RILEY & MASSALSKI - [2017] FamCA 985

FAMILY COURT OF AUSTRALIA

RILEY & MASSALSKI

[2017] FamCA 985

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the husband made an application for partial property distribution – Where the husband sought orders for the sale of one of the parties’ jointly owned properties and $350,000 to be distributed to him from the proceeds of sale – Where the husband argued that it is in the interests of justice for there to be a partial property distribution to enable him to discharge some of his indebtedness – Where the wife opposed the application – Court finds that the orders sought by the husband would deprive the wife of the ability to argue for the final orders she seeks – Whether it is in the interests of justice for an order to be made – Court finds that the husband has sufficient resources to manage his indebtedness until the final hearing – Application dismissed.

Family Law Act 1975 (Cth) ss 79, 80(1), 90SM, 90SS

Family Law Rules 2004 (Cth) r 1.04

Davidson and Davidson (No 2) (1994) FLC 92-469
Gabel & Yardley (2008) FLC 93-386
Massalski & Riley [2016] FamCA 144
Medlow & Medlow (2016) FLC 93-692

Riley & Massalski [2016] FamCA 1169

Strahan & Strahan (Interim Property Orders) (2011) FLC 93‑466

Stanford and Stanford (2012) 247 CLR 108

Sully & Sully (No.2) [2016] FamCA 706
Wenz v Archer (2008) 40 Fam LR 212

APPLICANT:

Mr Riley

RESPONDENT:

Ms Massalski

FILE NUMBER:

SYC

496

2015

DATE DELIVERED:

4 December 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

9 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Russell C Byrnes Solicitor

COUNSEL FOR THE APPLICANT:

Mr Fowler

COUNSEL FOR THE RESPONDENT:

Mr Hayes

Orders

THE COURT ORDERS THAT:

The husband’s application for a partial property distribution is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Riley & Massalski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 496 of 2015

Mr Riley

Applicant

And

Ms Massalski

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns an application by Mr Riley for orders for a partial distribution of property pending the final hearing of the matter. Mr Riley is the former de facto partner of Ms Massalski. For convenience, Mr Riley will be referred to as the husband and Ms Massalski will be referred to as the wife.
The husband seeks an order for the sale of part of the property that the parties jointly own at F…

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 & MASSALSKI

Details

AGLC: RILEY & MASSALSKI [2017] FamCA 985
Case: [2017] FamCA 985
Decision Date: 4 December 2017

CaseChat Overview and Summary

In this matter before McClelland J, the husband sought an interim order for a partial property distribution. Specifically, he applied for the sale of a jointly owned property and the distribution of $350,000 from the sale proceeds to him. The husband contended that such an order was in the interests of justice, as it would allow him to discharge some of his existing indebtedness. The wife opposed this application.

The central legal issue before the Court was whether it was in the interests of justice to make an order for a partial property distribution at this interim stage. The Court was required to consider whether the orders sought by the husband would prejudice the wife's ability to present her case and argue for the final property orders she sought at the final hearing.

McClelland J reasoned that the orders sought by the husband would indeed compromise the wife's ability to pursue her desired final orders. The Court found that the husband possessed sufficient resources to manage his indebtedness until the final hearing, thereby negating the immediate necessity for the partial distribution. Consequently, the Court concluded that it was not in the interests of justice to grant the application.

The husband’s application for a partial property distribution was dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

The husband’s application for a partial property distribution is dismissed.

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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