PARSONS & KIDSON

[2015] FamCA 1238

FAMILY COURT OF AUSTRALIA

PARSONS & KIDSON [2015] FamCA 1238

FAMILY LAW – PROPERTY – INTERIM – Where the matter has been before the Court on an interim basis on a number of occasions – Where the wife seeks the sale of a property, the payment of $300,000 to each of the parties and the balance paid into a controlled moneys account – Where the husband opposes the sale of the property – Where the husband has been out of paid employment since February – Where the matter is nearing the allocation of trial dates – Order made permitting the wife to draw down the sum of $200,000 against the facility secured on a property owned by the parties by way of interim property settlement – Order made permitting the husband to draw on that same facility to meet obligations pursuant to earlier orders made by this Court.

Family Law Act 1975 (Cth)

Harris and Harris (1993) FLC 92-378 Strahan and Strahan (Interim Property Orders) (2011) FLC 93-466
APPLICANT:	Mr Parsons

RESPONDENT: Ms Kidson

FILE NUMBER: SYC 2838 of 2014

DATE DELIVERED: 9 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 9 December 2015

REPRESENTATION

COUNSEL FOR APPLICANT: Mr Campton SC

SOLICITOR FOR APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Williams

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

Orders

1. The parties sign all documents and do all things to allow the wife as soon as practicable to draw down the sum of $200,000 from her NAB line of credit account secured on the property at Suburb C in the State of New South Wales, that drawing is noted to be by way of interim property settlement.

2. The parties sign all documents and do all things to permit the drawing on that same facility by the husband to meet his obligations pursuant to Order 5, Order 7 and Order 8 of the Orders made by this Court on 31 October 2014.

3. As soon as practicable after securing an offer of paid employment the husband notify the solicitor for the wife of the terms of that offer.

4. Leave is granted to the parties to restore the proceedings to the list on giving seven days’ notice to the Court and to each other.

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

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC2838 of 2014

Mr Parsons

Applicant

And

Ms Kidson

Respondent

REASONS FOR JUDGMENT

1. The matter has been to court on a number of occasions.  Watts J made orders a bit over a year ago for interim financial support.  He made orders in relation to spousal maintenance.  He made orders in relation to – that is $1,000 a week, the husband paying outgoings on two properties, C property and M property, and payment of the mortgages and rates and other outgoings, and that in addition to any periodic sum, he pay by way of child support, school fees and extracurricular things and private health expenses.

2. His Honour noted that there was a net pool on the parties’ arguments of between $4.27 million and $5 million; that the husband was on an income of $660,000; that the wife at that time had little or no earning capacity.  There have been enforcement proceedings since.  Ultimately I think they were settled.  Austin J had a matter perhaps in November, and the matter has been put over to today’s date in relation to an Application by the wife in relation to the sale of one of the properties and the disbursement of funds.

3. The wife is seeking that on the sale of the property, there be a payment of $300,000 to each of the parties and the balance paid into a controlled moneys account.

4. The husband opposes the sale of the property.  He says that he wants to retain it and that he can retain it.  There are some doubts in relation to both parties’ proposals – the wife’s plan to retain the M property and the husband’s to retain the C property.  I do not follow the logic of it.  It certainly depends on the husband returning to paid employment in circumstances where he has been out of paid employment since February this year.  He says he has been diligent in seeking a return to paid employment but he has yet to be able to.  Unless there is something very significant we have not been told about his partner’s financial resources, it is not apparent how he would be able to afford to retain the C property.

5. Some respect has to be paid to a wish for a party to retain a property on final settlement.   There is a decision of Harris and Harris (1993) FLC 92-378 whereby the Court sensibly would not make an order on an interim basis that cannot be undone on a final basis. The law in relation to interim property distributions is found in Strahan and Strahan (Interim Property Orders) (2011) FLC 93-466 and related cases, and it is almost that the Court can do anything but needs to be conservative about it so that it does not trample on the ultimate exercise of power. The exercise of power is undertaken pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).

6. For the time being, as I said to the parties, I am inclined to preserve the husband’s case, that he wants to retain the C property.  That might not be ultimately possible.  Obviously, the circumstances will give way to necessity.  If, for example, a bank moves on a property, then to avoid a mortgagee sale, the Court would step in, for example.  I do not say that it is likely here. 

7. The husband wants – his obligations under the orders made by the trial judge, although he neglected the obligation in relation to the wife’s spousal support, he wanted those things to be met out of the facility secured over one of the properties.  He opposed the wife receiving an interim property settlement, particularly if it was to be against the C property, because he was concerned:

   (a)that she did not have a basis for claiming that interest, and

   (b)he was concerned that it might bring about the situation that she wanted at first instance originally before his Honour, and that is the sale of the C property. 

8. For reasons that are not adequately explained in the evidence, the husband did not comply with all of the orders made by his Honour.  There may be an explanation for some things but such explanation is not found entirely in the husband’s affidavit.  Minds differ about how that might be dealt with.  Often parties are not allowed to take another step in proceedings if they are out of step with the current orders.  There has been belated compliance with some of the orders.  There is still an argument about moneys outstanding.  I do not have the evidence to make a determination about that. 

9. I would have thought if it is agreed that the husband is in arrears by an amount, then at least he should pay that amount.  In the meantime, I think the answer is the one that I proposed to the parties, which neither of them were terribly thrilled about, and that is that orders be made allowing the wife to draw $200,000 on the facility secured on the C property, and that would be by way of interim costs, and so that is her property settlement.  She has indicated that she wants to apply $130,000 odd of that if necessary to her legal fees, and she wants some margin against problems, and there have been problems because she had to take up some of the obligations the husband had under the orders of October last year.  So that might happen again.  But she has got a reason.  It is a proper reason, a sensible reason.

10. The husband wanted his obligations to be drawn against a facility – I have indicated to the parties that I will allow that – against the facility again on the C property.  There is sufficient room in the facility for – to take the matter – I think I calculated something like 17 months – 23 months.  The matter is very close to being allocated a trial date.  Whatever happens, it will not be take longer than 23 months. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 9 December 2015.

Associate: 

Date:  14 October 2016