Taylor and Clayton (No. 2)

[2017] FamCA 238

FAMILY COURT OF AUSTRALIA

TAYLOR & CLAYTON (NO. 2) [2017] FamCA 238

FAMILY LAW – PRACTICE AND PROCEDURE – PROPERTY – Interim – Expedition – Where the husband seeks an expedition of the final property settlement proceedings – Where the husband’s application for expedition is dismissed.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Taylor

RESPONDENT: Mr Clayton

FILE NUMBER: …

DATE DELIVERED: 13 April 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 7 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson, SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Kirk, QC

SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

Orders

1. The husband’s application for expedition be dismissed.

2. In the event the matter has not resolved, the matter be placed in Justice Watts’ docket for judicial management at the conclusion of the resolution phase of the proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Taylor & Clayton (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: …

Ms Taylor 

Applicant

And

Mr Clayton

Respondent

REASONS FOR JUDGMENT

1. Senior counsel for the husband made an application for expedition of the final property settlement proceedings. Senior counsel for the wife did not oppose the application.

2. Senior counsel for the husband emphasises the heavy financial burden that has been placed upon the husband as a result of the orders made on 31 March 2017. He speculates that the husband’s loss of his employment or a significant interest rate increase would require the property which the wife and the children will shortly occupy (the E property) to be sold urgently.

3. The husband further submits that the wife does not have a realistic chance at a final property hearing of retaining the E property and accordingly an interest only borrowing (if obtained) and the continued ownership of that property could involve considerable waste, arising from interest payments and the payment of other costs. Senior counsel for the husband also submits that whilst the parties are waiting for a final hearing, property values in Sydney may fall.

4. I have no evidence before me that there is some likelihood the husband would lose his employment. He has a contract that currently extends for some considerable period. The arguments in relation to interest rate increases and falling property values is speculative. The Reasons of 31 March 2017 demonstrate that the husband still has some capacity to handle increases in interest rates and he has been ordered to do so. The bank has valued the E property into which the wife is moving which was bought off the plan over a year ago at almost the same amount as the parties are paying for it. In the event that the doom predicted by senior counsel for the husband comes to pass, the husband has the ability to come back to court to seek a variation of the interim orders of 31 March 2017 on the basis of significantly changed circumstances.

5. I have already, in the Reasons of 31 March 2017, dealt with the argument that the wife has no realistic chance to retain this property on any property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth). As stated at [43] of the judgment:

   The husband argues that the [E] property should be immediately sold as there is no chance that the wife would be able to achieve a property settlement order that would allow her to retain the [E] property. The wife at the final hearing wishes to argue that part of the husband’s income stream has a value of $.... Apart from that income stream, the husband otherwise currently has additional earnings of $.... If the wife was seeking the whole of the value of the [E] property in the property settlement, it is less than 100 per cent of the pool of assets on her case. Whilst at first sight it seems to be a claim that is probably outside a reasonable range of results, I do bear in mind that the husband would still have an earning capacity of about $... a year that the wife could point to pursuant to s 79(4)(e) of the Family Law Act 1975 (Cth) (“the Act”). I am consequently not prepared at this point to make an interim order based on a finding, which I am invited to make by senior counsel for the husband, that there is no possibility that the wife would receive the new property.

6. The orders made by consent and without admissions on 7 April are aimed at further buttressing against any possible risk (if in fact there be any) that future behaviour by the wife might jeopardise the terms of the husband’s employment contract.

7. Whilst senior counsel for the wife did not oppose the application for expedition, he referred to the court’s duty to have regard to the interests of all litigants and submitted it is hard to see how it could be fairly said that there are features in this case that would give it priority over other matters waiting to be heard. There is force in that submission. 

8. [Paragraph omitted for publication purposes]

9. Those concerns arise from the possible exposure of the children to a long and protracted period of instability and uncertainty about their future. On the material presented, it seemed on its face that the children … had been embroiled by their parents in the dispute in relation to the future of the E property. Text messages sent by V to her father about the new house, including whilst he was at court on 27 March 2017, is some indication of the extent to which V has become embroiled in the parental conflict. Having regard to some of the extreme comments the children have made to their father to date in relation to their attitudes towards him if they are unable to continue to live in that property, there will be a continuing period of instability in their lives whilst the cloud of that uncertainty hangs over their heads.

10. The financial affairs of the parties do not seem to be particularly complex. There may be an issue in relation to the valuation of the new property and whether or not part of the husband’s income stream can be treated and valued as property.

11. Whilst I find there is no basis to expedite this matter, it is with a focus on the wellbeing of the children that I have on balance decided to case manage the matter. This does not mean however that the final hearing of the property proceedings will necessarily be given any particular priority in my docket.

12. The parties have been ordered to attend the Child Responsive Program. The parties may be required to attend a conciliation conference. The matter can be relisted for mention before me in the event that the matter is unresolved and the resolution phase of the proceedings has concluded.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 13 April 2017

Associate: 

Date:  13.4.2017