Silver and Woden

[2015] FamCA 6

FAMILY COURT OF AUSTRALIA

SILVER & WODEN [2015] FamCA 6

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife seeks the sale of the former matrimonial home – Where the wife seeks an interim costs order – Where the wife seeks interim spouse maintenance – Where the wife seeks to collect various personal items from the former matrimonial home – Where husband has no funds to pay the proposed interim costs order – Where the wife is the full-time carer of the parties’ child – Where an order is made for the payment of interim spouse maintenance.

Family Law Act 1975 (Cth) s 72

APPLICANT: Ms Silver

RESPONDENT: Mr Woden

FILE NUMBER: WOC 367 of 2013

DATE DELIVERED: 15 January 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 12 January 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Bailey Mullard Lawyers

SOLICITOR FOR THE RESPONDENT: Respondent In Person

Orders

1. Pending further order:

   1.1That the husband make available for collection by the wife such of the following items which are currently located at the property … G Street, Town H in the State of Queensland within three months of the date of these orders:

   1.1.1Art deco silky oak mirror;

   1.1.21940’s China cabinet;

   1.1.3Library of books;

   1.1.4Her cooking and household items including crockery (vintage);

   1.1.5Her washing machine;

   1.1.6B’s toys and momentos (baby clothes and items of nostalgic value);

   1.1.7Personal journals and diaries;

   1.1.8B’s bed frame and dressing table and bassinet;

   1.1.9Her desk;

   1.1.10Cane daybed;

   1.2That the husband cause these items to be placed in a secure location in the Town H area and advise the address thereof in writing to the solicitor for the wife.

2. 2.1      That the husband pay to the wife interim spouse maintenance in the sum of $200 per week.

   2.2That the husband cause such payments to be lodged into a bank account nominated in writing by the solicitor for the wife, with the first such payment to be made no later than seven days of the date of these orders.

3. That otherwise, all outstanding Applications in a Case and Responses to Applications in a Case are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Silver & Woden 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 SYDNEY

FILE NUMBER:  WOC 367 of 2013

Ms Silver

Applicant

And

Mr Woden

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. By an Application in a Case filed on 14 October 2014 the wife, Ms Silver, sought the following orders:

   1.That within seven (7) days of the date of these Orders the Respondent shall do all things and sign all documents necessary to ensure that the property situate at and known as … [G Street, Town H] Queensland, be listed for sale in the amount of not more than $900,000.00.

   2.That the [Town H] property be marketed for sale by [C] Real Estate.

   3.That the Respondent shall accept any offer for purchase by private treaty in excess of $800,000.00.

   4.That in the event that the [Town H] property is not sold by private treaty within three (3) months of listing then the Respondent shall do all things to have the property listed for sale by auction. That in the event that the property does not sell at auction the Respondent shall accept any offer for purchase (including bids) in excess of $750,000.00.

   5.That the Applicant be provided with authority to discuss and be provided with information in relation to any aspect of the sale process with the Agent, Auctioneer or conveyancer/solicitor conducting the settlement of the sale and this Order shall serve as providing such authority.

   6.That the proceeds of the said sale shall be disbursed in the following manner and priority:

   6.1Payment of agent’s commission and advertising expenses and legal expenses of the sale.

   6.2Payment of costs incurred, if any, in relation to the auction.

   6.3Discharge of the Mortgages to National Australia Bank.

   6.4The balance then remaining, if any, to be deposited into a controlled monies account held in the parties joint names and conducted by the solicitor for the Applicant

   7.That from the date of these Orders and pending sale of the [Town H] property the Respondent continue to pay, as they fall due, all regular instalments in respect of the mortgage, statutory rates and charges, utilities, house and contents insurance, and the outgoings including water rates, council rates and the like in respect of the [Town H] property and the Respondent hereby indemnify and keep indemnified the Applicant in respect of such payments.

