RYERS & RYERS - [2017] FamCA 429

FAMILY COURT OF AUSTRALIA

RYERS & RYERS

[2017] FamCA 429

FAMILY LAW – PROPERTY –INTERIM PROCEEDINGS – SPOUSAL MAINTENANCE – Where the wife seeks urgent spousal maintenance – Where the Court finds that the wife is unable to support herself adequately for the purposes of section 72(1)(a) – Where the Court finds that the husband has capacity to pay urgent spousal maintenance in the sum of $555 per week and, in the event that the husband does not vacate the former matrimonial home an additional amount of $1650 per week together with a lump sum amount of $15,000 – Orders made.

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife sought exclusive occupation of the former matrimonial home – Where the husband is yet to file his evidence – Consideration of general principles – Court finds that no order for exclusive occupation should be made.

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – INJUNCTIONS –Where the wife seeks that the parties be restrained from operating accounts or funds held in overseas accounts – Where the wife seeks that husband be restrained from dealing with his interest in a company – Orders made restraining the parties from operating accounts.

FAMILY LAW – CHILD SUPPORT – Where the Wife seeks urgent child support –Where the husband agrees to the orders sought by the Wife – Orders made by consent pursuant to s 139 of the Child Support (Assessment) Act 1989 (Cth), that the husband pay to the wife the sum of $1,000 per week by way of urgent child support for the children.

Family Law Act 1975 (Cth), ss 72(1)(a), 74(1), 75(2), 77, 79, 114
Child Support (Assessment) Act 1989 (Cth), s 139

Hall and Hall [2016] HCA 23

Kelleher & Anderson [2007] FamCA 137
Sieling and Sieling (1979) FLC 90-627

Sholte and Sholte [2002] FamCA 59

APPLICANT:

Ms Ryers

RESPONDENT:	Mr Ryers
FILE NUMBER:	SYC	2839	of		2017

DATE DELIVERED:

22 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

22 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Eldershaw

SOLICITOR FOR THE APPLICANT:

Craddock Murray Neumann Lawyers

SOLICITOR FOR THE RESPONDENT:

Marsdens Law Group

Orders

*THE COURT ORDERS BY CONSENT AND PENDING FURTHER ORDER THAT:

*Urgent Child Support

*The Court notes that the Wife has made an application to the Child Support Agency for an assessment of child support for the children of the parties, namely B born … 2001 and C born … 2004 (“the children”).
*Pursuant to s 139 of the Child Support (Assessment) Act 1989 (Cth), the husband pay to the wife the sum of $1,000 per week by way of urgent child support for the children.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Each party be forthwith restrained from operating any of the following accounts or funds other than with the written consent of the other party or by further order of the Court:
a.D Bank account number …7-7 (classic checking)
b.D Bank Individual …29 College…

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: RYERS & RYERS [2017] FamCA 429
Case: [2017] FamCA 429
Decision Date: 22 May 2017

CaseChat Overview and Summary

In the matter of Ryers & Ryers, the wife sought urgent spousal maintenance from the husband. The court considered the wife's inability to adequately support herself under section 72(1)(a) of the relevant legislation and the husband's capacity to pay.

The primary legal issues before the court were whether the wife was unable to support herself adequately and whether the husband had the capacity to pay urgent spousal maintenance. The court was also required to determine the appropriate quantum of such maintenance and to make orders regarding child support and the preservation of assets.

McClelland J found that the wife was unable to support herself adequately and that the husband had the capacity to pay urgent spousal maintenance. The court ordered the husband to pay $555 per week by way of spousal maintenance, with the first payment due within seven days. Additionally, the husband was ordered to pay a lump sum of $15,000 to the wife as urgent spousal maintenance. The court also made orders for urgent child support payments of $1,000 per week and imposed restraints on the parties' access to various bank and investment accounts, as well as the husband's dealings with his interest in F Limited and loan repayments to G Pty Ltd. The husband was also required to provide rental guarantee or other necessary documents to assist the wife in securing rental accommodation up to $1,650 per week for a period of three months, or until a further interim hearing. The court noted the husband's lease over a property at I Street and provided for the exclusive occupancy of a leased property at M Street, Suburb N, NSW, with specific conditions regarding rental payments and the cessation of additional spousal maintenance if the wife took exclusive occupancy of the Suburb N property. The matter was adjourned for further interim hearing.

