OCHOA & SCHIRMER
[2020] FCCA 1207
•17 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OCHOA & SCHIRMER | [2020] FCCA 1207 |
| Catchwords: FAMILY LAW – Interim defended hearing – orders made. |
| Legislation: Family Law Act 1975 (Cth), s.114 |
| Cases cited: Gillim & Gillim [2019] FamCA 897 Marvel & Marvel [2010] FamCAFC 101 |
| Applicant: | MS OCHOA |
| Respondent: | MR SCHIRMER |
| File Number: | PAC 4299 of 2019 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 17 February 2020 |
| Date of Last Submission: | 17 February 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 17 March 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Keen - Keen Lawyers |
| Solicitors for the Respondent: | Mr West - Coleman Greig Lawyers |
ORDERS
The Court makes the following orders:
That within 30 days of the making of these Orders, the parties shall do all such things and sign all documents necessary to cause the sale of property situated at and known as A Street, Town B in the State of New South Wales, being the property described in Folio Identifier …91 (“the Town B property”) in accordance with the conditions contained in Order 2 below, and the proceeds of sale shall be paid in the following manner and priority:
1.1Payment of the agent’s commission and advertising or other expenses, payable on the sale;
1.2 Payment of the legal costs on the sale;
1.3In payment to C Bank to discharge the mortgage secured over the Town B property;
1.4 An amount of $100,000 each to the Respondent and the Applicant;
1.5The balance thereafter to be paid into an interest-bearing account in the joint names of the parties.
That subject to the preceding Orders in relation to the sale of any real property as contemplated by Orders 1 above, the parties shall give effect to the following conditions of sale:
2.1The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of the first party proposing a real estate agent, the real estate agent will be as nominated by the President of the Real Estate Institute of New South Wales at the request of the parties or either of them.
2.2The parties shall instruct a solicitor/conveyancer to act on the conveyance of the property as is agreed between the parties and failing agreement within 14 days from the date of the first party proposing a solicitor/conveyancer, a solicitor/conveyancer will be nominated by the President of the Law Society of New South Wales at the request of the parties or either of them, and the costs of and incidental to that appointment will be borne equally by the parties.
2.3The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the appointment of the agent pursuant to 2.1 above then the list price will be as nominated by the real estate agent appointed to sell the property.
2.4The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price.
2.5The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
2.6That upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
2.7The contract of sale shall provide for completion within 42 days after the date of the contract, unless otherwise agreed between the parties in writing.
2.8In the event that the property is not sold by private treaty on or before 6 months from the date of listing then the parties shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
2.8.1The property shall be listed with the agent appointed under 2.1 above for sale by auction within a further 3 months;
2.8.2The parties shall execute all documents requested by the auctioneer for sale of the property by auction;
2.8.3The reserve price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;
2.8.4The parties shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from their share of the proceeds of sale;
2.8.5The parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer;
2.8.6The parties agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction;
2.8.7That the parties attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached;
2.8.8The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 90% of the reserve price shall be accepted by the parties; and
2.8.9That upon agreement being reached for sale of the property, paragraphs 2.6 and 2.7 shall apply.
2.9In the event that the property is not sold at the auction pursuant to Order 2.8 above or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the property to be held and for that purpose the provisions of Order 2.8 above shall apply and in the event the property remains unsold, the property shall continue to be re-submitted for auction at 3 monthly intervals until sold.
The proceedings are adjourned for mention to 22 April 2020 at 11:30am.
IT IS NOTED that publication of this judgment under the pseudonym Ochoa & Schirmer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4299 of 2019
| MS OCHOA |
Applicant
And
| MR SCHIRMER |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment relate to the determination of the wife’s interim applications that the parties’ former matrimonial home at Town B (the home) be sold, and that there be an interim property provision to each party of $100,000 from the net proceeds of sale of the home with the balance of the net proceeds of sale to be placed into an interest-bearing account in the joint names of the parties. Those applications are opposed by the husband.
Background
The Initiating Application of the wife filed 3 September 2019 sought interim orders as referred to above.
Then on 13 February 2020 the wife caused an Amended Application for final orders to be filed, in which she sought, pending sale of the home, sole occupancy of the home and that thereafter she assume all responsibility for the payment of all outgoings on the property pending sale.
At the commencement of the interim hearing the husband contended that the wife’s Amended Application seeking proposed orders for sole occupancy of the home had been only very recently brought to the notice of the husband, and as a result the husband was unable to meet that application and, further, the wife’s proposed order for the sale of the home was unenforceable because it lacked sufficient particularity in relation to the mechanics of the proposed sale.
