Palmer and Palmer

[2012] FamCA 409

FAMILY COURT OF AUSTRALIA

PALMER & PALMER [2012] FamCA 409

FAMILY LAW – PROPERTY – interim

Family Law Act 1975 (Cth)

APPLICANT: Ms Palmer

RESPONDENT: Mr Palmer

FILE NUMBER: SYC 1820 of 2012

DATE DELIVERED: 28 May 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 28 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Taylor & Scott

COUNSEL FOR THE RESPONDENT: Mr Siggins

SOLICITOR FOR THE RESPONDENT: Rachel Stubbs & Associates

Orders

NOTATION:

1. I note that there is an agreement the husband will continue to pay the current HCF Health Care insurance payments that are detailed in his financial statement sworn 21 May 2012.

PENDING FURTHER ORDER, IT IS ORDERED THAT:

1. The husband pay the wife the sum of $800 per week as spousal maintenance.

2. The husband shall pay, as and when they fall due, the following outgoings on the Suburb G property:

   3.1.All instalments on the principal, interest and charges due and owing pursuant to the Westpac Mortgage;

   3.2.Home and contents insurance for an amount recommended by the insurance company;

   3.3.All water and council rates.

3. The hearing of the property application between the parties be expedited.

4. The wife’s costs of today be reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1820 of 2012

Ms Palmer

Applicant

And

Mr Palmer

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The wife brings two applications, one is an application for spousal maintenance, she seeks an order in the sum of $800 per week.  She also brings an application for the sale of a motorhome and a distribution of the proceeds of the sale of that motorhome 70/30 by way of interim property.

2. The husband from his point of view seeks an application for the sale of the matrimonial home in which the wife is living.

3. Dealing first with the application for the sale of the motorhome, the husband says that as part of the suite of final orders that he is seeking, he wants to retain that motorhome. He says it came to him by way of an inheritance from his father. The husband’s general approach to the alteration of property on a final basis is that he would retain the motorhome and the adjustment for the wife’s claim against that asset would come from his government employee pension. An interim order for the sale of the motrohome would pre-empt the husband’s application. Accordingly, I am not going to make an order for the sale of the motorhome. 

4. In relation to the sale of the former matrimonial home, the husband submits that the wife would not be in the position which she is currently in if she had not reneged on an agreement between them. That agreement was that the husband assisted her in securing the exchange of contract in relation to a purchase, off the plan, of a unit at Suburb B which the wife will ultimately live in. I am told that the settlement of that contract can happen on the completion of the construction of the unit. The completion of the construction of the unit is scheduled for some time towards the end of 2012/early 2013.

5. There is undisputed evidence that the wife has had serious health problems. Her current general practitioner puts them at a life threatening level and warns that any forced sale of the wife’s current accommodation may create pressures that might have devastating consequences to the wife. That is a matter that I have to take into account and balance against the alleged reneging of the wife on the deal that the husband says that he had with her.

6. As partial antidote to that alleged reneging of the agreement, rather than ordering a sale of the matrimonial home at this stage, I will expedite the final property so that it might get a property hearing towards the end of this year to coincide with the completion of the construction of the Suburb B unit so that whatever happens, the wife can move from the matrimonial home to the Suburb B unit and that that unit can be sold at that point in time.

7. I consequently will not be ordering the sale of the matrimonial home.

8. In relation to the wife’s application for spousal maintenance, the onus is on the wife to establish a need and to establish that the husband has the capacity to pay.

9. In relation to need, the wife in her financial statement sets out expenses which total $990. I am not satisfied that anything that counsel for the husband has pointed to would reduce those reasonable expenses below the amount claimed of $800 per week and consequently I find the wife has established a current need to receive the amount of $800 per week.

10. The husband in his financial statement sets out what his current income is and what his current expenses are. His expenses include payments of mortgage and some outgoings on the matrimonial home. His income and expenses are line ball. There are however a number of items of expenses that he claims which cannot take priority over his responsibility to maintain his wife. He is paying $270 per week for the children of his new partner and he is paying $198 towards his new partner’s expenses. Whilst I acknowledge he is receiving some benefits from her in terms of accommodation, she is a person who is in employment and is in receipt of $835 per week. The amounts in those two columns in Part N total $468 per week. Counsel for the husband conceded that the claim for $155 per week in relation to motor vehicle registration was an error and I am left to guess at what the correct weekly figure would be but there is a substantial reduction to be made to that claim of $155 as a weekly expense.

11. There was a further concession that $500 per week by way of credit card payments cannot be maintained in light of the balances of the credit cards that are set out at item 51 on the husband’s financial statement.

12. Taking those expenses out of what the husband is claiming as his total expenses, gives sufficient monies in my view for the husband to be able to make a payment in accordance with the need that has been established by the wife. He was making a significant payment towards the wife’s upkeep until she, in his view, reneged on a deal that they had in relation to the sale of the matrimonial home and the purchase of the Suburb B unit.

13. Accordingly, I find that the wife has established her claim for periodic spousal maintenance on an interim basis. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 28 May 2012.

Associate:   

Date:  31.5.2012