Nsair and Gyaw & Anor - [2018] FamCA 418

FAMILY COURT OF AUSTRALIA

NSAIR & GYAW AND ANOR

[2018] FamCA 418

FAMILY LAW – PROPERTY – Interim property – Where consideration of applicable principles – Where the wife seeks a distribution of funds to cover legal fees and reasonable living costs – Where the use of funds available to the husband is in dispute – Where the wife is the primary caregiver for the parties’ children – Where the wife is living at her parents’ home and is unemployed – Where the husband does not oppose a distribution of funds to the wife – Orders made for the wife to receive an interim distribution of funds to be characterised at final hearing.

FAMILY LAW – PROPERTY – Spousal maintenance – Where consideration of applicable principles – Where the wife seeks periodic spousal maintenance – Where the wife has the care and control of the parties’ four children – Where one of the children is too young to attend school – Where the wife is unemployed and has no reasonable capacity to seek employment at present – Where the wife is unable to support herself – Where the husband’s capacity to pay is obscured by his lack of disclosure – Where the husband is in a significantly stronger financial position than the wife – Orders made for the husband to pay the wife spousal maintenance.

FAMILY LAW – PRACTICE AND PROCEDURE – Departure prohibition order – Where the husband seeks that the restraint preventing him from leaving Australia be lifted so he can visit his sick father – Where the restraint was put in place to preserve the parties’ assets in circumstances where the husband’s use of joint funds is in question – Where it is appropriate for the prohibition to be lifted if the husband pays a security deposit and grants the wife power of attorney in relation to the sale of one of the parties’ properties – Where the wife seeks the husband’s businesses be valued – Where it is appropriate for a Registrar to deal with this issue – Orders made.

Family Law Act 1975 (Cth) ss 72, 74, 75(2), 79, 114

Bevan & Bevan (1995) FLC 92-600
Harris & Harris (1993) FLC 92-378
Maroney & Maroney [2009] FamCAFC 45
Nsair & Gyaw [2018] FamCA 303
Redman and Redman [1987] FamCA 2; (1987) FLC 91-805
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Ms Nsair

RESPONDENT:

Mr Gyaw

INTERVENOR:

Mr O Gyaw

FILE NUMBER:

PAC

2018

DATE DELIVERED:

8 June 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

20 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Haughton

SOLICITOR FOR THE APPLICANT:

Soden Legal

SOLICITOR FOR THE FIRST RESPONDENT:

Mr Vassili of Michael Vassili Barristers & Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

Mr Ridley as agent for JN Legal

Orders

That the husband pay to the wife or as she may otherwise direct in writing the sum of $500.00 per week by way of interim spousal maintenance pending further…

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.

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Details

Case: [2018] FamCA 418
Decision Date: 8 June 2018

CaseChat Overview and Summary

In the Family Court of Australia, Foster J considered applications by a wife concerning property settlement and spousal maintenance against her husband. The wife, who is the primary caregiver for the parties' four young children, is unemployed and residing with her parents, while the husband's financial position and use of joint funds were in dispute. The husband did not oppose an interim distribution of funds to the wife for her living costs and legal fees, and also sought to lift a departure prohibition order to visit his sick father.

The court was required to determine the wife's entitlement to an interim property distribution to cover her living expenses and legal costs, and her claim for periodic spousal maintenance. Additionally, the court had to consider the husband's application to lift a departure prohibition order, balancing his desire to travel with the need to preserve assets and ensure his participation in the proceedings. The wife also sought the valuation of the husband's businesses.

Foster J ordered the husband to pay interim spousal maintenance of $500.00 per week to the wife, acknowledging her inability to support herself due to her caregiving responsibilities and unemployment, and the husband's superior financial capacity, despite disclosure issues. An interim property distribution of $110,000.00 was ordered from the proceeds of sale of a property, with the balance to be held in trust. The departure prohibition order was conditionally lifted, requiring the husband to grant the wife a power of attorney for the sale of their home and pay a $50,000.00 security deposit, to be refunded upon his return or forfeited to the wife if he failed to return and engage in the proceedings. The valuation of the husband's businesses was to be dealt with by a Registrar, and the matter was otherwise adjourned for directions to prepare for a financial conciliation conference, with costs reserved.

Orders

Orders of the court

That the husband pay to the wife or as she may otherwise direct in writing the sum of $500.00 per week by way of interim spousal maintenance pending further order.

That the husband and wife do all things necessary to cause to be paid to the wife or as she may otherwise direct in writing the sum of $110,000.00 from the proceeds of sale of the property at K Street, Suburb L and that otherwise the balance of the proceeds then remaining be held by the wife’s solicitors in an interest bearing controlled monies account in trust for the parties pending further orders.

That the wife’s solicitors are at liberty to account to the wife or as she may otherwise direct in writing for the balance of funds presently held in their trust account.

That upon the husband:

(a) appointing the wife as his Attorney pursuant to a General Power of Attorney as prepared by the wife’s solicitors for all purposes of and incidental to the sale of the home at K Street, Suburb L and the wife thereafter having carriage of the said sale in her absolute discretion, and the husband is restrained from revoking the said Power of Attorney pending further order or agreement in writing between the parties; and

(b) the husband paying to the wife’s solicitors the sum of $50,000.00 by way of security deposit to ensure his return to Australia should he depart the Commonwealth of Australia with such sum to be refunded to the husband promptly in the event of his return to Australia and the completion of these proceedings or such sum to be otherwise paid to the wife upon these proceedings being listed for undefended final hearing in the event that the husband does not return to Australia and properly engage in these proceedings;

Then parties have leave to forthwith jointly approach the Court in chambers with a consent order discharging the Watch List Order made on 12 February 2018.

That, otherwise, proceedings be listed before a Registrar for appropriate directions so as to prepare the matter for a Financial Conciliation Conference.

That, otherwise, all interim applications be dismissed.

That the costs of both parties are reserved to final trial.

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

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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