   8.That the Applicant be authorised to attend at the [Town H] property to collect such of the following items that remain at that property at any time prior to the settlement of the sale provided that such items are made available for valuation if sought:

   8.1Art deco silky oak mirror;

   8.21940’s China cabinet;

   8.3Library of books;

   8.4Her cooking and household items including crockery (vintage)

   8.5Her washing machine

   8.6[B’s] toys and momentos (baby clothes and items of nostalgic value)

   8.7Personal journals and diaries

   8.8[B’s] bed frame and dressing table and bassinet

   8.9Her desk

   8.10Cane daybed

   9.That within ninety (90) days of the date of these Orders, the Respondent do all such acts and things as are necessary to pay to the Applicant’s Solicitors, Bailey Mullard Lawyers, the sum of $5,000.00, such sum to be utilised on account of costs of the Respondent Mother in these proceedings by way of interim costs order.

   10.That pursuant to Section 74 of the Family Law Act the Applicant Father pay to the Respondent Mother by way of interim spouse maintenance the sum of $200.00 per week.

   11.The spouse maintenance referred to in Order 10 shall be paid into the account as directed in writing by the Applicant or her solicitors.

   12.The first payment of spouse maintenance to be made on or before the Monday immediately following the making of these Orders and thereafter on the Monday of each week.

   13.That the Respondent pay the costs of the Applicant of this Application in a Case, as certified under the Family Law Rules.

2. By a Response to an Application in a Case filed on 7 January 2015, the husband, Mr Woden, sought the following orders:

   1.The property … [G Street, Town H] remain the property of [the husband] and not be the subject of an order to be sold.

   2.The applicant be denied access to the property … [G Street, Town H], unless under the supervision of [the husband].

   3.That the applicant in this application pay her own costs as pertains to this matter.

   4.That there be no spouse maintenance payable by the respondent in this application.

3. During the course of the interim hearing, the husband indicated that he has no objection to the wife taking possession of the items listed in paragraph 8 of her Application in a Case.  The parties agreed that the husband will place these items at a specified location in the vicinity of the [Town H] property for collection by the wife.

BACKGROUND

1. The husband was born in 1951 and is presently 63 years of age.  The wife was born in 1985 and is currently almost 30 years of age.  The parties married in June 2010 and were divorced in July 2013.

2. The parties have one child, B, (“the child”), who was born in 2008 and is currently six years of age.  The child lives with the wife and, apparently, has spent no time with the husband for approximately two years.

3. The husband owned the Town H property prior to the marriage.  On 12 June 2014 a registered valuer reported that the property is worth $800,000, on the basis of a non-urgent sale.  According to the wife’s affidavit of 7 October 2014, the property is encumbered by two mortgages which amount to a total liability of approximately $970,000.  In his Financial Statement of 25 November 2013, the husband attributed a total figure of $980,000 to these two mortgage debts. 

4. In December 2013 the husband listed the Town H property for sale at a price of $1,100,000.  In his affidavit of 7 January 2015 the husband deposed that he wishes to retain the property upon the conclusion of these proceedings.  During the interim hearing he explained that he listed the property for sale at a time when he expected that he would move to Sydney to spend time with the party’s child on a regular basis.  He now believes that he will not be permitted to do so, thus he intends to return to Town H.

5. On 6 June 2014 the Child Support Agency issued an assessment, pursuant to which the husband is required to pay approximately $150 per week.  This amount was calculated on the basis that the husband has an adjusted taxable income of $70,266 per annum and the wife has 100 per cent of the care of the child.

6. According to her Financial Statement of 7 October 2014 the wife’s income consists solely of social security benefits and child support.  In his submissions the husband said that his current taxable income is approximately $70,000 per annum. 

7. The husband holds interests in a number of corporate entities.  It appears that part of the mortgage debt secured on the title to the Town H property was incurred in the course of his acquisition of these interests.

