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Roth & Roth

Roth & Roth

Case [2024] FedCFamC2F 111 2 February 2024

Interim Property Settlement

Interim Spousal Maintenance

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Interlocutory Orders

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Roth & Roth [2024] FedCFamC2F 111

File number(s): HBC 396 of 2023

Judgment of: JUDGE TURNBULL

Date of judgment: 2 February 2024

Catchwords:
FAMILY LAW – INTERIM PROPERTY SETTLEMENT – whether the Wife should receive $200,000 by way of an interim distribution – whether there are sufficient assets so as to meet the reasonably anticipated orders of each party – whether the monies should come from monies controlled by the Husband where the Wife has access to finds.

FAMILY LAW – INTERIM SPOUSAL MAINTENACE – whether the Wife has a need for spousal maintenance – whether the Husband has the capacity to pay maintenance if a need is established.

Legislation: Family Law Act 1975 (Cth) ss 72, 74, 75(2), 79(4), 80(1)(h)

Cases cited:
Bevan and Bevan (1995) FLC 92-600

Brown and Brown (2007) FLC 93-316

Chea & Sok [2022] FedCFamC1F 628

Elder v Elder [2009] FamCAFC 224

Evans and Evans (1978) FLC 90-435

Garston & Yeo (No 2) [2019] FamCAFC 139

Hall v Hall [2016] HCA 23

Kyriakos & Kyriakosand Anor (2013) FLC 93-528

Marchant & Marchant (2012) FLC 93-520

Maroney & Maroney [2009] FamCAFC 45

Medlow & Medlow (2016) FLC 93-692

Mitchell and Mitchell (1995) FLC 92-601

Osferatu & Osferatu [2012] FamCA 408

Qin & Donato [2023] FedCFamC1A 223

Redman and Redman [1987] FamCA 2

Seitzinger & Seitzinger (2014) FLC 93-626

Stanford & Stanford (2012) 247 CLR 108

Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166; (2011) FLC 93-466

Weir & Weir (1992) 16 FAM LR

Williamson and Williamson [1978] FamCA 57; (1978) FLC 190-505; (1978) 4 Fam. L.R. 355 at FLC

Division: Division 2 Family Law

Number of paragraphs: 87

Date of last submission/s: 7 December 2023

Date of hearing: 7 November and 10 November 2023, with written submissions received 24 November 2023 and 7 December 2023

Place: Hobart – delivered in City Q

Counsel for the Applicant: Mr Batey

Solicitor for the Applicant: Ogilvie Jennings Lawyers

Counsel for the Respondent: Mr Zeeman

Solicitor for the Respondent: Murdoch Clarke Lawyers
ORDERS

HBC 396 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ROTH

Applicant

AND:
MR ROTH

Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

2 FEBRUARY 2024

THE COURT ORDERS THAT:
1.Until further order, the Wife have sole and exclusive possession of the property situated and known as B Street, Suburb C.
2.Within 14 days of the date of this order the Husband return to the Wife all keys, garage remotes, and other security devices relating to the Suburb C property.
3.The Wife receive the sum of two hundred thousand dollars ($200,000) by way of interim property distribution, with such payment to be made as follows:
(a)The sum of one hundred thousand dollars ($100,000) from the Husband’s NAB account numbers …86, and/or …26 (with the Husband to deposit that sum into the Wife’s nominated bank account); and
(b)The sum of one hundred thousand dollars ($100,000) from the Wife’s Country…

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.

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Details

AGLC: Roth & Roth [2024] FedCFamC2F 111
Case: [2024] FedCFamC2F 111
Decision Date: 2 February 2024

CaseChat Overview and Summary

In the matter of Roth & Roth, the applicant, Ms Roth, sought an interim property settlement and spousal maintenance from the respondent, Mr Roth. The Federal Circuit and Family Court of Australia was tasked with determining whether the applicant should receive $200,000 by way of an interim distribution, whether there were sufficient assets to meet the reasonably anticipated orders of each party, and whether the moneys should come from the husband's funds given the wife's access to her own assets. Additionally, the court needed to decide if the applicant had a need for spousal maintenance and whether the respondent had the capacity to pay maintenance if such a need was established.

