Riley and Riley (No 2) - [2014] FamCA 956

FAMILY COURT OF AUSTRALIA

RILEY & RILEY (NO. 2)

[2014] FamCA 956

FAMILY LAW – PROPERTY – interim orders – wife’s application in a case for spousal maintenance and for extension of interim orders made by consent on 30 April 2014 – application opposed by the husband – cross-application of husband for the wife to deliver up possession of a vehicle and for it to be sold, and the chattel mortgage arrangements for the vehicle to be satisfied and the balance to be paid to the husband’s company – order made for husband to continue to pay spousal maintenance to the wife and for a number of payments to be made by way of spousal maintenance – husband’s application dismissed.

Evidence Act 1958 (Cth) s 140.

Family Law Act 1975 (Cth) s 72, 74, 75, 79, 80.

Bevan & Bevan (1995) FLC 92-600
Curnow & Curnow (unreported, Family Court of Australia, Ellis, Kay and Moore JJ, 28 April 1997)

Mitchell and Mitchell (1995) FLC 92-601

APPLICANT:

Ms Riley

RESPONDENT:

Mr Riley

FILE NUMBER:

MLC

9926

2011

DATE DELIVERED:

7 November 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

16 and 17 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Minal Vohra

SOLICITOR FOR THE APPLICANT:

Mills Oakley

COUNSEL FOR THE RESPONDENT:

Mr Jeremy St John Q.C.

SOLICITOR FOR THE RESPONDENT:

M A Legal

Orders

Until further order, the husband pay to the wife by way of interim periodic spousal maintenance the weekly sum of $600, from 17 September 2014.
Until further order, the husband, by way of spousal maintenance, make or cause to make the following payments to or for the wife:
(a)all payments and costs of the Westpac home loan account … secured upon R Street, Suburb W;
(b)private health insurance for the wife at the current level;
(c)the wife’s mobile phone charges; and
(d)the lease costs, insurances, registration, fuel and maintenance of the Toyota LandCruiser ….
Should the husband choose to deduct the payments pursuant to order (2) from the parties’ loan accounts with Riley Pty Ltd, they are to be debited equally to those loan accounts.
The wife’s interlocutory application for the husband to cause drawings to be made from Riley Pty Ltd by debiting in equal amounts to the loan accounts of each of the parties in order to pay a sum equivalent to the school fees for the children of the marriage, tuition fees and other school-related expenses (as agreed in writing), is dismissed.
The husband’s interlocutory application for the wife to deliver up to him possession of the Toyota LandCruiser … and for the husband to deliver to the wife contemporaneously the Toyota Camry station wagon … is dismissed.
The costs of both parties be reserved.

AND THE COURT NOTES THAT:

The wife has given a personal undertaking on oath to the court through her counsel on 17 September 2014 that she will immediately inform the husband of any substantial change in her financial circumstances or employment.

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 Riley and Riley (No 2)

Details

AGLC: Riley and Riley (No 2) [2014] FamCA 956
Case: [2014] FamCA 956
Decision Date: 7 November 2014

CaseChat Overview and Summary

In *Riley and Riley (No 2)*, Thornton J of the Family Court of Australia considered applications for interim spousal maintenance and other interlocutory relief in proceedings between a husband and wife. The wife sought interim periodic spousal maintenance and orders for the husband to meet certain expenses, including mortgage payments, private health insurance, mobile phone charges, and vehicle costs. The husband sought the return of a vehicle and offered to provide a different vehicle to the wife.

The primary legal issues before the court were whether to grant interim periodic spousal maintenance to the wife, and if so, on what terms. The court also had to determine applications concerning the provision of private health insurance, mobile phone charges, and the use of vehicles. Additionally, the court considered an application by the wife for the husband to fund school fees and an application by the husband for the return of a specific vehicle.

Thornton J reasoned that the wife had established a need for interim spousal maintenance, given the circumstances. The court ordered the husband to pay a weekly sum by way of interim periodic spousal maintenance and to continue to meet specific expenses for the wife, including mortgage payments on a property, private health insurance, mobile phone charges, and costs associated with a particular vehicle. The court dismissed the wife's application regarding school fees, finding it was not appropriate to make such an order at this interim stage. The husband's application for the return of a vehicle was also dismissed. The court reserved costs and noted an undertaking given by the wife regarding changes in her financial circumstances.

Orders

Orders of the court

Until further order, the husband pay to the wife by way of interim periodic spousal maintenance the weekly sum of $600, from 17 September 2014.

Until further order, the husband, by way of spousal maintenance, make or cause to make the following payments to or for the wife:

(a) all payments and costs of the Westpac home loan account … secured upon R Street, Suburb W;

(b) private health insurance for the wife at the current level;

(d) the lease costs, insurances, registration, fuel and maintenance of the Toyota LandCruiser ….

Should the husband choose to deduct the payments pursuant to order (2) from the parties’ loan accounts with Riley Pty Ltd, they are to be debited equally to those loan accounts.

The wife’s interlocutory application for the husband to cause drawings to be made from Riley Pty Ltd by debiting in equal amounts to the loan accounts of each of the parties in order to pay a sum equivalent to the school fees for the children of the marriage, tuition fees and other school-related expenses (as agreed in writing), is dismissed.

The husband’s interlocutory application for the wife to deliver up to him possession of the Toyota LandCruiser … and for the husband to deliver to the wife contemporaneously the Toyota Camry station wagon … is dismissed.

The costs of both parties be reserved.

AND THE COURT NOTES THAT:

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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