Those contentions of the husband led the wife to abandon the proposed orders sought in her Amended Application, but to seek orders for the sale of the home in accordance with the husband’s proposed orders for the sale of the home as sought in his Response filed 29 October 2019.
Specifically, the wife sought orders for the sale of the home and interim property adjustment as follows:
She sought, under the heading “Final Orders Sought”, in the husband’s Response filed 29 October 2019, orders 2, 2.1, 2.2, 2.3, but adding the following amendment to Order 2.4, “An amount of $100,000 each to the respondent and the applicant”, and the following amendment to Order 2.5, “The balance thereafter to be paid into an interest-bearing account in the joint names of the parties”. Further, the wife sought order 3 (including subparagraphs 3.1 to 3.9, inclusive) in the husband’s Response. The interim hearing then proceeded accordingly.
Material relied upon
The wife relied upon the documents referred to in her case outline dated 12 February 2020. She also relied upon a two page outline of submissions document dated 17 February 2020.
The husband relied upon the documents referred to in his case outline dated 10 February 2020.
The wife’s evidence
The wife is aged 55 years, the husband is aged 53 years. They commenced cohabitation in 2004.
The wife brought into the relationship a property at Suburb D valued at about $650,000 and unencumbered. The parties took up residence in that property. The wife paid the outgoings on that property.
The parties borrowed money using the above property to obtain a mortgage loan of $50,000 for renovations. For this purpose the husband’s name was placed on the title of the property. Thereafter the husband made the mortgage repayments. The Suburb D property was sold for about $820,000. Then the home was purchased for $740,000 using the sale proceeds from the Suburb D property.
The wife is employed full-time by the Employer J. The husband is employed as a public servant with Employer E. He has been with Employer E for at least 32 years. The wife asserts that she has been in full-time employment throughout the entire duration of the parties’ relationship and marriage, always working a full working week and has always used her income to maintain the home and support the husband and children.
In 2014 the parties borrowed money from C Bank in the sum of about $150,000 to pay for renovations to the home. The husband made the repayments on this mortgage loan.
The wife asserts that since about 2016 the parties have been arguing a lot. She asserts they have resulted in verbal abuse being directed towards her and the husband ignoring her for days on end.
In February 2019 the wife asserts that the parties had a major argument. The wife asserts that she considers the parties’ separation occurred in early March 2019 and the husband moved out of the matrimonial bedroom.
The wife asserts that in about mid-March 2019 on return from a trip to interstate, the husband started screaming and hurling abuse at her, including very foul language. She asserts that the parties’ relationship rapidly declined and in May 2019 the wife decided she could no longer tolerate the husband’s verbal abuse and his threatening behaviour towards her. She asserts instances of verbal abuse by the husband towards her thereafter. The wife asserts she found this abuse to be very upsetting and she felt extremely anxious and started consulting her treating GP for symptoms of psychological trauma.
In late July 2019 the wife asserts that she was at the home. When she heard the husband’s car arrive the wife locked herself in the parties’ bedroom. Then the husband entered the house and started banging on the bedroom door demanding that the wife unlock the door. He started screaming at her and swearing at her. The wife asserts she was fearful of the husband and went straight to the local police to report the threats the husband had made to her.
The wife asserts that since the parties’ separation in March 2019 she had become extremely anxious and depressed. She asserts that the husband’s aggressive and threatening behaviour towards her has impacted on her physical and mental wellbeing and she is finding it incredibly difficult to function. She has been attending upon her GP on a regular basis and also attending upon a woman’s service for support and a psychologist for counselling.
The wife, in paragraph 38 of her affidavit filed 3 September 2019, asserts examples of the husband’s threats, actions and demands against her.
In paragraph 39 of her above affidavit, the wife asserts that she has been under the care of her treating GP, Dr F, for about the past seven years. She asserted over these past few months she has been very distressed, crying and anxious, becoming concerned for her safety, and she is likewise concerned that the husband will try and burn down the house. She asserts that she also feels that with the psychological trauma she is experiencing the level of pain in her back has increased in severity. In this latter context the wife asserts that she has had previously suffered a serious lower back injury.
The wife’s affidavit filed 11 February 2020 refers to her diary entries from about October 2019 to date in relation to the husband. Inter alia they assert excessive noise made by the husband returning home when the wife is asleep, the husband not being present at the home on various days, and regularly leaving toilets unflushed.
The wife asserts that the husband attends at the home for brief periods but has not stayed overnight in the home for about 54 nights from 4 November 2019.