The court considered the evidence presented by both parties and concluded that the applicant should receive $200,000 by way of an interim distribution. The court found that the husband's assets were sufficient to meet this order and that it was appropriate for the payment to be made from the husband's funds, given the wife's access to her own assets. The court also determined that the applicant had a need for spousal maintenance and that the respondent had the capacity to pay the ordered amount.

The court ordered that the applicant receive $200,000 by way of an interim property distribution, with half to be paid by the husband from his NAB account and the other half from the applicant's investment account. Additionally, the court ordered that the respondent pay the applicant interim spousal maintenance in the sum of $1,750 per week, with the first payment to be made on 5 February 2024. The court also ordered that the respondent continue to cause E Pty Ltd to pay the applicant a salary of $500 per month. The applicant's interim application was dismissed in all other respects, and the matter was listed for directions.

Orders

Orders of the court

HBC 396 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ROTH

Applicant

AND:

MR ROTH

Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

2 FEBRUARY 2024

THE COURT ORDERS THAT:

1. Until further order, the Wife have sole and exclusive possession of the property situated and known as B Street, Suburb C.

2. Within 14 days of the date of this order the Husband return to the Wife all keys, garage remotes, and other security devices relating to the Suburb C property.

3. The Wife receive the sum of two hundred thousand dollars ($200,000) by way of interim property distribution, with such payment to be made as follows:

(a) The sum of one hundred thousand dollars ($100,000) from the Husband’s NAB account numbers …86, and/or …26 (with the Husband to deposit that sum into the Wife’s nominated bank account); and

(b) The sum of one hundred thousand dollars ($100,000) from the Wife’s Country D investment account.

4. The Husband pay the Wife interim spousal maintenance in the sum of $1,750 per week (with the first payment to be made 5 February 2024) with such payments to be directed into the Wife’s nominated bank account.

5. The Husband continue to cause E Pty Ltd to pay the Wife a salary of $500 per month.

6. The Wife’s interim application — forming part of her Amended Initiating Application filed 9 November 2023 — be otherwise dismissed.

7. The matter is listed for directions at 9.30am 13 February 2024 with all parties granted leave to appear by MS Teams.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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Citations

Roth & Roth [2024] FedCFamC2F 111

Cases Citing This Decision

No citing cases yet.

Cases Cited

Qin & Donato [2023] FedCFamC1A 223
Citation 1 (Para 18)

…Recently, in Qin & Donato [2023] FedCFamC1A 223, the Full Court confirmed this approach: Whilst adequate needs can often be inferred from a person’s expenses, such expenses may not extend to reasonable needs. A person with no income and who cannot pay any expenses, still has needs. Thirdly, what are assessed to be ‘reas…
Chea & Sok [2022] FedCFamC1F 628
Citation 2 (Para 1)

…The principles are helpfully summarised in Chea & Sok [2022] FedCFamC1F 628: 49.In Strahan , the Full Court held that there is a two-stage process to applications for interim partial property settlement. Firstly, the procedural step, which is the question of whether the Court should exercise discretion to entertain and…
Garston & Yeo (No.2) [2019] FamCAFC 139
Citation 3 (Para 19)

…In Garston & Yeo (No 2) [2019] FamCAFC 139, the Full Court considered what amounts to a ‘reasonable expense’: A claim for maintenance is not limited by reference to current expenses because an applicant applying for maintenance may not have the ability to pay for commitments necessary to support themselves (s 75(2)(d…
Hall v Hall [2016] HCA 23
Citation 4 (Para 16)

…In Hall v Hall [2016] HCA 23, the High Court summarised the issues to be considered: (a)To what extent is the wife unable to support herself; (b)What are the wife’s reasonable needs; (c)What capacity does the husband have to meet a spousal maintenance order if such an order was to be made; and (d)If the wife’s c…
Stanford v Stanford [2012] HCA 52
Citation 5 (Para 8)

…s underpinning their relationship no longer stand.[25] It is therefore just and equitable for a property order to be made. [25] Stanford & Stanford (2012) 247 CLR 108, 122 [41].…
Osferatu & Osferatu [2012] FamCA 408
Citation 6 (Para 1)

