Randall-Moss and Randall-Moss

[2007] FamCA 6

FAMILY COURT OF AUSTRALIA

RANDALL-MOSS & RANDALL-MOSS [2007] FamCA 6

FAMILY LAW - Interim Property - Use and Occupation Orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Randall-Moss

RESPONDENT: Mrs Randall-Moss

FILE NUMBER: MLF 1234 of 2006

DATE DELIVERED: 9 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 9 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wraith

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Mr Whitchurch

SOLICITOR FOR THE RESPONDENT: Wightons

Orders

1. THAT until further order:

   (a)the wife enjoy the use and occupation of the former matrimonial home situate at L (“the home”) until 28 January 2007, and then –

   (b)the husband enjoy the use and occupation of the home pending further order.

2. THAT the husband be responsible as and from 29 January 2007 for the payment of the ongoing mortgage debt, rates, taxes and household charges.

3. THAT on vacating the home by 28 January 2007 the wife use her best endeavours to leave the home in a tidy and reasonable state with all fixtures and fittings remaining in the home together with such items of furniture, chattels and belongings that she is unable to properly use or accommodate in her new rented premises or which belong to the husband.

4. THAT the husband forthwith sell the Ford Territory motor vehicle, to a work colleague or by other private sale or auction and use the entire proceeds of sale to discharge or reduce its liability and fully account to the wife.

5. THAT all questions of interim spousal maintenance be reserved.

6. THAT on or before 17 April 2007 the husband and wife each file and serve such further amended application or amended response as they are advised and particularise the ongoing financial and property orders sought.

7. THAT if the parties remain in dispute as to the value of the home then a single expert be appointed at their joint expense for the purposes of valuing the home as at Tuesday 1 May 2007 and such evidence be before the court in proper form.

8. THAT on or before Monday 30 April 2007 each of the husband and wife make, file and serve their trial affidavit and an update and detailed Form 13 financial statement.

9. THAT the parties disclose their up to date superannuation and other work related entitlements and benefits by inclusion in or an annexure to their affidavit of financial circumstances.

10. THAT the extempore reasons for judgment be transcribed, be placed upon the court file and be made available to both parties.

11. THAT paragraphs 1-7 (inclusive) of the orders of 6 July 2006 be suspended pending the further hearing of this matter on 14 May 2007.

12. THAT the extant applications sought in the Form 1 application filed 7 April 2006 and the Form 1A response filed 22 May 2006 (as to property and financial issues) be listed for hearing on 14 May 2007 before Young J as a defended hearing of up to three (3) days duration.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1234 of 2006

Mr Randall-Moss

Applicant

And

Mrs Randall-Moss

Respondent

REASONS FOR JUDGMENT

1. As to issues of interim property and financial orders, there are competing applications by each of the husband and wife before me for determination.  Most matters are in conflict.  There is no agreement on any valuation or other matter in dispute.  I have required both parties to file an up‑to‑date Form 13 financial statement and each of them filed that document on 5 January this year.

2. The wife is a qualified and experienced nurse working with a large Melbourne Hospital.  She lives in O, having recently relocated with the two children of the marriage from L.  Her average income is deposed to be $1,473 per week.  There are real issues as to her expenditure and certainly it would appear that she does not have the available $432 per week, as is evidence from page 2 of that document.

3. I have otherwise had regard to the list of her debts and the weekly expenditure which she maintains for herself and the children on pages 11 and 12 of that document.  Again there is an additional issue as to her expenditure, both on the mortgage, when applicable, or otherwise on rent.  I am not confident on the basis of that document and without viva voce evidence that I can properly understand the financial circumstances of the wife on a weekly or monthly basis. 

4. The husband is an executive with C.  His income is approximately $2,800 per week.  His evidence in that affidavit is to the effect that almost all of his income is spent on either salary sacrifice items, mortgages, child support or otherwise in payment of debt.  His document is drawn on the basis that his personal expenditure is only $200 per week.  Again I have a similar concern as to the accuracy of his level of expenditure. 

5. I touch on each of those financial statement as the background in determining current interim property and financial issues.  The wife does have before the court an application for spousal maintenance.  I am not able to determine that today because of the uncertainty of evidence as it currently stands, but also because of the actions that are needed to be taken in relation to the home at L and in respect of motor vehicles. 

6. There are a number of pressing issues in this case.  The first is that the wife was the primary resident of the former matrimonial home, post‑separation.  That property is at L.  The wife has now moved and is renting a property in O.  There have been efforts made to sell the property, by private treaty, but they have been wholly unsuccessful.  There is a significant mortgage debt encumbering the home.  There is some conflict between the parties but, as an overview, the wife has been contributing a sum of approximately $380 or thereabouts to the mortgage debt per week in lieu of a greater sum that was required.  There are now arrears.  The husband has been out of occupation of the home and still lives elsewhere.  He proposes to return to the home as it now vacant or soon will be vacant. 