The wife asserts she no longer communicates with the husband. She asserts that the husband does not maintain the home, including the outside of the home. The wife asserts she does not have a physical capability of mowing the lawns or maintaining the outside of the home because of her lower back condition.
The wife asserts she has had the police attend the home on two occasions due to the conduct of the husband. She refers to and asserts incidents on 15 July 2019 and 4 December 2019.
The wife relies upon a medicolegal report of her GP attached to the GP’s affidavit filed 31 October 2019. It is dated 22 October 2019. The doctor states, inter alia, that the information that forms the basis of his medical report is the medical record from his medical practice. He states that this medical record acts as a summary of all the consultations conducted between the wife and himself throughout the last seven years.
The doctor states that in his opinion the wife is suffering psychological trauma as a result of having to reside in the same premises as the husband. He states that since the parties’ separation the wife has presented to him quite anxious and at times teary and distressed and appearing tired. She had requested to take time off work due to her psychological distress on several occasions. He states that the wife had told him that the husband had been sending abusive text messages on her phone and that she constantly felt anxious when she was in the house with him. She reported to the GP a history of verbal abuse for many years, allegedly by the husband, including frequent derogatory comments about her appearance and her decreased mobility as a result of her back condition. The wife also reported to the GP that she felt the husband would intentionally make a loud racket in the house such as slamming doors and stomping loudly up and down the stairs. The wife had told the GP that she basically spent all her time in her bedroom with her door locked when at home. She told the GP that she would try to avoid the husband. She referred to incidents involving the husband on 16 July 2019 and 9 April 2019, as referred to in the report. The doctor states that based on the history provided to him the alleged conduct of the husband would be causative of the psychological trauma that the wife is presently experiencing. The doctor stated that this psychological trauma had been most apparent to him following from the time of the parties’ separation.
The doctor states in his report that following the history-taking, the examination, and relying on the DSM-5 (1) criteria the wife is suffering from a reactive anxiety based on the above reported symptoms and signs noted. The doctor refers to recommended treatment, counselling and support for the wife. He refers to medication having been prescribed for the wife for symptoms of anxiety. The doctor refers to the wife requiring daily use of the medication for her neuropathic pain originating in her lumbar spine.
The doctor states in his opinion that the sale of the house with a subsequent allowance for each party to reside independently of each other would be beneficial to the wife from a medical point of view. He states that the wife has mentioned to the doctor on several occasions that living with the husband is the cause of her current psychological trauma.
The doctor states in his opinion that if the wife continues to reside in the same residence as the husband her reactive anxiety would worsen as a result. This would potentially impact negatively on her physical and emotional wellbeing as well as her ability to concentrate in the work setting.
The husband’s evidence
The husband asserts there are no children of the marriage. Each party had children from previous relationships.
The husband asserts that the parties have lived there separated under the one roof since the separation in early March 2019. He asserts that at cohabitation date he had, inter alia, superannuation entitlements of about $158,000.
The husband asserts that the mortgage loans obtained over the home totalling about $145,000 were obtained to improve the home (including construction of a granny flat) and these mortgages were paid out by the husband from his inheritance. He asserts that a later mortgage loan for about $145,000 obtained in 2015 to build a swimming pool and landscaping were serviced by him. He asserts that for about 10 years during the relationship he obtained a lease through his employer to provide the wife with fully-maintained motor vehicles and that the payments for the relevant leases for the cars were deducted from his salary. He asserts that an inheritance received by him 2006 for about $165,000 was utilised to fund a family holiday and to purchase the wife a new car, and to undertake certain repairs and improvements to the home. The husband asserts that his income during the relationship was applied for the benefit of the family. He asserts he financially supported the wife’s children during the relationship. He asserts that post-separation he has continued to meet all of the loan repayments for the mortgage over the home and other outgoings.
The husband denies the wife’s allegations that he verbally abused her post-separation. He denies threatening her and to burn the house down (whilst the Court observes that he appears to state in an exchange of text messages between himself and the wife, in Exhibit A, that he merely jokingly referred to burning the house down).
In relation to the incident involving the police on 15 July 2019, inter alia, the husband admits that he was frustrated and banged on the door pleading with the wife to let him into the room to get his belongings.
The husband admits that the parties had arguments and exchanged hurtful comments towards each other, which had led to their separation.
The husband asserts that he has text messages exchanged between the parties which evidence that at no stage has the husband been verbally abusive and which show that the wife is not afraid of him.
