TELFORD & TELFORD

[2013] FamCA 126

FAMILY COURT OF AUSTRALIA

TELFORD & TELFORD [2013] FamCA 126

FAMILY LAW – ORDERS –  Application to vary or set aside orders dismissed – All extant interim orders dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Telford

RESPONDENT: Ms Telford

FILE NUMBER: MLC 9259 of 2011

DATE DELIVERED: 1 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 30 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kanarev

SOLICITOR FOR THE APPLICANT: Alphastream Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. The wife’s Applications in a Case filed 11 December 2012 and 12 December 2012 together with the husband’s Response filed 20 December 2012, his Application in a Case filed 21 December 2012 and the wife’s Response filed 14 January 2013 be and are hereby dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Telford & Telford 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 9259 of 2011

Mr Telford

Applicant

And

Ms Telford

Respondent

REASONS FOR JUDGMENT 

1. This matter was listed for Mention before me pursuant to my orders made 29 November 2012 in order to ascertain what if any issues remained outstanding and what is required to prepare the matter for final hearing.  

2. On that occasion I reserved liberty to the wife to apply to vary or set aside my order with respect to the sale of the property at L Street, Suburb C, such application to be supported by an affidavit setting out her capacity to make the necessary loan repayments in relation to that property.

3. On 11 December 2012 the wife filed an Application in a Case in which she sought interim financial and parenting orders as follows:

   Interim Financial Order sought:

   (1)     Paragraph 20 and 21 of orders given on the 29^th of November for selling the matrimonial home at [Suburb C] is discharged.

   (2)     Orders made under 6c and 6d marked ordered on the 2^nd of July 2012 are discharged.

   (3)     Spousal maintenance of $800 per week is to be paid to the wife by the husband and backdated from 13 January 2012. This spousal maintenance to stop only on 30 June 2014.

   (4)     If above (4) is not granted then adequate sum (as the court fits) is paid to the wife by the husband as spousal maintenance.

4. On 12 December 2012 the wife filed a further Application in a Case in which she sought the following orders:

   (1)     Stay order be made for the 20 and 21 of orders given on the 29^th of November until the final decision is made regarding the selling of the matrimonial home at [Suburb C].

   (2)     Paragraph 20 and 21 of orders given on the 29^th of November for selling the matrimonial home at [Suburb C] is discharged.

5. Her Applications were supported by affidavits filed on 11 December 2012, 12 December 2012 and an affidavit sworn by the husband and filed on 12 December 2012.

6. On 20 December 2012 the husband filed a Response to the wife’s Application in a Case, supported by an affidavit filed the same day. On 21 December 2012 he filed an Application in a Case seeking orders that the Registrar of this Registry of the Court sign the agent’s authority with respect to the sale of Suburb C.

7. On 14 January 2013 the wife filed a Response to the husband’s Application in a Case supported by a further affidavit.

8. I have previously made interim parenting orders and dealt with the interim applications with respect to both the sale of Suburb C and the wife’s application for spousal maintenance.

9. As I have previously noted the conduct of the litigation is chaotic. The wife’s applications and her affidavits are repetitious and she seeks orders with respect to matters that have already been dealt with. The husband for his part seeks an order that the Registrar sign documents when I have already made orders with respect to that matter.

10. Apart from the question of whether my order for the sale of Suburb C should be set aside to which I will refer in these reasons there is no new evidence which would lead me to conclude that I should reconsider either the children’s or financial issues.

The Sale of Suburb C

1. The wife in her affidavit in support of her application that I should set aside or vary my order with respect to the sale of Suburb C deposes to a number of what she says are feasible options which would demonstrate that she has the capacity to pay the mortgage.

2. They are in summary as follows:

   a)That the husband pay $800 per week spousal maintenance to the wife;

   b)That she rent part of the house for which she says she will receive approximately $300 per week conditional upon her putting in blinds and landscaping the property which she says will cost approximately $10,000;

   c)That the wife obtain employment although she herself says that she cannot do so this year as she is completing a postgraduate qualification at university;

   d)That she work as a home tutor for which she says she envisages earning $3000 per month although she also concedes that she is unable to guarantee this income and that there will be an initial cost of setting up her business;

   e)That the husband pay spousal maintenance and she obtain an interest free loan from her parents to make up the difference;

   f)That she borrow what she needs from her parents although I note that she deposed that she did not want to do so as she is already in debt to her parents; and

   g)That the husband pay spousal maintenance, she partially rent the house and that she otherwise borrow the balance from her parents.

3. I have already determined the wife’s interim application for spousal maintenance and I am not satisfied that the wife’s proposals for either the partial renting of the property or her proposed tutoring will with any certainty provide the funds she needs to meet the mortgage.

4. Although the wife has filed an affidavit sworn by her father in support of her application there are a number of issues in relation to his evidence. He says that he will “financially support and help [the wife] and [the child] for all of their basic needs/essential requirements at nominal interest rate”. He made no mention of the mortgage payments or his capacity to meet those payments. Although the wife’s father was in Court and said that he would pay the mortgage payments those payments are, on the wife’s best case scenario , in excess of $2700 per month. In addition there are substantial arrears and maintenance costs.

5. Before I would be prepared to either vary or set aside my order for the sale of Suburb C I would need to be satisfied that the mortgage payments will be paid and that an order for payment of the mortgage is capable of enforcement.  I would also need to be satisfied that the wife’s father is prepared to be joined as a party to the proceedings and would consent to an order that he pay the mortgage payments, that he has the capacity to pay the mortgage and that some accommodation can be reached with the mortgagee with respect to the arrears so as to allow the wife to retain the property. Before I would make orders binding the wife’s father I would also need to be satisfied that he has obtained independent legal advice and understands his obligations pursuant to those orders.

6. On the basis of the evidence I am not satisfied that I should either vary or set aside the order for the sale of the property and I propose to dismiss the wife’s extant interim applications.  That being said the wife indicated that she had applied for a job and would know within a matter of weeks whether her application had been successful. It seems unlikely that the property will sell prior to that occurring and if in fact the wife’s application was successful that might be grounds for me reconsidering the sale of the property. There is also likely to be time for the wife’s father to obtain the necessary advice and to file material demonstrating his capacity and willingness to meet the mortgage payments.

7. The wife did not make any submissions with respect to her application or the basis upon which she sought a stay of my order and I note that there is no appeal on foot.

8. I have already made an order in relation to the Registrar signing documents with respect to the sale of Suburb C and no further order is necessary. On that basis I also propose to dismiss the husband’s application in a case.

9. The matter has been listed for final hearing as the second matter on 1 May 2013 and orders have been made for the filing of material and the preparation of a Family Report. Pursuant to my orders the parties have liberty to approach my Associate in writing for an urgent listing of the matter if required however the filing of further interim applications could potentially delay the final hearing.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on1 March 2013.

Associate: 

Date:  1 March 2013