CONSIDERATION

Sale Of The Town H Property

1. As noted the available evidence indicates that there is no equity in the Town H property and, in fact, a sale is likely to result in a residual debt to the mortgagee.  It thus seems to me that there is no utility in an order for sale of this property, prior to final resolution of the financial issues between the parties.  A sale simply will not generate liquid funds and would thus create no benefit for either party.

2. Additionally, the husband is entitled to pursue his wish to retain this property.  I cannot say, at this point in the proceedings, that he would be unable to refinance his corporate interests and the Town H property mortgage to achieve that purpose.  Similarly, I cannot exclude the possibility that he may be able to obtain funds from a non-commercial source to enable him to retain this property.

3. For these reasons, I decline to order a sale of the Town H property at this point in the proceedings.

Collection Of Items By The Wife From The Town H Property

1. As noted above, the parties agreed during the interim hearing that the wife may take possession of such items listed in paragraph 8 of her Application in a Case which remain in the Town H property.  The husband maintained that the wife has already attended the property and removed some items, without his permission.  There was no evidence to that effect but the husband indicated that he is prepared to travel to the premises and place the specified items at an identified location.

Interim Costs

1. During submissions, the legal representative for the wife said words to the effect “The wife seeks a lump sum of $5,000 as interim costs.  That is not broken down but is an attempt to move things along”.  The wife maintained that the husband failed to make proper disclosure and did not comply with court orders from time to time.  On behalf of the wife, it was contended that she has been put to unnecessary expense by these actions on the part of the husband.  These alleged actions by the husband were detailed in the wife’s affidavit of 7 October 2014.

2. The legal representative for the husband pointed to no fund from which he could pay a lump sum of $5,000.  His Financial Statement made no reference to any savings and no document was tendered to show a credit balance in a financial institution.  In these circumstances I cannot see my way clear to making any order that the husband pay to the wife a lump sum on account of interim costs. 

Interim Spouse Maintenance

1. The wife sought an order that the husband pay interim spouse maintenance in the comparatively modest sum of $200 per week.  The husband opposed the making of any order for spouse maintenance.

2. The husband appeared to be under the impression that the wife is not entitled to spouse maintenance because she is unable to support herself due to “a pre existing condition of depressive/hyper bipolar”. It thus seems that the husband conceded that the wife is unable to support herself adequately for the purposes of s 72 of the Family Law Act 1975 (Cth) (“the Act”). It is of no moment that the wife suffered from this alleged condition prior to the parties’ marriage.

3. In any event, the Child Support Agency assessment and the husband’s evidence suggest that the wife has total responsibility for the care of the parties’ child.  Additionally the wife is in receipt of an income tested pension, allowance or benefit, which must be disregarded for present purposes.

4. For these reasons, I find that the wife is unable to support herself adequately for the purposes of s 72 of the Act. The next issue is whether the husband has the capacity to pay interim spouse maintenance of $200 per week or a lesser sum.

5. The husband’s Financial Statement of 25 November 2013 disclosed a gross weekly salary of $1,537, upon which he pays tax of $211.  The husband’s weekly income amounted to $2,050, consisting of salary, rental generated by the Town H property and superannuation.  He deposed further to total expenditure of $2,157 per week. 

6. In his Financial Statement the husband deposed that he pays “rent” of $250 per week.  In an application to Toyota Finance dated 12 November 2012, however, the husband signed a document which indicated that he lives with his son and pays monthly rental of $1 (Exhibit 6).  I do not accept that the husband pays rent of $250 per week. 

7. In his Financial Statement the husband deposed that he pays child support of $294 per week.  As noted, however, the husband’s current assessment requires him to pay $150 per week. 

8. I thus find that the husband’s total weekly expenditure amounts to $1,763, which is a surplus of $287 per week over his income of $2,050.  In these circumstances, I find that the husband has the capacity to pay interim spouse maintenance of $200 per week and I will so order. 

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 15 January 2015.

Legal Associate: 

Date:  15 January 2015