Pawson & Saetang

Case [2021] FedCFamC1F 249

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Pawson & Saetang [2021] FedCFamC1F 249   

File number(s): SYC 4040 of 2021
Judgment of: CHRISTIE J
Date of judgment: 2 December 2021
Catchwords:

FAMILY LAW – INTERIM PROPERTY – COSTS – DISCHARGE SPOUSE MAINTENANCE – level playing field

FAMILY LAW – INTERIM PARENTING – RELIGIOUS AND CULTURAL HOLIDAYS – best interests of the child   
Legislation:

Family Law Act 1975 (Cth) ss 62B, 65DA(2), 90SF(3), 90SI, 90SM, 90SS(1)(h),117,117(2), 117(2A)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 7.06

Cases cited:  Strahan and Strahan (2011) FLC 93, Osferatu & Osferatu [2012] FamCA, Tallant & Tallant (2017) FLC 93-789
Division: Division 1 First Instance
Number of paragraphs: 63
Date of hearing: 30 November 2021
Place: Sydney
Counsel for the Applicant: Mr G Johnston
Solicitor for the Applicant: Sexton Family Law
Counsel for the Respondent: Ms A Murphy
Solicitor for the Respondent: Atkinson Vinden
Solicitor for the Independent Children's Lawyer: Medcalf Grant Lawyers

ORDERS

SYC 4040 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR PAWSON

Applicant
AND:

MS SAETANG

Respondent
AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

2 DECEMBER 2021

THE COURT ORDERS:

1.That within 14 days of the date hereof the husband’s lawyers prepare a draft letter of instruction for the appointment of a single expert forensic accountant (“the single expert”) to value the husband’s interest in the entities known as:

(a)B Pty Ltd Super Fund

(b)Pawson Family Trust

(c)D Unit Trust

(d)E1 Pty Ltd

(e)E2 Unit Trust

(f)F Unit Trust

(g)H Unit Trust

(h)J Unit Trust

(i)L Unit Trust

(j)M Unit Trust

(k)N Unit Trust

(l)O Pty Ltd

(m)P Family Trust

(n)Q Partnership

(o)T Company

(p)U Pty Ltd

2.That simultaneously with Order 1 the husband’s lawyers provide to the wife’s lawyers the names of three proposed experts together with the CV of each, their estimated fees and their availability to prepare a valuation report.

3.That within a further 14 days, that the wife’s solicitors provide any amendments to the proposed joint letter to the single expert and the wife shall nominate one such expert who shall thereupon become the single expert.

4.That the single expert’s costs be borne equally by the parties save that in accordance with Rule 7.06, the husband be responsible for the fees and expenses of the single expert in the first instance with the wife to reimburse him within 28 days of the making of a final order in the proceedings

5.That by 15 January 2022 the parties shall exchange market appraisals of the following properties:

(a)   V Street, Suburb W, NSW;

(b)   BB Street, Suburb CC, NSW;

(c)   DD Street, Suburb EE, NSW;

(d)   FF Street, Suburb GG, NSW;

(e)   HH Street, Suburb JJ;

(f)    KK Street, Suburb W, NSW; and

(g)   MM Street, Suburb LL, NSW

6.In the event that the parties do not agree on the value of any of the properties in accordance with the orders herein, then the parties are…

Continue reading Pawson & Saetang

Sign in free to access the full text

Details
AGLC
Pawson & Saetang [2021] FedCFamC1F 249
Case
[2021] FedCFamC1F 249
Decision Date

CaseChat Overview and Summary

In the case of Pawson & Saetang, the parties were involved in a dispute concerning interim parenting and financial matters following their separation in May 2020. The only remaining parenting issue was the allocation of special cultural/religious holidays for the children, while consent orders had been reached on other matters. The wife sought interim financial orders, including the discharge of a spouse maintenance order, payment of $250,000 for litigation funding, and valuation of real estate and business interests. The husband opposed the litigation funding order and agreed to valuation of business interests with some preliminary steps.

The court was required to decide whether to discharge the spouse maintenance order and make an order for litigation funding. The court considered the specific matters outlined in section 117(2A) of the Family Law Act 1975, which includes the parties' respective financial positions and any other relevant matters. The wife's evidence suggested that failure to make a costs order would not leave her unrepresented, and the court was not satisfied that this constituted justifying circumstances for the litigation funding order.

The court concluded that it was necessary to understand the parties' respective positions in the litigation more broadly before determining the appropriateness of an interim payment to the wife. The court noted the husband's evidence that he and the wife had an agreement after separation, such that she would receive the proceeds of sale of a property at TT Street Suburb VV. The wife had applied $580,000 of the net proceeds of $853,000 to purchase a property at DD St Suburb EE, which the husband considered a just and equitable property settlement.