7. I am not foreshadowing any final settlement of property.  The wife would have an immediate auction, but in reality that could not occur for 60 days or thereabouts.  The further alternative raised by the wife seems wholly inappropriate; that is, to rent the property.  That raises other significant issues, including wear, tear and depreciation of the property and the term of any lease.  I would regard the rental of the property as simply creating further financial issues for these parties to deal with. 

8. I would not contemplate permitting the rental of the property prior to any hearing of the settlement of property applications, which I could do in mid‑May of this year.  The wife will have until 28 January 2007 to wholly vacate the property.  Having listened to issues raised by counsel in submission, I specifically record in these minutes that the wife is to take from the home such furniture, chattels and items as she requires or as are hers and which are not of the sole ownership of the husband or from his family.  Specifically, items are not to be taken and stored or given to other people to use or to mind.

9. I am not making any order of property and chattel division, as I do not know all of the items, save that I have been advised there are solicitors' letters passing on these issues.  Both parties should deal with the other fairly and honourably on this matter.  Certainly all fixtures, light fittings, carpets, curtains, drapes are to remain, as they would on a normal conveyance.  The home should be left in a clean and tidy condition and what is reasonable in the circumstances. 

10. The home cannot remain vacant.  There is a significant mortgage to be paid.  The husband's proposal is that from the date he assumes occupancy on 29 January 2007 he will be responsible for the mortgage as and from that date together with apportioned rates, taxes, household charges and other outgoings.  Again I do not propose to make these as long‑term orders but merely to maintain a position pending the further hearing.  The husband's proposal is that he be permitted to buy the property, but I am not going to make that order.  That will be part of the issues for determination pursuant to section 79 of the act when next listed in this court. 

11. The motor vehicles are a real bone of contention.  The husband, through work and salary sacrifice, currently pays for two cars, a Holden Calais and a Ford Territory.   The combined payment on those cars is $3500 per calendar month, notwithstanding the somewhat advantageous tax arrangement.  The wife formerly had the use of the Ford Territory but that vehicle was given up by her or taken from her in or about April of 2006.  Thereafter she has used the car of a friend or an old vehicle recently purchased by her extended family. 

12. The Ford was at some point in time driven by the husband's current friend, but I am told now a work colleague is driving the car, from the point of view of purchasing same.  It is absolutely in the interests of the husband and wife to reduce debt.  I will permit the Ford motor vehicle to be sold forthwith either to the work colleague or by public auction. 

13. The husband has the motor vehicle debt in his name and, subject to any further order of the court by way of property adjustment, will likely be responsible for that debt.  Therefore whilst it is in the interest of both parties, it is clearly very much in his interest to get as good a deal as is possible on the sale of that Ford Territory motor vehicle.  It therefore follows that I will permit its sale immediately.

14. Spousal maintenance is a real issue in this case.  The husband's salary is substantially greater than the wife.  At this point in time and on the basis of the inadequate financial affidavits filed and pending the sale of the car and a better understanding of the financial basis of the ongoing occupation of the home, it is not practicable nor possible to make an interim spousal maintenance order.  Mr Whitchurch has, quite sensibly, not pushed the immediate issue because the wife sees that very much a part of property settlement will be an ongoing spousal maintenance order over a number of years.  That may or may not occur and it will depend upon the evidence before the court on the adjourned hearing date.

15. To the extent that the spousal maintenance order is part of an ongoing property settlement, I will not at this stage split off that aspect of the case to the Federal Magistrates Court.  If for any reason the matter is of such urgency that it has to be determined before May then the matter should not be brought before me or this court but on an interim hearing before the Federal Magistrates Court.  I would endeavour to dissuade the parties from that course of action. 

16. The present overview of this case that I hold, having heard submissions from both counsel, is that there are many debts.  Notwithstanding the considerable salary and the combined earning capacity of the husband and wife, they really have little equity in their assets.  That is not a criticism, it is merely an indication of the moneys they have spent on the children, the children's education and their day‑to‑day lifestyle and enjoyment. 

17. I propose to list on property matters and ongoing spousal maintenance, if appropriate, these issues before me on 14 May 2007.  I record that all children's issues have been resolved by orders pronounced earlier this day and largely by consent.  I propose to make interim orders in accordance with these brief extempore reasons and to case‑manage the matter so that the financial issues can be heard and determined on 14 May 2007.  I would imagine this case could not or should not take more than two days.  The orders will be engrossed by the court.

18. This is the final paragraph of each judgment.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 15 January 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Randall-Moss & Randall-Moss