Selwood and Selwood (No 2)

[2016] FamCA 166

FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD (NO 2) [2016] FamCA 166

FAMILY LAW – PROPERTY – interim orders – where the wife seeks that the home loan be paid by the husband – where the husband maintains that the issue is res judicata – where the Court does not consider that it is res judicata as the matter specifically deals with payments of interest accrued – where there is an appeal outstanding – where it is ordered that the husband pay the outstanding amount included the interest charged each month.

FAMILY LAW – COSTS – where it is ordered that each party bear their own costs.

Family Law Act 1975 (Cth) s 75, 79, 80, 117

APPLICANT: Ms Selwood

RESPONDENT: Mr Selwood

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DNC 359 of 2010

DATE DELIVERED: 11 March 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: Mr Norrington

SOLICITOR FOR THE RESPONDENT: DS Family Law

Orders

Upon noting this order is subject to the appeal not being successful:

1. Within fourteen [14] days from today the husband pay to the National Australia Bank home loan BSB:… Account No: … the sum of TWENTY EIGHT THOUSAND AND ONE HUNDRED AND THIRTY SIX DOLLARS AND NINETY TWO CENTS [$28,136.92].

2. Until further order the husband pay on the last day of each month an amount equal to the interest charged by the National Australia Bank for that month presently outstanding on the said loan.

3. Each party bear their own costs of and incidental to this application.

4. The Application in a Case filed by the wife on 24 February 2016 is dismissed and removed from the active pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 359 of 2010

Ms Selwood

Applicant

And

Mr Selwood

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These orders are made on the clear understanding that my final orders for property settlement are still the subject of appeal to the Full Court, which has not yet been determined.  The application I have before me is an Application in a Case filed by the wife on 24 February 2016 requiring “that forthwith, the husband pay to the National Australia Bank home loan” – and then gives the number – “the sum of $28,136.92 and (2) that until further order, the husband shall pay, on the last day of each month, a sum commensurate with the interest charged by the National Australia Bank from time ….. on the outstanding home loan, presently in the sum of $580,129.66, and (3) that the husband pay the wife’s cost of and incidental to this application fixed in the sum of $1650 pursuant to schedule 3 of the Family Law Rules, such costs to be paid within 28 days.”

2. That Application in a Case and the orders sought are opposed by the husband.  Both parties have filed affidavits in support of the argument. 

3. The husband’s response to the Application in a Case filed on 8 March 2016 seeks that the application be dismissed and that the wife pay the husband’s costs on an indemnity basis, fixed in the sum of $2200, within seven days. 

4. The dispute between the parties is the interpretation of the orders that I made on 4 October 2012, which were specifically continued by notation of the orders I made after my judgment and the appeals had been started, namely, July 2014 and the orders made thereafter on 11 December 2014 continuing paragraph 6 of the orders of 4 October 2012.

5. Paragraph 6 of the order 4 October 2012 provided that the husband pay all amounts as they fall due in relation to the joint home loan mortgage – such amounts to be paid from his own resources using any rent which may be collected from various properties, which have since been sold, and keep the wife informed promptly upon receipt of all rentals and payment of the home loan mortgage interest payments. 

6. It is the husband’s allegation on the material before me that since that order, he has used the rent which payments have been made to the mortgage account and that as a result of the monies paid, he was in advance until he recently fell behind and claims to have made that up by the payment on 16 February 2016 with a further sum of $5062.67.

7. The wife maintains, however, that the amounts due pursuant to the mortgage have not been paid promptly, and specifically, the schedule provided by the wife (paragraph 19 of her affidavit filed on 24 February 2016) sets out the payments, the interest accrued since, and including, 28 February 2015 to 29 January 2016, which would leave amounts unpaid of $33,199.59.  Discounting the figure of $5062.67 paid by the husband on 16 February 2016, this reduces to the sum of $28,136.92 which the wife is claiming be paid.  The husband maintains that this matter is res judicata.

8. In some previous decisions concerning simpler applications, I have dismissed the wife’s application.  I am not satisfied that it is res judicata because I am specifically dealing with the payments of interest which accrued from 28 February 2015 to the present time and therefore consider that I can hear and determine the Application in a Case. 

9. I note the appeal is outstanding.  I appreciate that these orders are made after the judgment was given and were made to maintain the financial situation of the parties in a manner which was just and equitable.

10. Taking into account the outstanding appeal, I have no ability to bring about an end to these proceedings whilst the appeal remains outstanding.  I consider that it is appropriate to consider the Application in a Case for the orders being sought as they relate to what might be described as orders appropriate during the pending proceedings and the inability of the parties to fully comply with the orders whilst the appeal remains outstanding.  The significant factor in calculating the appropriate orders is the fact that in the judgment delivered, I brought into account the outstanding bank loan, the sum of $494,968.67, and subsequently made an order that the previous orders for the husband to pay all amounts as they fall due pursuant to the mortgage should be continued.

11. The evidence before me clearly establishes that the mortgage outstanding as at 29 January 2016 was $523,192.33.  When one takes into account the $494,968.67, which I considered in the assessment of the property settlement and the orders which I thereafter made, this supports the wife’s argument that the husband has failed to pay all amounts as they fall due in relation to the mortgage on the National Australia Bank.

12. Taking into account all of the factors in relation to s 79, s 75(2) and s 80 of the Family Law Act 1975 (Cth) (“the Act”) I consider that I have the power, and that it is just and equitable in all of the circumstances, to exercise the power. Taking into account those matters to which I have already given consideration in my final judgment, and the orders which have subsequently been made by way of interim orders pending the appeal. The orders sought by the wife in paragraphs 1 and 2 are appropriate, save and except I will alter some of the wording.

13. The orders that I have made will be subject to any order made by the Full Court, after they have been advised of this order.  This order that I make is obviously subject to the appeal not being successful, and that would need to be considered on the re-hearing of the matter.  But if the appeal is not successful, then these orders will be maintained.  If the appeal is successful then the payments the husband has made can be taken into account.

14. I am now considering the question of the costs application.  The wife has been successful in obtaining orders very similar to those sought.  However, it is necessary for the Court to take into account the primary legislation concerning costs, which says unless the Court otherwise orders, each party bear their own costs, and when considering making an order for costs certain factors have to be taken into account.  The financial circumstances of the parties currently are not known and cannot be clearly determined whilst the appeal remains outstanding.

15. What is a factor, however, is that the wife has been primarily successful in obtaining the orders which she sought.  However, I also accept the submissions on behalf of the husband, that this matter is not entirely straightforward and was one which, on the face of it, was possible of being subject to argument on behalf of the husband.  The history of the matter, the complexity of the matter and the interpretation of the orders of the Court and the method in which the husband has interpreted the orders and arrangements he has made in relation to the mortgage were open to argument.

16. I am therefore not satisfied that the factors under s 117 require or, indeed, support an order being made other than that each party bear their own costs of and incidental to this application.

17. The interim matters are therefore dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 March 2016.

Associate: 

Date:  21 March 2016