TAGLIERI & URBANO

[2015] FamCA 676

FAMILY COURT OF AUSTRALIA

TAGLIERI & URBANO [2015] FamCA 676

FAMILY LAW – PROPERTY – Partial property settlement – where the wife intends to purchase a more appropriate home for herself and the parties’ children – where the net value of the asset pool is capable of absorbing the proposed distribution – where the husband fails to provide evidence as to outstanding liabilities which would militate against the distribution – where it is just and equitable to order a partial property division – ordered that funds be released to enable the purchase of the home.

Family Law Act 1975 (Vic)

Strahan & Strahan [2009] FamCAFC 166; 241 FLR 1; (2011) FLC 93-466

APPLICANT: Ms Taglieri

RESPONDENT: Mr Urbano

FILE NUMBER: MLC 1425 of 2011

DATE DELIVERED: 25 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 25 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Mr Magee QC

SOLICITOR FOR THE RESPONDENT: LN Christie & Co

Orders

1. That in the event the wife contracts to purchase the property at 1 B Street, Suburb C (“the property”) then from the monies held in trust pursuant to Order 1 of the orders made by this Honourable Court on 3 October 2013, the wife receive by way of partial property settlement the sum of $1,600,000 as follows:-

   (a)Reimbursement of the deposit paid by her to purchase the property by 20 April 2015 or as soon as practicable thereafter;

   (b)The amount required to settle the purchase of the property on the settlement date in cheques directed in the manner requested by the vendor of the property; and

   (c)The residue, if any, to the wife directly.

BY CONSENT

1. That the husband be and is hereby restrained from interfering with the sale and purchase of the property or attending the auction of the property.

BY THE COURT

1. That the wife notify the husband’s solicitor in writing forthwith in the event she contracts to purchase the property.

2. That the husband be at liberty and the wife permit him to lodge a caveat against the property contemporaneously with or after the registration of the transfer of land to the wife.

BY CONSENT

1. That from the monies held in trust pursuant to the order made on 3 October 2013 the sum of up to $800,000 be applied to discharge the mortgage debt registered against 2 B Street, Suburb C.

BY THE COURT

1. That orders 1 and 2 of the orders made on 9 May 2013 remain in full force and effect.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Taglieri & Urbano 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 MELBOURNE

FILE NUMBER: MLC 1425 of 2011

Ms Taglieri

Applicant

And

Mr Urbano

Respondent

REASONS FOR JUDGMENT

1. The matter before me today is an application in a case filed on behalf of the wife on 23 March 2015.  That application sought a payment to the wife in the sum of $1.6 million by way of partial property settlement, The wife proposes that that sum be applied by her towards the purchase of a property in B Street, Suburb C. 

2. With leave of the Court, the husband has this day filed a response to application in a case and affidavit in support of that response.  The husband opposes the orders sought by the wife. 

3. The husband seeks an order that funds held on trust for the parties be applied first to the discharge of a mortgage secured over the former matrimonial home at 2 B Street, Suburb C, being an amount in the sum of approximately $800,000, and further, that there be a distribution to each of the parties in the sum of $400,000 by way of partial property settlement. 

4. The matter was stood down shortly after the matter was called on today to enable discussions to occur between the parties to ascertain whether there was some ability to resolve the matter. 

5. Unfortunately, that has not occurred and submissions have been made on behalf of each of the parties with respect to their positions. 

6. At the commencement of the submissions for the wife, I was provided with a minute of order now sought by the wife.  That minute provides that she seeks a distribution of up to $1.6 million, such sum to be applied for the purpose of the purchase of a property at 1 B Street, Suburb C which is a property to be auctioned this Saturday, 28 March.  Further, she seeks injunctions restraining the husband from attending at the auction or otherwise interfering with the proposed purchase of that property. 

7. The orders sought would enable the husband to lodge a caveat over the title to the property at 1 B Street immediately upon registration of a transfer of land to the wife.  Finally, the wife seeks orders for the release of a sum of up to $800,000, such sum to be applied towards the discharge of the mortgage secured over the title to the former matrimonial home.  That is a matter that is agreed between the parties. 

8. The matter has been brought on urgently due to the imminent auction of the 1 B Street property.

9. In her affidavit filed in support of her application, which is her affidavit filed 23 March 2015, the wife deposes that it is her desire to purchase the property.  She deposes to the fact that the existing residence in which she resides with the parties’ two children is a property which requires some significant repair including the replacement of the roof.  She points to the fact that the parties have substantial assets.  She provides in her affidavit a table of assets which include the proceeds of settlement of Supreme Court litigation which, as at 5 March 2015, totalled slightly in excess of $5 million. 

10. She deposes that that is a ready source of funds to enable her to proceed with the purchase of the property.  Exhibit ET3 to that affidavit is a letter forwarded by the wife’s solicitors to the husband’s solicitors, dated 12 March 2015, in which she seeks the husband’s consent to the release of funds for the purchase of the property.  Exhibit ET4 to that affidavit is the response from the husband’s solicitors, dated 13 March 2015, wherein consent to the wife’s proposal is refused and an alternate position is put in terms of the application of the funds held on behalf of the parties. 

