Sheridan and Sheridan

[2013] FamCA 408

FAMILY COURT OF AUSTRALIA

SHERIDAN & SHERIDAN [2013] FamCA 408

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Reopen – where the judicial officer is reserved on a judgment concerning final property orders – orders made reopening the trial for hearing on the current financial circumstances of the parties allowing one day.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sheridan

RESPONDENT: Mr Sheridan

FILE NUMBER: ADC 2309 of 2009

DATE DELIVERED: 30 May 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. The trial is reopened for hearing on the current financial circumstances of the parties and adjourned to Monday 17 June 2013 at 10.00 am before the Honourable Justice Dawe (allowing one [1] day).

2. Leave is given to the wife to issue a subpoena to WorkCoverSA in relation to financial matters concerning the husband provided the same is served upon WorkCoverSA within seven [7] days from today and made returnable before a Registrar at a date before the 17 June 2013.

3. Within ten [10] days from today the wife file and serve an affidavit providing full particulars of her current financial circumstances and an affidavit of discovery to which is annexed all relevant documents, including but not limited to:

   (a)       all evidence and documents in relation to her financial circumstances;

   (b)       living expenses;  and

   (c)up to date particulars of any debts (including documents in relation thereto).

4. Within ten [10] days from today the husband file and serve an affidavit setting out full particulars of his current financial circumstances and an affidavit of discovery, including but not limited to:

   (a)all evidence and documents in relation to the motor vehicle (referred to in the wife’s affidavit) or the use of the same;

   (b)       the source of funds for his living expenses;

   (c)       travel to Queensland during 2013;

   (d)       all WorkCoverSA claims and payments;

   (e)       employment particulars;  and

   (f)       all taxation particulars.

   UPON NOTING failure to comply with these orders the Court may draw adverse conclusions in the matter being concluded.

5. The wife sell the property at Lot …, C Street, Town D in the State of South Australia (“the Town D property”) for a price not less than FOUR HUNDRED AND SIXTY THOUSAND DOLLARS [$460,000.00] such sale to be the subject of settlement not later than Friday 9 August 2013 with the proceeds of sale to be applied as follows:

   (a)firstly, discharge costs of and incidental to the sale and payments of all outstanding monies due by way of rates, taxes and other outgoings in relation to the Town D property;

   (b)secondly, discharge of all debts owing to Westpac Banking Corporation secured on that property or any other property or outstanding debts to Westpac Banking Corporation of parties or related entities;

   (c)thirdly, discharge any debts being rates, taxes and outgoings and owing in relation to the other properties of the parties;

   (d)the balance of the proceeds of sale of the Town D property be paid into an interest bearing account in the name of the Registry Manager of the Family Court of Australia at Adelaide Registry and to be held there pending further order.

6. The operation and collection of all child support assessments payable for H born on … September 2001 by Ms SHERIDAN to Mr SHERIDAN is stayed pending determination of any claim made by the wife for variation of that debt to the Child Support Agency.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheridan & Sheridan 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: ADC 2309 of 2009

Ms Sheridan

Applicant

And

Mr Sheridan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have received the affidavit of the husband upon which he seeks to rely in relation to the interim proceedings.  There is no response in that to some of the significant matters raised by the wife in her affidavit as to the husband’s financial circumstances which relate to matters I have to determine, both in relation to interim issues but more importantly in relation to the final property settlement matter.

2. The issues in relation to the husband’s current financial circumstances are significant especially if the wife’s affidavit were found to be correct and the husband has access to, or has purchased, or has a means by which he can use, a new motor vehicle and be able to afford travel to Queensland.  Those issues are not dealt with in the affidavit which is before the Court this morning and remain matters which may need to be determined after hearing oral evidence.

3. The matter that is currently before me this morning is the Application in a Case in relation to the pressing steps being taken by Westpac Bank to maintain payment of the debt due to it.

4. There is reference in this letter (which is now exhibit 56) to a payment being required of $45,743.  It says the bank will accept the full repayment of $31,200 outstanding debt by no later than 31 August 2013.

5. Further down in the letter it refers to the other loans which I understand total a large sum by way of principal and interest. 

