Shamon & Shamon (No 7)

Case [2023] FedCFamC1F 97

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Shamon & Shamon (No 7) [2023] FedCFamC1F 97

File number(s): SYC 2375 of 2021
Judgment of: CHRISTIE J
Date of judgment: 24 February 2023
Catchwords:

FAMILY LAW – SPOUSE MAINTENANCE – Where the husband seeks discharge of spouse maintenance orders – Where the evidence does not demonstrate there is a just cause for so doing.

FAMILY LAW – INTERIM PROCEEDINGS – Where the husband seeks that taxes owed by him to the Australian Taxation Office should be paid from controlled monies in the name of the parties - Where the parties disagree about the existence of arrears of school fees and the wife asserts the children’s enrolment in school will not be affected.

FAMILY LAW – PROCEDURE – Where the husband seeks to join the wife’s brother to the proceedings – Where there is no evidence of service of the application on the wife’s brother – application dismissed.  
Legislation:

Child Support (Registration and Collection) Act 1998 (Cth) s 72A

Family Law Act1975 (Cth) ss 79, 83, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.06(5), 12.06
Cases cited: Shamon & Shamon [2021] FamCA 417
Division: Division 1 First Instance
Number of paragraphs: 74
Date of hearing: 21 February 2023
Place: Sydney
The Applicant: Litigant in Person
Solicitor for the Respondent: Mr Jacobs, LawBridge Lawyers & Consultants

ORDERS

SYC 2375 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SHAMON

Applicant
AND:

MS SHAMON

Respondent

order made by:

CHRISTIE J

DATE OF ORDER:

23 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The husband’s application in a proceeding filed 23 December 2022 is dismissed.

2.The wife provide the husband with bank statements for the controlled monies account which show the names of the account holders within seven days.

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.

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

REASONS FOR JUDGMENT

CHRISTIE J:

  1. This is an interim application by the husband, Mr Shamon, seeking financial orders.

  2. The respondent to the application is the wife, Ms Shamon.

  3. There are many other parties to the litigation but as the interlocutory relief sought did not concern them, their attendance at this hearing was excused.

  4. There is an existing…

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Shamon & Shamon (No 7) [2023] FedCFamC1F 97
Case
[2023] FedCFamC1F 97
Decision Date

CaseChat Overview and Summary

In Shamon & Shamon (No 7), the parties, who were married and separated, were before the Family Court to address several issues related to the distribution of assets and financial obligations. The primary concerns included whether the husband should be granted a partial property settlement to cover child support arrears, the discharge of existing spouse maintenance orders, and the release of funds from a controlled account to address tax debts and school fees. The case also involved questions about joining the wife’s brother to the proceedings and the necessity of further disclosures from the wife regarding work done on a property and the use of family money for legal fees.

The court had to determine whether the husband should be permitted to obtain a partial property settlement for child support arrears, whether the spouse maintenance order should be discharged or if the husband should instead receive a property settlement for that purpose. Further, it needed to decide if funds from the controlled account could be used to settle a tax debt and pay school fees, and if the wife’s brother should be included in the proceedings. The court also had to consider whether the wife should disclose details about work done on a specific property and the use of family money for legal expenses.

The court found that while a party does not need to demonstrate special circumstances to seek an interim order, it is necessary to show that such an order would be just and equitable, would not prejudice the other party, and that there are assets available to satisfy the order. Given the available funds and the husband's failure to pay spouse maintenance, the court was hesitant to make a further interim distribution to the husband, as many issues would be resolved at the final hearing. The court ultimately considered the balance of the controlled monies account and the potential financial needs of both parties.

In conclusion, the court denied several of the husband's requests, including the discharge of the spouse maintenance order, the release of funds for tax debt and school fees, and the joining of the wife's brother to the proceedings. The court also declined to order further disclosure from the wife regarding work done on the Suburb F property and the use of family money for legal fees.