…ation at any time prior to, or as part of, the final exercise of the s 79 power”. 54.In Osferatu & Osferatu [2012] FamCA 408, Watts J at [41] made clear a detailed inquiry is not required: As was discussed in Harris and confirmed in Strahan , the second step in making an interim property order is to have regard to…
Elder v Elder [2009] FamCAFC 224
Citation 7 (Para 20)

…intenance is under consideration to an income tested pension, allowance, or benefit’.[58] This was interpreted by the Full Court in Elder v Elder [2009] FamCAFC 224 to mean that the entitlement or receipt of a pension cannot be taken into account in determining whether the party to receive a maintenance is unable to…
Maroney & Maroney [2009] FamCAFC 45
Citation 8 (Para 1)

…ithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets. [60] Maroney & Maroney [2009] FamCAFC 45.…
Redman & Redman [1987] FamCA 2
Citation 9 (Para 2)

…spousal maintenance proceedings, where the inquiry does not need to be as forensic as that would be the case at a final hearing. In Redman and Redman [1987] FamCA 2, the Full Court observed: Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hear…
Williamson and Williamson [1978] FAMCA 57
Citation 10 (Para 2)

…the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson [1978] FamCA 57; (1978) FLC 190-505; (1978) 4 Fam. L.R. 355 at FLC p.77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not s…
As the respondents point out, when Mr Meyer provided his advice he did not have the benefit of Strahan v Strahan [2009] FAMCAFC 166
Citation 11 (Para 3)

…(in this case the Husband) has effective control of the major assets and his substantial income: 18.In Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166, it was understood that: ‘[209] The Court may use this power [section 79] to “require the party who controls most of the assets of the parties to provi…

Legislation Cited

Family Law Act 1975 (Cth) 72, 74, 75(2), 75(3), 79(4), 80(1)(h)
7 mentions (from Para 2)

File number(s):	HBC 396 of 2023
Judgment of:	JUDGE TURNBULL
Date of judgment:	2 February 2024
Catchwords:	FAMILY LAW – INTERIM PROPERTY SETTLEMENT – whether the Wife should receive $200,000 by way of an interim distribution – whether there are sufficient assets so as to meet the reasonably anticipated orders of each party – whether the monies should come from monies controlled by the Husband where the Wife has access to finds. FAMILY LAW – INTERIM SPOUSAL MAINTENACE – whether the Wife has a need for spousal maintenance – whether the Husband has the capacity to pay maintenance if a need is established.
Legislation:	Family Law Act 1975 (Cth) ss 72, 74, 75(2), 79(4), 80(1)(h)
Cases cited:	Bevan and Bevan (1995) FLC 92-600 Brown and Brown (2007) FLC 93-316 Chea & Sok [2022] FedCFamC1F 628 Elder v Elder [2009] FamCAFC 224 Evans and Evans (1978) FLC 90-435 Garston & Yeo (No 2) [2019] FamCAFC 139 Hall v Hall [2016] HCA 23 Kyriakos & Kyriakosand Anor (2013) FLC 93-528 Marchant & Marchant (2012) FLC 93-520 Maroney & Maroney [2009] FamCAFC 45 Medlow & Medlow (2016) FLC 93-692 Mitchell and Mitchell (1995) FLC 92-601 Osferatu & Osferatu [2012] FamCA 408 Qin & Donato [2023] FedCFamC1A 223 Redman and Redman [1987] FamCA 2 Seitzinger & Seitzinger (2014) FLC 93-626 Stanford & Stanford (2012) 247 CLR 108 Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166; (2011) FLC 93-466 Weir & Weir (1992) 16 FAM LR Williamson and Williamson [1978] FamCA 57; (1978) FLC 190-505; (1978) 4 Fam. L.R. 355 at FLC
Division:	Division 2 Family Law
Number of paragraphs:	87
Date of last submission/s:	7 December 2023
Date of hearing:	7 November and 10 November 2023, with written submissions received 24 November 2023 and 7 December 2023
Place:	Hobart – delivered in City Q
Counsel for the Applicant:	Mr Batey
Solicitor for the Applicant:	Ogilvie Jennings Lawyers
Counsel for the Respondent:	Mr Zeeman
Solicitor for the Respondent:	Murdoch Clarke Lawyers

HBC 396 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS ROTH Applicant
AND:	MR ROTH Respondent

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	2 FEBRUARY 2024