TAYLOR & TAYLOR

[2015] FamCA 190

FAMILY COURT OF AUSTRALIA

TAYLOR & TAYLOR [2015] FamCA 190

FAMILY LAW – Application for access to monies held in trust

APPLICANT: Ms Taylor

RESPONDENT: Mr Taylor

FILE NUMBER: BRC 2836 of 2012

DATE DELIVERED: 11 March 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 11 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Mr C.J. Noble

Orders

1. The Applicant’s Application in a Case filed 19 February 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Taylor & Taylor 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 BRISBANE

FILE NUMBER: BRC 2836 of 2012

Ms Taylor

Applicant

And

Mr Taylor

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The Court has before it an Interim Application in a Case filed by Ms Taylor on 19 February 2015.  Pursuant to it, she seeks that the Court authorise a firm of solicitors, B Lawyers, to release the sum of $25,762.85 from the firm’s trust account to pay monies owing by the parties to these proceedings to the National Australia Bank, and that the balance of the funds held by B Lawyers - said to be an amount of $34,608.79 - be paid to her. 

2. This matter is listed for final determination before me on 16 and 17 July of this year.

3. Ms Taylor’s Application rests, in essence, upon her asserted need for access to the funds held in the solicitors’ trust account.  She deposes in her affidavit filed 19 February 2015 to the fact that, as at 4 December 2014, she became unemployed and since then has been living on monies paid to her by her previous employer - which have included her entitlements to holiday and what is described as RDO entitlements.  Ms Taylor says that, apart from the funds paid by her former employer for those entitlements, she has been, and is now, dependent upon receipt on monies from Centrelink in an amount of approximately $460.00 per fortnight.  Ms Taylor’s affidavit contains details of the expenditure of those funds.  It is easy to conclude that she is in significant financial hardship as a consequence of the loss of her employment.  However, that does not provide a basis for this Court to be persuaded to make orders of an interim nature dispersing the property of the parties.

4. Authority such as the Full Court’s decision in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 makes it clear that there is only one exercise of power pursuant to s 79 of the Family Law Act 1975 (Cth) and that it is preferable, in relation to proceedings before the Court in which parties seek property adjustment orders, that there is one final hearing. It is, of course, open to the Court to make a series of interim property orders prior to the final determination of property adjustment proceedings if the Court is so persuaded, taking into account the overarching considering of the interests of justice - the Court must be satisfied that is appropriate to exercise the power to make an interim property order and that any order made on an interim basis is one that is just and equitable in all the circumstances.

5. The evidence of the parties reveals the following: 

   a)their relationship was one of approximately 16 years duration;

   b)they commenced cohabitation in about December 1996, married in 2003 and separated on a final basis in March 2012;   

   c)there are three children of their relationship, currently aged 17, nearly 15, and 12 years of age respectively; and save for the oldest child - who moved to live independently in about the middle of last year - the other children live with the father (the respondent to this Application). 

6. The operation of a previous Order in relation to the youngest child’s time with the applicant has been suspended as a consequence of the Order made by the acting Principal Registrar on 6 June 2014.

7. It is also clear that the monies held in the trust account to which I have already referred amount to the totality of the property of the parties available for consideration in these proceedings.  The only additional asset or entitlement to superannuation and/or pension is the Respondent’s right to receive a payment from the public service.  He gives evidence of this in the Financial Statement filed by him on 26 September 2014.  Additionally, it is clear from that Financial Statement and the Respondent’s affidavit (also filed 26 September 2014), that he is currently in receipt of – or was, at the time that document was filed – a Class A invalidity pension payable by ComSuper in an amount of $1,363.00 and that, according to the contents of his affidavit, it was his intention after September 2014 to draw down a lump sum of about, I think, $70,000.00 in order to make payments and meet liabilities and debts in the manner prescribed in that affidavit.

8. It is, I think, clearly established - even on an interim basis - that neither parties’ financial circumstance could be thought to be secure or significant.  It seems to me that, whilst Ms Taylor’s financial situation may be considered to be more parlous than that of Mr Taylor, his situation is not in any way particularly secure either.

9. The Court must be persuaded, in the circumstances of any case in which interim property orders are sought, that the interests of justice - the overarching consideration - require the making of an order on an interim basis.  As was pointed out during the course of the hearing, the Court is unable to reach firm conclusions about matters which are factually in dispute between the parties at this stage of their proceedings.  Authority makes it clear, however, that in order to be persuaded that an interim order disbursing property of the parties is just and equitable, the Court would needs to:

   a)act conservatively; and

   b)be satisfied that any remaining property would be adequate to meet the legitimate expectations of both parties at the final hearing;  and/or

   c)that an order contemplated to be made on an interim basis would be capable of being reversed or adjusted if, at the final hearing, it was subsequently considered necessary to do so.

10. The brief recounting I have provided of the parties’ financial circumstances makes it abundantly clear that none of those matters could possibly be satisfied in this particular Application.  Whilst Ms Taylor no doubt has a need for access to the funds, it is clear that if orders were made in the terms she seeks there would be no property remaining from which any adjustment could possibly be made - because it is clear that the basis upon which she seeks the money is that it is necessary for her own financial support.  That makes it highly unlikely that any of it would remain and thus be available for further consideration at the final property hearing listed before me in July of this year. 

11. Whilst there may well be here an arguable case for substantive relief, it seems to me that the matters to which I have referred lead inexorably to the conclusion that I have arrived at:  namely, that the Application in a Case filed on 19 February 2015 be dismissed.  I make an order in those terms.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 11 March 2015.

Associate:                 KV

Date:    11 March 2015