PALLAS & PALLAS - [2014] FamCA 83

FAMILY COURT OF AUSTRALIA

PALLAS & PALLAS

[2014] FamCA 83

FAMILY LAW - INTERIM PROCEEDINGS – Interim property settlement – Where two categories of payments are sought – Where the parties agree that a small interim distribution should be made to each of the parties – Where there is controversy in relation to two debts said to have been sourced in improvements or renovations to a property – Where the wife challenges whether the debts are payable – Where the wife has not received documentation supporting the debts owing – Where the court has the power to make an interim order, interim orders should not be orders that cannot be undone at the final settlement – Where the Trial Judge refuses to make an order for payment of the debts – Where the Trial Judge orders each of the parties be paid $5,000 by way of interim property settlement.

Family Law Act 1975 (Cth) ss 79 & 117

Harris v Harris (1993) FLC 92 – 378
Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166

APPLICANT:

Mr Pallas

RESPONDENT:

Ms Pallas

FILE NUMBER:

SYC

1157

2013

DATE DELIVERED:

10 February 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

10 February 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Paltos Briggs Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Bridger

SOLICITOR FOR THE RESPONDENT:

Jo-Anna F S Moy

Orders

Paltos Briggs Family Lawyers are authorised as the trustee of the Controlled Monies Account (CMA) to pay forthwith to the husband and the wife, or as they shall each direct, and by way of interim property the sum of $5,000 each from the monies held in the CMA.

Leave is granted to the parties to restore the proceedings to the list on giving 48 hours’ notice to the court and to each other.

The costs of the parties of and incidental to the proceedings today are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pallas & Pallas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1157 of 2013

Mr Pallas

Applicant

And

Ms Pallas

Respondent

REASONS FOR JUDGMENT

These are proceedings for an interim distribution from funds held in a controlled moneys account to await the outcome of property settlement proceedings. Two categories of payments are sought. There is an agreement about a small distribution to each of the parties. There is a controversy in relation to the discharge of two debts said to have arisen because of improvements or renovations to a property.
The husband says that $22,000 odd is owing to Business B, and $17,000 odd to Business C. As to one and perhaps both debts, the wife challenges whether the debts are payable. I gather that she also has a more general argument that the husband might have had access to funds previously from which those payments could…

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

AGLC: PALLAS & PALLAS [2014] FamCA 83
Case: [2014] FamCA 83
Decision Date

CaseChat Overview and Summary

This case concerned an application for interim property settlement in the Family Court of Australia. The parties, Mr and Ms Pallas, were engaged in property settlement proceedings. The dispute centred on two categories of payments sought from a controlled moneys account: a small agreed interim distribution to each party, and the discharge of two alleged debts arising from property improvements or renovations. Ms Pallas challenged the validity and payability of these debts, noting she had not received sufficient documentation to support them.

The primary legal issue before the court was whether to make an interim order for the payment of the disputed debts. The court considered its power to make interim orders under the *Family Law Act 1975* (Cth), particularly ss 79 and 117, and the principle that such orders should not be made if they cannot be undone at the final settlement. The court also had regard to the decision in *Strahan & Strahan* which indicated a broad approach to interim distributions, while still upholding the principle from *Harris v Harris* that interim orders must be reversible.

Justice Loughnan reasoned that while interim orders should generally be reversible, the potential for damage to the husband's reputation by the existence of an unsatisfied debt was a factor. However, the wife's challenge to the debts, including her assertion that the husband may have already had access to funds to pay them and her lack of supporting documentation, meant the court was not persuaded to order their payment at this interim stage. The judge noted that if the debts were genuine and the wife's concerns about prior access to funds were unfounded, she might ultimately be responsible for additional costs incurred by creditors. Consequently, the court refused to make an order for the payment of the debts.

The court ordered that each party receive $5,000 by way of interim property settlement from the controlled moneys account. Leave was granted to the parties to restore the proceedings to the list on 48 hours' notice. The costs of the proceedings were reserved.

Orders