Orders

Orders of the court

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Background

Background to the litigation

The issues in the case are:(a)Should the husband be permitted to obtain a partial property settlement to apply to child support arrears?(b)Should the existing order for spouse maintenance payable by the husband to the wife be discharged?(c)In the alternative, should the Court order that the husband receive a partial property settlement which he may then apply to spouse maintenance?(d)Should the husband receive money from the controlled monies account to pay a tax debt and if so, how should that be treated?(e)Should there be a release of funds from controlled monies to pay school fees and if so, how should those funds be treated?(f)Should the wife’s brother be joined to the proceedings?(g)Should the wife be ordered to make disclosure in respect of work undertaken to the D Street, Suburb F, New South Wales (“the Suburb F property”)?(h)Should the wife be ordered to provide disclosure about monies received from family and applied to legal fees?BACKGROUND The parties married in early 2004 and separated on 30 June 2020. They have three children:(a)X (born 2007) (aged 15);(b)Y (born 2011) (aged 11); and(c)Z (born 2018) (aged four). The children live with their mother. The relevant history is set out in Shamon & Shamon [2021] FamCA 417. In early 2022 the parties sold the former matrimonial home and the net sale proceeds of over $550,000 were deposited into the trust account of the wife’s solicitors. On 13 May 2022 orders were made which provided for the distribution of the proceeds of sale (Order 3) as follows: (a)$250,000 into a controlled monies account held by the wife’s solicitors in the name of Ms G (the husband’s sister);(b)$80,000 to the wife for litigation funding;(c)$3,422.68 to the wife for litigation funding interest;(d)$15,000 to the wife for legal costs; and(e)$37,276.57 to the wife as arrears of spouse maintenance. In mid-2022 the parties applied $22,000 from the controlled monies account to the costs of the single expert Dr RR. In late 2022 $166,241.90 was placed in a controlled monies account in the name of the wife. In late 2022 the sum of $4,619.90 was paid to property valuers and the sum of $605 remains outstanding. A short time later, in 2022 a further sum of $4,455 was paid to the single expert Dr RR. Orders for the husband to pay spouse maintenance to the wife were made by the Deputy Chief Justice on 21 June 2021. Importantly, for this application his Honour McClelland DCJ found at [57] of his reasons for judgment:It did not appear to be in dispute that the wife has not worked since, at least, the time of [Z’s] birth, who is now aged 2 years. The wife contends that her responsibilities for caring for the children, including [Z] who will not reach school age until 2024, has prevented her from returning to the workforce. I accept that the wife’s parental responsibilities are such that she is unable to return to the paid workforce at this point in time. Notwithstanding the existence of the orders for spouse maintenance, it would appear, based on the history given by the husband in his affidavit material, he did not pay periodic spouse maintenance and accordingly, arears accrued which were met with the parties’ funds.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

A party does not have to demonstrate special circumstances in order to seek an interim order. However, it is necessary to demonstrate that:(a)Such on order would be just and equitable;(b)Such an order would not prejudice the relief of another party; and (c)There are assets available to satisfy the order.CONSIDERATION The husband identifies the controlled monies account which contains the remainder of the parties’ funds from the sale of property as the source of funds from which he contends the various amounts should be paid. The controlled monies account has a balance of approximately $166,242. The husband contends that the remaining assets of value are the Suburb F property worth $450,000 and subject to a mortgage of $65,407 and his superannuation of about $85,000. Accordingly, on the husband’s case the net assets and superannuation available for adjustment as between the husband and wife are about $635,835. This does not include what the husband contends are assets of the wife in Country UU (discussed below) or the husband’s 2021 tax debt. The wife says the notional assets of the parties would include various other interests transferred by the husband in the period around separation and assets registered in the husband’s name which he contends are held on trust for others, the details of which were the subject of the decision referred to in [8] above. Accordingly, the pool of assets for which the wife will contend at final hearing is significantly larger. The husband’s affidavit material says that the parties are yet to pay $7,700 due to Mr YY for single expert reports and various other single expert reports such that the figure the husband says will remain in the controlled monies account is about $147,277.66. The Court made an order on 26 November 2021 as follows:4. In the event the spousal maintenance payable to the Wife pursuant to the Orders of 22 June 2021 falls into arrears for 14 or more days, the Wife be at liberty to seek payment of those arrears from the controlled monies account … On 26 November 2021 the husband sought to discharge the orders of McClelland DCJ including the order for spouse maintenance. That application was dismissed. Accordingly, it may be the whole of any monies due to the wife, by way of spouse maintenance, will need to be sourced from the controlled monies account. Since this matter will not be heard and determined until next year, the spouse maintenance may exceed $40,000. Effectively the money available to be paid to either party from this source, pending final hearing, may on this accounting be about $100,000. The husband was acting for himself on this application. He did not articulate the source of power under which he proposed I order the payments sought in his application. In the circumstances of this case the only source of power appears to be an exercise of s 79. Accordingly, I would have to be satisfied that it was just and equitable to make the orders the husband seeks. Given these figures I have a genuine concern about making a further interim distribution to the husband in circumstances where so many of the factual controversies in this matter will have to be determined at a final hearing following cross-examination.