Poulos and Poulos - [2016] FamCA 800

FAMILY COURT OF AUSTRALIA

POULOS & POULOS

[2016] FamCA 800

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife seeks periodic spousal maintenance for rent and living expenses – Where the husband concedes that the wife is unable to support herself adequately for the purposes of section 72 – Extent to which the wife is unable to support herself – Reasonable needs of the wife – Where the wife is to vacate the former matrimonial home – Whether it is reasonable for the wife to seek pet-friendly rental accommodation – Extent of the capacity of the husband to meet such an order – Where the husband is able to drawn down on capital – Consideration of section 75(2) factors – Orders made as sought by the wife.

Family Law Act 1975 (Cth) ss 72, 75(2)

Drysdale & Drysdale [2011] FamCAFC 85
Hall & Hall (2016) 332 ALR 1
Maroney & Maroney [2009] FamCAFC 45

APPLICANT:

Ms Poulos

RESPONDENT:

Mr Poulos

FILE NUMBER:

SYC

4886

2016

DATE DELIVERED:

21 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

12 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney SC

SOLICITOR FOR THE APPLICANT:

Dimocks Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Giocomo

SOLICITOR FOR THE RESPONDENT:

D R Farrell & Co

Orders

The Court orders by consent and pending further order that:

The husband shall:
(a)Pay all amounts and do all things necessary to ensure that the current health insurance policy in respect of the wife is continued and that any and all payments made pursuant to that policy in respect of expenditure by the wife are paid to her forthwith upon receipt by the husband;
(b)Meet as and when the same fall due, all registration expenses, compulsory third party insurance and comprehensive insurance premiums in respect of the German motor vehicle registration number … (“the wife’s car”);
(c)Do all things necessary to ensure that the wife has sole and unrestricted use of the wife’s car.
By way of partial property settlement, the husband shall forthwith do all things and sign all documents necessary to pay to the wife the sum of $250 000 and pending such payment the husband shall be and hereby is restrained from operating upon the St George Offset account in his name save and for the purpose of effecting such payment.
Within seven (7) days of the wife notifying the husband that she has identified rental premises into which she intends to move, the husband shall retain and pay the costs of removalists (and associated insurance) for the purpose of moving her belongings from the Northern Queensland Suburb B property and upon the wife vacating the Suburb C property, the husband shall have exclusive occupation of the same pending further order.
Upon the wife securing rental accommodation:
(a) The wife shall be entitled to remove from the Suburb C property:
(i)Her personal effects;
(ii)Her computer;
(iii)The drafting desk and chair, treadmill, brass rubbing, two ottomans, two pot plants…

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.

Continue reading Poulos and Poulos

Details

AGLC: Poulos and Poulos [2016] FamCA 800
Case: [2016] FamCA 800
Decision Date: 21 September 2016

CaseChat Overview and Summary

In *Poulos and Poulos*, McClelland J of the Court made orders by consent between the husband and wife, pending further order. The dispute concerned interim arrangements for property settlement, spousal maintenance, and the use and occupation of properties and assets during divorce proceedings.

The court was required to determine the terms of interim orders concerning the husband's financial obligations towards the wife, including the continuation of health insurance, payment of expenses for the wife's car, and the provision of sole and unrestricted use of that vehicle. Further issues included the husband's obligation to pay a sum of $250,000 to the wife as partial property settlement, and the arrangements for the wife's relocation from a property, including the costs of removalists and the husband's exclusive occupation of that property thereafter. The court also needed to address the wife's entitlement to remove specific personal effects and furnishings from two properties, with the ultimate division of contents reserved for trial, and the husband's responsibility for all expenses relating to both properties. Finally, the court had to determine the quantum of weekly spousal maintenance payable by the husband to the wife and a lump sum payment for a rental bond.

The court's reasoning was based on the consent of the parties, leading to orders that sought to provide for the wife's immediate financial needs and living arrangements while preserving the ultimate determination of property entitlements for trial. The orders reflect a practical approach to interim financial relief and property division, ensuring the wife's access to essential services and a place to live, while also securing the husband's ability to occupy one of the family homes. The husband was ordered to pay all amounts necessary to maintain the wife's health insurance and meet all registration and insurance expenses for her car, granting her exclusive use of it. He was also restrained from operating a specific bank account except to pay the wife $250,000 as partial property settlement. The husband was to cover removal costs for the wife's move and would have exclusive occupation of the Suburb C property once she vacated. The wife was permitted to remove specified personal items and furnishings, with the division of remaining contents to be decided at trial. The husband was to meet all expenses for both properties, including mortgage repayments, rates, utilities, and insurance, and was to pay the wife $2,000 per week in spousal maintenance, along with a lump sum for a rental bond.

Orders

Orders of the court

The Court orders by consent and pending further order that:

The husband shall:

(a) Pay all amounts and do all things necessary to ensure that the current health insurance policy in respect of the wife is continued and that any and all payments made pursuant to that policy in respect of expenditure by the wife are paid to her forthwith upon receipt by the husband;

(b) Meet as and when the same fall due, all registration expenses, compulsory third party insurance and comprehensive insurance premiums in respect of the German motor vehicle registration number … (“the wife’s car”);

By way of partial property settlement, the husband shall forthwith do all things and sign all documents necessary to pay to the wife the sum of $250 000 and pending such payment the husband shall be and hereby is restrained from operating upon the St George Offset account in his name save and for the purpose of effecting such payment.

Within seven (7) days of the wife notifying the husband that she has identified rental premises into which she intends to move, the husband shall retain and pay the costs of removalists (and associated insurance) for the purpose of moving her belongings from the Northern Queensland Suburb B property and upon the wife vacating the Suburb C property, the husband shall have exclusive occupation of the same pending further order.

Upon the wife securing rental accommodation:

(a) The wife shall be entitled to remove from the Suburb C property:

(i) Her personal effects;

(ii) Her computer;

(iii) The drafting desk and chair, treadmill, brass rubbing, two ottomans, two pot plants from the side of the house; and

(iv) The contents of the terrace off her bedroom (pot plants and furniture).

(b) The wife be entitled to remove from the Suburb B property such items as she requires to furnish her new premises provided the wife shall simultaneously provide to the husband a list of the items removed

and the issue as to the parties’ ultimate entitlements to the contents of the Suburb C and Suburb B properties be reserved to trial.

Pending further order, the husband shall meet as and when the same fall due all expenses in relation to each of the properties known as and situate at:

(a) Suburb C Road, Suburb C; and

(b) D Street, Suburb B (also known as Property A);

including but not limited to all mortgage repayments, statutory rates and charges, land tax, utilities and insurances (with the husband to maintain at all times home and building insurance), and the husband shall indemnify the wife and keep her indemnified in respect of the same.

The Court orders pending further order that:

The husband shall pay to the wife by way of spousal maintenance, the sum of $2000 per week, with the first payment to be made by close of business on 23 September 2016 and weekly thereafter.

Within seven (7) days of the wife notifying the husband that she has identified rental premises into which she intends to move, and providing the husband with details of the rental bond she is required to pay for that rental accommodation, the husband is to pay to the wife a lump sum payment of not more than $4980 in respect to that rental bond.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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