupancy of the property until seven (7) days prior to the settlement of the sale of the X property provided:

(a) upon the giving of twenty-four (24) hours written notice, the Wife provide the Husband access to the X property to allow him or his agent to inspect the property;

(b) the Wife is responsible for the payment of all costs associated with the X property save for:

(i) repayments for the Westpac mortgages (account numbers …856 and …106) and N Pty Ltd overdraft (account number …993);

(ii) rates, water/sewerage and house and contents

insurance expenses;

(iii) gardening and pool maintenance expenses;

(iv) agreed general repair and maintenance expenses;

(v) cleaning costs of a maximum of three (3) hours per

week; and

(vi) security (back to base alarm system).

The Husband shall pay, or cause to be paid, the expenses listed in paragraph 2(b) above.

Upon the sale of the X property, the gross proceeds of sale are to be appropriated in the following order and manner:

(a) all costs and expenses of sale including legal costs and disbursements, agent’s fees and commission, including marketing and advertising costs;

(b) payment of the Westpac mortgages (account numbers …856 and …106) and N Pty Ltd overdraft (account number …993) and any other encumbrance affecting the property;

(i) 33% to the Wife;

(ii) 33% to the Husband; and

(iii) the balance then transferred to the trust account of Barry.Nilsson. Lawyers and invested in the name of the Wife and Husband in an interest bearing account pending written agreement between the parties or an Order of the Court.

If either party refuses or neglects to sign any document or do anything as may be reasonably required to give effect to these Orders within forty-eight (48) hours of the service of a demand upon him or her to sign the document or to do the thing, a Registrar of the Family Court of Australia be appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to execute all documents and do all acts and things necessary in the name of the defaulting party to give validity and operation to these Orders and the affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance. The defaulting party shall be responsible for the payment of the non-defaulting party’s costs associated with the appointment of the Registrar on an indemnity basis.

Litigation Funding

Each party do all acts and things reasonably required, including signing any necessary documents, so as to cause monthly redraws to be made (commencing October 2014 and each month thereafter) from the Westpac bank overdraft redraw facility secured by the X property, so that each party receives as and by way of partial property settlement $20,000.00 each month up to a total of $300,000.00 for each party provided that such redraws shall cease upon settlement of the sale of the X property or further order.

Interim Spousal Maintenance

Pending the Wife’s receipt of her share of the net proceeds of sale of the X property and commencing in the week beginning 20 October 2014 and weekly thereafter the Husband shall cause to be paid to the Wife as and by way of interim spousal maintenance:

(a) the sum of $2,178.00 (net of tax);

(b) the Wife’s gap medical and dental expenses

provided that in any week such payments shall be reduced by the amount of net income from employment derived by the Wife, as to which the Wife is to keep the Husband advised.

It is further ordered by consent until further order that:

The Husband reduce his loan drawings from N Pty Ltd to $1,500.00 per week.

In the event that M Pty Ltd obtains an unconditional contract for the sale of the property at B Street, the Husband shall request the approval of the board of that company to release to the Wife the information and documents the Wife has requested of the Husband with respect to such sale.

10.

On the 10th day of each month the Husband shall provide to the Wife copies of the previous month’s bank statements for all accounts in respect of which the Husband has authority to provide.

11.

Within ten (10) days of completion, the Husband will provide to the Wife copies of the quarterly general ledgers and quarterly management accounts for N Pty Ltd.

It is further ordered that:

12.

The Wife have liberty to re-list her Application in a Case filed on 21 July 2014, to the extent that orders are sought for disclosure, injunctions, adult child maintenance or other orders sought not dealt with by these Orders, to a future duty list for interim applications.

13.

The requirement that the parties attend a Conciliation Conference with a Registrar of this Honourable Court is dispensed with.

14.

The Conciliation Conference listed before the Registrar at 9.00 am on 29 October 2014 be vacated, and the substantive proceedings proceed as if such a Conciliation Conference had been held.

15.

Each party’s costs of the Wife’s Application in a Case filed 21 July 2014 be reserved.

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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