Orders

Orders of the court

*THE COURT ORDERS BY CONSENT AND PENDING FURTHER ORDER THAT:

*Urgent Child Support

*The Court notes that the Wife has made an application to the Child Support Agency for an assessment of child support for the children of the parties, namely B born … 2001 and C born … 2004 (“the children”).

*Pursuant to s 139 of the Child Support (Assessment) Act 1989 (Cth), the husband pay to the wife the sum of $1,000 per week by way of urgent child support for the children.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Each party be forthwith restrained from operating any of the following accounts or funds other than with the written consent of the other party or by further order of the Court:

a. D Bank account number …7-7 (classic checking)

b. D Bank Individual …29 College Savings accounts (2)

c. D Bank Traditional IRA

d. D Bank Individual accounts (2)

e. D Bank … accounts (2)

f. D Bank Joint account

g. E Investments Joint brokerage account …52

h. E Investments Mr Ryers brokerage account …13

i. E Investments brokerage account …59

j. E Investments Traditional IRA brokerage account …35

k. E Investments fund account …21

l. E Investments … 25 and 25

m. E Investments Roth IRA brokerage account …00

*(collectively, “the Parties’ US Accounts”)

Within 24 hours of the making of these Orders, the Husband shall provide to the Wife all current passwords and log-in details for the Parties’ US Accounts and shall thereafter be restrained from changing such passwords and log-in details.

That the Husband be forthwith restrained from withdrawing, transferring, encumbering or in any way dealing with his interests in F Limited, including any shareholdings issued to the Husband to date without giving the wife not less than 21 written notice of his intention to do so.

That the Husband be forthwith restrained from taking any steps to cause repayments relating to a loan to G Pty Ltd to be paid by G Pty Ltd to any account other than the Joint NAB Account.

Pursuant to s 121 of the Family Law Act, the Wife may provide a copy of these Orders to the following financial institutions in aid of the orderly implementation of these orders:

n. National Australia Bank, Manager of Suburb H Branch

o. D Bank

p. E Investments

The Court notes that the husband holds a fixed term lease over a 1-bedroom unit at I Street, Suburb H.

That pending further order, the husband shall cause to be paid to the wife the sum of $555 per week (net) by way of spousal maintenance and the first payment shall be made to the bank account nominated by the wife within 7 days of the orders and thereafter weekly.

10.

That within seven (7) days the husband is to pay to wife the sum of $15,000 by way of urgent spousal maintenance.

11.

Until further order of the Court but for a period of not longer than 3 months from the date of these Orders and pending further interim hearing, the husband shall execute any rental guarantee or any other document required by wife or the wife’s landlord to enable wife to secure rental accommodation in the suburbs between Suburb K and Suburb L in the sum of not more than $1650 per week.

12.

Unless otherwise agreed between the parties, the husband is to exclusive occupancy of the property located at M Street, Suburb N in NSW (“the Suburb N property”) which is leased in the husband’s sole name.

13.

In the event that the parties agree for the wife to have exclusive occupancy of Suburb N property, then it is unnecessary for the husband to pay the additional spousal maintenance in the sum of $1650 per week or to pay the lump sum of $15 000 to the wife, and in the event that the wife has exclusive occupancy of the Suburb N property the husband will pay, as when they fall due, all rental payments on the Suburb N property.

14.

The matter is adjourned for further interim hearing in the first available duty list after 21 June 2017, being at 9.30 am on 7 August 2017.

15.

Costs of today be reserved.

*Amended pursuant to the Slip Rule on 14 June 2017

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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