The husband tendered in evidence a bundle of copied text messages passing between the parties and forming part of exhibit A. The messages appear to span the period from about March 2019 to September 2019. A significant number of text messages passing between the parties are civil and some text messages from the husband to the wife deny threatening behaviour by the husband to the wife. On the other hand, there is a text message of the wife where she asserts to the husband that he has verbally abused and sworn at her with no immediate denial by the husband (“How dare you call me a “greedy fucking count of a woman”…, with the husband responding, “Good luck”). A text message from the husband to the wife of 31 May 2018 states: “Just had it out with your solicitor. You are delusional and a liar.” The Court observes there are text messages from the wife to the husband (for example 9 June: “I am not going to live with verbal abuse and threatening behaviour in my own home” and on 11 June: “You just go off and say and call me the most vicious names with such venom in your voice. I just can’t get past it.”) which are consistent with her affidavit allegations of verbal abuse. Another text message from the wife to the husband states, inter alia, “How dare you call me a fat ugly dog and to use your super to get a facelift.” Another text message from the wife to the husband states, “Oh yes I do and you verbally abuse me” to which the husband replies, “As u do to me.” The Court observes that a significant number of text message exchanges between the parties reflect their ongoing disputation and disagreements relating to property settlement.
The husband asserts that he works shift work over an eight week cycle and will work two full 24 hour days a week and have five days off. The husband asserts that he does not presently have adequate funds to pay for rental accommodation from his disposable income. He asserts that the average weekly rent for a three to four bedroom home is $533 in Suburb G and Suburb H. He does not state why he would personally need to rent a three to four bedroom home for himself as opposed to a home with less bedrooms. The husband refers to presently paying $167 per week for the mortgage on the home. He asserts he will save $366 per week if he continues to reside in the home as opposed to renting a property for $533 per week. He asserts that the parties rarely come into contact with each other at the home. He asserts that if there is an interim sale of the home it will place him under significant financial strain and that the parties will both be in a better financial position if they continue to reside in the home pending finalisation of these property proceedings.
The parties’ respective Financial Statements indicate that their weekly incomes and expenditure are comparable and that their weekly expenditures result in their weekly incomes being almost full spent.
From the husband’s Financial Statement, should the property be sold and the mortgage to his credit union be paid off, the husband will have weekly savings of $167 (the mortgage loan repayment), $61 (rates), $41 (building insurance), a total of $269.
Wife’s application for sale of the home
The wife seeks an interim order for sale of the home. It can be inferred that her additional application for an interim property provision of $100,000 to each party from the net proceeds of sale will enable her (and indeed the husband) to rent accommodation pending the resolution of these property proceedings. On the material before the Court, including the wife’s Financial Statement, there is a significant suggestion that the wife cannot afford, without interim property provision, to leave the home and rent premises elsewhere.
As discussed below, it will be appropriate and in the interests of justice to order that each party receive $100,000 from the net proceeds of sale of the home.
As to the wife’s interim application for sale of the home, section 114 of the Family Law Act 1975 (the Act) provides:
The Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate.
The Court refers to the Full Court of the Family Court of Australia’s decision in Marvel & Marvel [2010] FamCAFC 101 as to the difficulty in fact finding in interim proceedings where evidence cannot be tested.
The Court is also mindful that the medicolegal report of Dr F is unable to be tested at this interim stage. Nevertheless, it takes into account the opinions in his report relating to the wife, particularly noting that the doctor had stated that the information that forms the basis of this medical report is the medical record from the medical practice.
There is a significant suggestion on the material before the Court that the wife has been subjected to verbal abuse and other adverse behaviour from the husband living in the home separated under the one roof with him, previously referred to in the above reasons. And further, and consequently, there is a significant suggestion on the material before the Court that the wife is suffering adverse mental health by reason of having to live in the home under the one roof with the husband. There is a significant suggestion on the material before the Court that should the wife reside independently from the husband (away from the home) her mental health would improve significantly.
The Court observes that the husband (and the wife) seek orders for the sale of the property, albeit orders on a final basis and not on an interim basis.
The Court takes into account that by reference in particular to the wife’s diary entries, the husband has spent significant time away from the home in the second half of 2019.
The Court takes into account that should the home be sold the husband will be relieved of certain weekly financial outgoings in relation to the home.
In the view of the Court, it will be proper, appropriate and in the interests of justice that the home be sold on an interim basis as proposed by the wife.
Interim property
In the decision of Foster J in Gillim & Gillim [2019] FamCA 897, the relevant principles as to interim property adjustment were stated as follows:
33. The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.
34. In Strahan (supra), the Full Court said:
132. In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
35. Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.
36. Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth) (“the Act”). It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.
