RIMAC & RIMAC

[2018] FamCA 951

FAMILY COURT OF AUSTRALIA

RIMAC & RIMAC [2018] FamCA 951

FAMILY LAW – PROPERTY – where the husband seeks a declaration in relation to ownership of a property – where that property is legally owned by both parties – where each party owns 50 per cent of the property – where the husband seeks the wife account for half the rent of the property – where the husband has access to significant funds – where the husband’s financial position vastly exceeds that of the wife –Application dismissed.

FAMILY LAW – COSTS – where the respondent seeks costs in relation to the application – where the husband’s financial position vastly exceeds that of the wife – where the husband has been entirely unsuccessful – where the application for costs is successful – costs to be paid from the ultimate division of property.

Family Law Act 1975 (Cth) ss 78, 117(2A)

APPLICANT: Mr Rimac

RESPONDENT: Ms Rimac

FILE NUMBER: SYC 1540 of 2014

DATE DELIVERED: 8 October 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 8 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cantrell

SOLICITOR FOR THE APPLICANT: Shore Stack Lawyers

SOLICITOR FOR THE RESPONDENT: Hughes & Taylor

Orders

IT IS ORDERED

1. That the application listed this day be dismissed.

2. That in relation to costs, the husband pay to the wife the sum of $3000.00 by way of costs of these proceedings such sum to be paid from the final distribution of property between the husband and the wife.

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 Rimac & Rimac 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 1540 of 2014

Mr Rimac

Applicant

And

Ms Rimac

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court is an Application pursuant to s 78 of the Family Law Act 1975 (Cth) (“the Act”) seeking a declaration in relation to the ownership of the property at Suburb B. It is not in dispute that the legal ownership of the property is 50 per cent to the husband and 50 per cent to the wife. In reality, the application before the Court is an application by the husband for an order that the wife account to the husband for half of the rent of that property.

2. On behalf of the respondent, whose expenses are not challenged, it is submitted that the Court would not make such an order in circumstances where the respondent has an income of $1,262 a week, including the rental of the subject property, and her expenses are $1,140 a week.

3. The applicant, on the other hand, has chosen to alienate some $2,200,000 by lending those moneys to his nephew. Despite the fact that the agreement appears to contain a provision for interest, the applicant does not seem to be collecting interest. There is no evidence before the Court to explain why the applicant is not able to have any access to the sum of $2,200,000 that is undeniably his property and neither is there any evidence before the Court from the applicant about the way in which he has dealt with a further sum of some $1,000,000 being the proceeds of sale of a property and superannuation cashed in by him.

4. In the circumstances, in my view, there is no basis upon which the Court would deal with this matter on an interim basis and I propose to dismiss the application.

Costs

1. This is an application for costs on behalf of the respondent. The costs are estimated by the respondent to be $3,000 which I consider to be a reasonable amount. The provisions of s 117(2A) of the Act govern the application. On the face of the documents before me, the husband’s financial position vastly exceeds that of the wife. Neither of the parties is in receipt of any amount by way of Legal Aid. The husband has been entirely unsuccessful in his application and that lack of success, to some extent, was contributed to by the manner in which he chose to bring evidence before the Court.

2. In my view, the husband shall pay the wife’s costs of the proceedings in the sum of $3,000, but those costs should be paid from the ultimate division of property when the matter has been determined on a substantive basis.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 8 October 2018.

Associate: 

Date:  8 October 2018