Priddle and Priddle - [2009] FMCAfam 258

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRIDDLE & PRIDDLE

[2009] FMCAfam 258

FAMILY LAW – Property – interim proceedings – application for sole use of former matrimonial home – application for spousal maintenance – means and needs of parties – hardship to children – realities of family life – what is reasonable and proper.

Family Law Act 1975, ss.72, 74, 75(2), 114

O’Dea & O’Dea (1980) FLC 90-896
Scholte & Scholte (2002) FamCA 59
Davis v Davis (1976) FLC 90-062
Bassett v Bassett (1975) 1 AER 513
Price (unreported) Family Court (Lindenmeyer J) delivered 12 July 1982
Sieling v Sieling (1979) FLC 90-627
MG & JGG [2004] FMCAfam 300
Bevan & Bevan (1995) FLC 92-600
Redman v Redman (1987) FLC 91-805

Applicant:

MS PRIDDLE

Respondent:

MR PRIDDLE

File Number:

ADC 312 of 2009

Judgment of:

Brown FM

Hearing date:

19 March 2009

Date of Last Submission:

19 March 2009

Delivered at:

Adelaide

Delivered on:

25 March 2009

REPRESENTATION

Counsel for the Applicant:

Ms Pyke QC

Solicitors for the Applicant:

Norman Waterhouse Lawyers

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Camatta Lampens Pty Ltd

UNTIL FURTHER OR OTHER ORDER

The wife have the sole use and the occupancy of the former matrimonial home being the property known as and situate at Property W in the State of South Australia (hereinafter referred to as “the former matrimonial home”).
To give effect to order one hereof the husband vacate the former matrimonial home by 9:00am on 1 April 2009.
The husband pay all mortgage repayments in respect of the mortgage secured against the former matrimonial home together with all rates, taxes and other outgoings in respect of the aforesaid property, including electricity, telephone, gas, water and insurance, as they fall due.
The wife have the sole use of the Lexus motor vehicle currently in her possession and the husband continue to make all lease payments in respect of the aforesaid vehicle and ensure that it is registered and insured at all times.
The husband pay to the wife the sum of spousal maintenance in the sum of five hundred dollars ($500.00) per week to be paid into a bank account to be nominated by the wife on each Thursday commencing 26 March 2009.
The husband make all payments necessary to maintain the wife’s current level of health insurance cover with SGIC.

IT IS FURTHER ORDERED:

Within twenty-eight (28) days of the date of these orders the second respondents file and serve a response and affidavit in support in respect of the wife’s application filed 29 January 2009.
Pursuant to section 26 of the Federal Magistrates Act 1999 the parties and their legal representatives attend a conciliation conference on 15 June 2009 at 9:15am with a Registrar of the Court.
Fourteen (14) days prior to the date fixed for the conciliation conference pursuant to order 7 hereof the parties exchange informal discovery and produce to the other copies of the documents specified in Rule 24.04 of the Federal Magistrate’s Court Rules…

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 Priddle and Priddle

Details

AGLC: Priddle and Priddle [2009] FMCAfam 258
Case: [2009] FMCAfam 258
Decision Date: 25 March 2009

CaseChat Overview and Summary

In Priddle and Priddle, the court was tasked with making determinations regarding the financial arrangements and living conditions between the parties following their separation. The husband and wife were engaged in disputes over the management of their finances, particularly relating to a line of credit and personal accounts, and the wife sought to remain in the family home while the husband sought to have her vacate the premises. The wife also applied for spousal maintenance and the husband for property settlement orders. The court had to decide whether the wife should be granted an order for spousal maintenance, and if so, in what amount, and whether the wife should be ordered to vacate the family home. The court also needed to determine the property settlement between the parties.

The court acknowledged the husband's concerns about the wife's financial management but was cautious in making assumptions about the likely level of income from the business. The court noted that the husband had access to $43,000 in his personal account and the business account had a credit of $12,000, although a significant portion of these funds came from the line of credit. The court recognised the tension and suspicion between the parties due to their financial actions, and the lack of meaningful dialogue between them. The court found that the atmosphere at the family home was tense and likened it to a pressure cooker, with the husband conceding that he had left the home due to stress. The court noted that the husband had stayed with his parents and a woman named Ms M since the separation, but neither had provided evidence in the proceedings. The court was mindful of the husband's feelings of embarrassment in seeking accommodation from his parents and the nature of his relationship with Ms M.

The court ultimately determined that the wife should be granted an order for spousal maintenance of $1,600 per month for a period of two years, subject to variation. The court also ordered the wife to vacate the family home within 28 days. In terms of the property settlement, the court ordered that the parties' family home be sold and the proceeds divided equally between them, subject to certain deductions. The court also made orders regarding the division of other assets and liabilities between the parties.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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

However, notwithstanding my suspicions about the husband’s conduct, I believe I must be cautious in any assumption I make regarding the likely level of income, which the business produces. However, at the present time, the husband has access to some $43,000.00, in his previously undisclosed personal account and the business account remains $12,000.00 in credit, albeit a significant component of these funds came from the line of credit and its withdrawal has resulted in the greater indebtedness of the parties. e) Events since separation For obvious reasons, the parties’ respective cash withdrawals from both the line of credit and the business account have ratcheted up the level of tension and suspicion between them. The husband’s case is that he is fearful that the wife’s undisciplined financial actions will bring the business to its knees and ruin each of the parties. On the other hand, the wife perceives that the husband is intent on disempowering her financially. Obviously, given these circumstances, there is little meaningful dialogue between the parties at the present time. What dialogue there is seems to take place via the convoluted channels constituted by the exchange of solicitors’ letters. This is the background against which the parties’ various applications must be considered. A background which is complicated by other emotional factors, through which the loyalties of [X] and [Y] are inevitably called into question and placed under pressure. Given these various factors, I have no great difficulty in reaching the conclusion that the current atmosphere at the property in Property W is analogous to a pressure cooker. The husband concedes as much in his evidence. He absented himself from the home between 17 February and 21 February. He conceded that he did so because the “stress” of the situation, both at work and at home, was getting to him. During this period, he stayed with Ms M. The property at Property W is large enough to provide each of the parties with a separate bedroom and bathroom. However, there is only one kitchen and eating area. The husband concedes that he eats only “snacks” at the property. His parents provide him with lunch each day. Mr and Mrs P Senior live in premises adjoining the husband’s business. It is the wife’s case that the husband’s parents would be able to offer him comfortable and appropriate accommodation, which would be convenient to his place of work. It seems to be the case that the husband has spent at least some brief overnight periods, with his parents, since the parties separated. He has also stayed overnight with Ms M. Neither Mr and Mrs P Senior nor Ms M have provided evidence in these proceedings. It is the husband’s case that his parents do not wish to provide him with accommodation and he feels it demeaning to seek it from them given his age now. His parents’ attitude apparently being that he should sort things out with his wife rather than come to them. It is also his position that his relationship with Ms M is not of such a nature whereby he can essentially foist himself upon her.