37. A detailed inquiry is not required, but there must be some assessment of s 79 factors.
38. In Strahan the Full Court went on to say:
137. Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that ... the applicant ... will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought ... then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
138. The legislation does not prescribe what the Full Court in Zschokke at 83,218 described as “preconditions” and nor would we seek to exhaustively prescribe matters that may be relevant to take into account in the exercise of the discretion under s 80(1)(h) of the Act. As to the three “criteria” identified by the Full Court in Zschokke, we accept that an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his or her litigation costs would be a relevant matter to take into account at the procedural or first stage. Senior counsel for the Wife submitted that it may be relevant at the substantive or second phase in reviewing the “necessarily limited and impressionistic budget for costs” to ensure that the application is bona fide. We are of the view that it may be that any issue about the bona fides of an application is relevant at the procedural phase in the context of considering if in the interests of justice it is appropriate to make an order before the final hearing.
139. We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
140. As to the other matters being a position of relative financial strength on the part of the respondent to an application and the capacity of the respondent to meet his or her own litigation costs, there is no doubt that the financial circumstances of both parties are relevant at the substantive stage and may also be relevant at the procedural stage. Senior counsel for the Wife submitted that all of the matters discussed by the Full Court in Zschokke are self-evident and we accept that this is so in relation to at least two of the matters being the need for funds and the financial circumstances of both parties.
141. As to the various matters discussed by Brereton J in Paris King Investments which we have discussed above, we do not propose to deal with all of what his Honour said, however we make the following observations about some of the matters. Obviously the applicant should have “at least an arguable case for substantive relief which deserves to be heard”. Further, in determining at the procedural stage whether to exercise the jurisdiction there may need to be evidence of the applicant’s “likely costs of the litigation” given that the need for funds to defray litigation costs and expenses is the circumstance propounded as to why it is appropriate that an order be made. We also accept that “it is not an essential precondition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.
39. It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said:
As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.
40. In Strahan (supra), the Full Court said at [132]:
… regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
As to the parties’ property pool, the Court refers to Exhibit C, being the parties’ balance sheet filed with the Court on 6 December 2019. The home, the main asset of the parties, is stated to be valued at $1.45 million with a mortgage debt of about $137,000. Exhibit D, a letter from a real estate agent, states that following storm damage recently the current value is in the vicinity of $1.35 million. Accordingly, on one view, the net value of the property presently is about $1.213 million.
The other main asset in the property pool is the husband’s superannuation entitlements, which according to exhibit C, are about $546,315. Exhibit B suggests that this figure could increase following the husband reaching 55 years of age. The Court observes that it would appear that the husband’s superannuation entitlements were growing during the parties’ relationship from 2004 until separation in March 2019.
Based on the material before the Court, there is a significant suggestion that each party made significant contributions towards the parties’ existing assets, whilst observing that the wife arguably made a particularly significant contribution through her bringing into the relationship the unencumbered Suburb D property and from which, following its sale, the net proceeds were applied towards the purchase of the home.
The husband seeks as final property adjustment orders the sale of the home and a payment of $400,000 to the husband from the net proceeds of sale, with the balance of net proceeds of sale to be paid to the wife.
The wife seeks as final property adjustment orders the sale of the home and a payment of $100,000 to the husband from the net proceeds of sale, with the balance of net proceeds of sale to paid to the wife. It is the wife who seeks interim property provision of $100,000 to each of the parties.
The Court would assess that should an interim property provision be made to each party of $100,000 from the net proceeds of sale of the home there should be no prejudice to either party’s proposed final orders for property settlement.
Again, there is a significant suggestion, on the material before the court, that the wife cannot presently afford to rent premises should the home not be sold and she not obtain interim property provision as sought by her.
The Court is of the view that it will be proper, appropriate and in the interests of justice that there be interim property provision to each party of $100,000 from the net proceeds of sale of the home.
Accordingly, the Court makes the following Orders:
The Court makes the following orders from the husband’s Response filed 29 October 2019 under the heading “Final Orders Sought”:
(a)The Court makes order 2, order 2.1, 2.2, 2.3.
(b)The Court makes Order 2.4 and which is amended so that it reads as follows: “An amount of $100,000 each to the respondent and the applicant.”
(c)The Court makes the following amended order 2.5: “The balance thereafter to be paid into an interest-bearing account in the joint names of the parties.”
(d)The Court makes order 3 in the husband’s Response, including sub-clause orders 3.1 to 3.9, inclusive.
(e)The Court amends order 2 so that it reads as stated, but changing the reference to Order 4 to Order 3.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 16 June 2020
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