The court determined that the outstanding issue concerning the time the children were to spend with each parent at Easter and Lunar New Year fell to be determined as all interim parenting issues do, having regard to the best interests principle and considering the relevant uncontested facts. The court did not make an order for litigation funding or discharge the spouse maintenance order, and the matter was left pending further orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The children are independently represented in the proceedings.BACKGROUND The parties commenced a relationship in 2013 and separated on 14 May 2020.ISSUESPARENTING ISSUES By the time of the interim hearing the only interim parenting issue remaining between the parties related to special cultural/religious holidays. Otherwise, the parties and Independent Children’s Lawyer (“ICL”) submitted consent orders.FINANCIAL ISSUES Each party seeks interim financial orders from the court. The husband seeks to discharge the consent order made 6 July 2021 that requires him to pay the wife $650 per week. The wife seeks an order that the husband pay her $250,000 for “litigation funding”. Her application refers to such an order being made pursuant to section 117(2) of the Family Law Act 1975 (“the Act”). It also inconsistently suggests that the payment may be characterised by the trial judge. Her written submissions raised an alternate basis for the making of the order, namely interim property settlement. The husband opposes the litigation funding order. He contends that the sum may represent more than the wife’s property entitlements. The wife seeks orders for valuation of real estate and business interests. The husband accepts that the real estate may require valuation but asks that the parties undertake a preliminary step of exchanging market appraisals with a view to agreement and failing agreement, proceed to formal valuation. The husband initially resisted orders for the valuation of business interests (trusts, shares in private companies) but at the interim hearing provided a Minute of Order with which the wife in substance agreed. The parties’ assets and liabilities are identifiable but various matters of valuation remain outstanding. Set out below is a schedule of the parties’ assets, liabilities, financial resources and superannuation drawn from their evidence. It emerged in submissions that the wife raises as an issue in the proceedings the following queries:(a)Does the husband hold ¾ of the equity in FF Street, Suburb GG on trust for the children?(b)Do the children legitimately hold the units in the F Unit Trust or is the husband the real owner of those units?(c)Is the loan the husband sets out in his affidavit to RR Pty Ltd a legitimate debt owed to that company or to the estate of his mother or otherwise?(d)Is the husband’s representation that he is not a beneficiary of the estate of his mother accurate? None of the above issues fall to be determined at this interim hearing. It should also be said that nothing in the wife’s evidence or in the submissions made pointed to any basis upon which the Court could conclude that the wife’s concerns are justified. Through her lawyers, the wife says these issues are part of the complexity of the financial picture which she wishes to investigate. It may be that the valuation process will assist the parties to resolve those issues.LEGAL PRINCIPLESDischarge of spouse maintenance order In submissions, counsel who appeared on behalf of the husband argued that Order 35 of the 6 July 2021 orders made by Senior Registrar McGrath, may not be a spouse maintenance order. When asked under what power the Court had made the order, counsel indicated it may be a spouse maintenance order, but may also fall to be classified (by the trial judge) at a later time, as either a spouse maintenance order or a property order.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The only outstanding issue on an interim basis concerned the time the children were to spend with each parent at Easter and Lunar New Year. Notwithstanding the limited scope of the issue, it still falls to be determined as all interim parenting issues do, having regard to the best interests principle and with a consideration of the relevant uncontested facts. CONSIDERATIONLump sum legal fees The wife sought an order for payment of $250,000 characterised as legal costs. In order to make an order pursuant to s 117(2A) of the Act, I would need to be satisfied that there are justifying circumstances to depart from the usual rule namely that each party pay his or her own costs. Section 117(2A) sets out specific matters for consideration; it is important when making an order for payment of monies under this section to be able to address any relevant matters. No submissions were made about matters under s117(2A) except as regards the parties’ respective financial positions. There can be little issue that the husband is in a stronger financial position. In some cases that may be sufficient to amount to justifying circumstances. However, in this instance I am not satisfied that this is sufficient. This is particularly the case because the mother’s evidence suggests that failure to make a costs order will not result in her being unrepresented. The solicitors for the mother have agreed to be paid at the conclusion of the matter. That is not the end of the inquiry. In the alternative the wife seeks that she receive monies she intends to apply to her legal fees by way of interim or partial property settlement. She points to the property owned jointly by the parties at BB St, Suburb CC (“the Suburb CC property”) as being an appropriate source of such funds. The parties purchased the Suburb CC property on 24 July 2020 for $430,000. In order to settle the purchase they borrowed the sum of $344,000. At present the parties estimate the Suburb CC property is valued between $450,000 and $500,000. It has a current mortgage liability of $340,390. That mortgage is secured against V St Suburb W (“the Suburb W property”). Both parties seek sale of the Suburb CC property. The wife seeks, after deduction of costs of sale, payment to her of $250,000 with the balance to be applied to the Suburb W mortgage. While not plain from his Minute of Order, the husband’s evidence suggests he seeks discharge of the Suburb W mortgage, payment of a loan of $50,000 to his brother and he is silent as to the surplus or shortfall. Before determining the appropriateness or otherwise of an interim payment to the wife it is necessary to understand the parties’ respective positions in the litigation more broadly. The husband for his part says that the he and the wife had an agreement after separation such that she would receive the proceeds of sale of a property at TT Street Suburb VV (“the Suburb VV property”). The Suburb VV property sold in April 2020 and the net proceeds of $853,000 were paid to the wife. She applied $580,000 out of the $853,000 to purchase a property at DD St Suburb EE (“the Suburb EE property”). The husband says those funds (or such of those funds as the wife retains) represent a just and equitable property settlement.