11. The wife alleges that the parties’ pool of assets exceeds $9 million.  She says that the pool is something in the order of $9,713,000. 

12. The husband in his affidavit alleges a number of liabilities which are not set out in the wife’s material.  In his affidavit at annexure GMU3, he sets out a table of property and superannuation of the parties.  The husband’s position is that, in fact, the pool of assets and superannuation available to the parties is slightly in excess of $5.8 million. 

13. The parties have each recently filed amended applications to the court in anticipation of the final hearing which is likely to occur in August this year. 

14. The wife in her amended initiating application seeks an adjustment of the parties’ interest on the basis that she receive fifty-seven and a half per cent of the pool of assets and that the husband receive forty-two and a half per cent of the pool of assets.  The husband in his amended response to initiating application, filed 6 March 2015, puts the position whereby the pool of assets be divided on the basis that he receive 65 per cent of the assets and that the wife receive 35 per cent of the assets.  Thirty-five per cent of what the husband asserts to be the value of the asset pool is in excess of $2 million. 

15. It is said on behalf of the husband that, taking into account what the wife already has in her possession, her entitlement based on a pool of $5.8 million would in fact be in the order of $1.275 million.  He therefore opposes the orders sought by the wife on the basis that it would result in a payment to her of more than $300,000 in excess of what her entitlements otherwise are. 

16. The two positions of the parties, simply put, are this.  The wife says she wants the funds to enable her to purchase a property in which she and the parties’ children will live.  The husband’s position is that the wife does not have an entitlement to funds as sought by the wife, and that the payment to her of those funds would otherwise exceed her entitlement to a property settlement. 

17. The Full Court of the Family Court in Strahan & Strahan [2009] FamCAFC 166; 241 FLR 1; (2011) FLC 93-466 discuss the various heads of power available to the parties. The Court sets out how the Court is to approach consideration of applications for partial property settlement.

18. In Strahan, the Full Court observed that there was only one exercise of power under section 79 of the Act and it was preferable that there only be one final hearing.  That said, if a party seeks an interim distribution of property or an interim alteration of property interests, a two step process should be followed.  The first step requires a consideration as to whether the jurisdiction should be entertained and, if so, then second the applicant needs to satisfy the court that the necessary requirements for the exercise of the power under section 79 are available to make an order.  There is no need to establish compelling circumstances in order for there to be an exercise of the power. 

19. I am satisfied that it is appropriate in the circumstances of this case to exercise the power.  The parties before the court had a long marriage of some 17 years’ duration.  They have two children.  It is evident by the applications for final relief before me that each has made contributions, although the extent of those contributions is yet to be determined.  That this is so is conceded by virtue of the percentage adjustments that are sought by the husband in his response.  I am further satisfied that in making an order as sought by the wife, the position of the husband will be secure. 

20. If upon a final determination of the matter, the payment provided by the proposed orders is made and exceeds the wife’s entitlement, there will be the ability and there will be a source available to the wife to make the necessary adjustment in favour of the husband. 

21. I am satisfied that it would be just and equitable to make orders for the partial division of property as sought by the wife.  Having regard to the orders sought by each party I am satisfied that the wife is entitled to an alteration of property pursuant to s 79 of the Act.  The husband appears to acknowledge that entitlement having regard to the adjustment sought by him in his Response to Initiating Application,

22. As to the orders sought by the husband with respect to a distribution to him, he alleges that he has a number of debts that require payment at this time.  He asserts that there are taxation liabilities outstanding and creditors of his business.  The difficulty with those submissions this day is that he has sworn an affidavit this morning and has provided scant detail in relation to those matters in that affidavit.  What I have indicated to the husband is that, first, notice needs to be given to the wife of those matters.  I have indicated that if there remains a dispute between the parties as to whether or not those moneys should be paid, that this is a matter that may be raised at the adjourned mention hearing, which is listed before me on 20 April 2015. 

23. However, in circumstances where the wife disputes the debt, where there is no evidence before me as to those debts and where there are serious issues raised by the wife in terms of the question of whether the payment to the husband would exceed his entitlements and further that the payment may result in those moneys being unsecured, I am satisfied that at this point in time it is not appropriate that I release further funds in satisfaction of those debts. 

24. In determining that I will release the funds for the wife to facilitate the wife’s ability to attend the auction of 24 B Street to purchase that property, I am mindful of the fact that the parties have agreed this day to a payment of up to $800,000 to discharge the mortgage over 2 B Street.  I am also mindful of the fact and have regard to the fact that if the wife is successful at the auction of 1 B Street she has indicated to the Court her agreement to a sale of 2 B Street to ensure that there are funds available to the parties for distribution between them in anticipation of the final hearing. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 25 March 2015.

Associate: 

Date:  25 March 2015