Sherman and Statham

[2009] FamCA 776

FAMILY COURT OF AUSTRALIA

SHERMAN & STATHAM [2009] FamCA 776

FAMILY LAW – PROPERTY - Wife seeks orders under s79A(1)(a) and (b) and s44(3) of the Family Law Act 1975, that leave be granted to commence spousal maintenance proceedings out of time – Wife seeks to have consent orders set aside
FAMILY LAW – PRACTICE AND PROCEDURE – Husband’s section 118 application
FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

Keith & Soukis [2007] FamCA 1017

APPLICANT: Ms Sherman

RESPONDENT: Mr Statham

FILE NUMBER: NCF 274 of 2004

DATE DELIVERED: 27 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 15 December 2008 and by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Foster

SOLICITOR FOR THE APPLICANT: Dimocks Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Brzostowski SC

SOLICITOR FOR THE RESPONDENT: Dobinson Davey Clifford Simpson

Orders

1. The wife’s application under section 79A is dismissed.

2. The wife is granted leave to commence proceedings for spouse maintenance against the husband provided she files an application within 28 days from the date hereof.

3. The husband’s application for an order under section 118 of the Family Law Act is dismissed.

4. Any costs application arising from the orders made herein is to be filed with supporting affidavit and written submissions within twenty-eight (28) days from the date hereof.

5. In the event of any cost application being served on either party such party is to file any written submission opposing such application within fourteen (14) days of service of the application.

6. The matter is to be listed before me in chambers at the conclusion of thirty (30) days from the date hereof to ascertain if any cost application has been filed.

IT IS NOTED that publication of this judgment under the pseudonym Sherman & Statham is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  NCF274/2004

MS SHERMAN

Applicant

And

MR STATHAM

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was listed for final hearing before me on 28 August 2006 in relation to parenting and property. Final orders were subsequently made by consent on 29 August 2006. The property orders made that day provided for the wife to transfer to the husband her interest in the property at M (“the M property”). The order required the husband to pay the wife $70,000 within 30 days. That sum was to be paid to the wife’s solicitor. The husband was required to indemnify the wife in relation to specific liabilities. The husband was to further pay the wife 22% of the net proceeds of sale of the husband’s shares in F Company Pty Ltd (hereinafter “F Company”). The husband was to deduct any GST, capital gains tax and any personal taxation payable on dividends or deemed dividends, in relation to the shares, from the sale proceeds prior to calculating the wife’s 22% interest. No time limit was specified for the sale of the shares. 

2. On 19 October 2006…