6. The proposals that are now put before me this morning are that the wife seeks that the husband vacate the Town E property within 14 days, that the wife be at liberty to sell the block of land (and I presume that is the Town D block of land) to pay out the debts due to the bank with the remaining debts (“banks debts and related debts”) being paid by the wife until judgment is handed down.

7. The next paragraph says “any lump sum payout that the husband received from WorkCover be part of the property pool” and then the fifth paragraph:

   “In the event that the property be sold that the capital gains be shared equally and that the husband not interfere with the sale proceeds.”

8. The husband’s orders sought are that the wife do all things necessary to sell the Town D property, I presume that is the block of land at Town D, to Mr F for the amount of $460,000, “GST excluded”, on or before 30 August 2013. 

9. I fail to understand why the delay would have to be for that many months considering that settlement would be required by the bank before the end of August.

10. The husband asks that the proceeds of sale of the Town D property to be first in discharge of costs of and incidental to the sale, and second in discharge of the debt owed to Westpac secured by that property.  There is no reference to the debts owing to Westpac in relation to other properties.  He seeks that the wife pay the balance of the proceeds of sale following application of that previous paragraph to a “suitor’s fund in the Court”.  I presume that means the standard order to be paid to an interest bearing account in the name of the Registry Manager.

11. In relation to the WorkCover subpoena, I give leave to the wife to issue a subpoena to WorkCover in relation to financial matters concerning the husband, provided the same is served upon WorkCover within seven days from today and made returnable before a registrar at a date before 17 June 2013.

12. In relation to the hearing before me on 17 June 2013, the wife is to file and serve, within 10 days from today, an affidavit providing full particulars of her current financial circumstances and an affidavit of discovery to which are annexed all relevant documents, including, but not limited to, all evidence and documents in relation to her financial circumstances, living expenses and up-to-date particulars of any debts and that includes documents in relation to do so.

13. Similarly, within 10 days from today, the husband is to file and serve an affidavit setting out full particulars of his current financial circumstances and an affidavit of discovery with documents annexed including but not limited to all evidence and documents relating to the motor vehicle referred to in the wife’s affidavit, the use of the same and the source of the funds for his living expenses and travel to Queensland during 2013, all WorkCover claim payments and employment particulars and all taxation particulars.

14. It is to be noted that failure to comply with these orders may result in the Court drawing adverse conclusions of the material which would be relevant but has not been included.

15. The issue in relation to the indebtedness to Westpac is a complex one.  These parties have borrowed monies over the years from Westpac and have been unable, for many years now, to come to any sensible arrangement in relation to the ongoing debts due to Westpac.  Westpac is an independent body, not a party to these proceedings, and should not be disadvantaged by the parties’ inability to negotiate a sensible outcome.

16. The wife is proposing that she be given further time to raise funds to pay the amount which is being called for by Westpac, namely $31,200 or $45,743 referred to in the letter, exhibit 56.

17. The difficulty, however, is that this is based upon the wife being able to continue to meet the payments due to Westpac which would require the husband vacating the Town E property to allow the wife to reside there, rent free.  The husband has been in occupation of that property and has not been paying debts.  I await the affidavit of the husband to indicate how much he has paid in reduction of the Westpac loans since he has been in receipt of WorkCover and wages.  That will need to be determined after I have heard the evidence and it has been appropriately tested.

18. In relation to the issue therefore under the interim orders that I should make, I have to take into account what is just and equitable in all the circumstances.  Because the parties are unable to come to any sensible arrangement or reach any reasonable agreement, it would appear that there is no option but for the property at Town D, being the block of land, to be sold, even though the wife seeks to retain that property. 

19. The substantial debts owing to the Westpac Bank would appear to be the matter which should be given priority rather than the wife’s wish, taking into account the breakdown in any sensible negotiations between the parties.  I am therefore proposing to order that the wife sell the property at Town D being the property at lot …, C Street, Town D for a price not less than $460,000, such sale to be the subject of settlement not later than 31 July 2013. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 30 May 2013.

Associate: 

Date:  5 June 2013