Browne & Green (1999) FLC 92-873
Chang and Su [2002] FamCA 156
Gabel v Yardley (2008) 40 FamLR 66; FLC 93-386
Harris and Harris (1993) FLC 92-378
Hickey & Hickey & the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Omacini & Omacini (2005) FLC 93-218
Stanford & Stanford [2012] HCA 52
Strahan v Strahan (Interim Property Orders) [2009] FamCAFC 166
Watson & Ling [2013] FamCA 57

APPLICANT:

Mr Toft

RESPONDENT:

Ms Royce

FILE NUMBER:

MLC

1819

2013

DATE DELIVERED:

28 May 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

9 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Strum

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Ms Stoikovska

SOLICITOR FOR THE RESPONDENT:

Clancy & Triado

Orders

That the husband and wife do all things necessary to release to the husband $400,000 by way of partial distribution of property.
That save as to costs, the interim application and response are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 11 June 2013 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 25 June 2013 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Toft & Royce 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 1819 of 2013

Mr Toft

Applicant

And

Ms Royce

Respondent

REASONS FOR JUDGMENT

By application filed 14 March 2013 Mr Toft (“the husband”) seeks $460,000 to be paid to each of he and Ms Royce (“the wife”) by way of a partial distribution of property from the balance of the net proceeds of the sale of their home. There is currently $1.445 million in the husband’s solicitor’s trust account.
By her response filed 9 May 2013, the wife sought that the funds remain in trust until final settlement.
Thus, the wife sought the husband not have any access to those funds and in so doing, rejected the husband’s proposal that she should have a similar amount or any distribution at all. At the conclusion of submissions, counsel for the wife…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Toft & Royce

Details

AGLC: Toft & Royce [2013] FamCA 372
Case: [2013] FamCA 372
Decision Date

CaseChat Overview and Summary

In *Toft & Royce* [2013] FamCA 372, the Family Court of Australia considered an application by the husband, Mr Toft, for a partial distribution of property from the net proceeds of sale of the parties' former home, which amounted to $1.445 million held in his solicitor's trust account. The wife, Ms Royce, opposed any distribution, seeking that the funds remain in trust until final settlement.

The primary legal issue before the Court was whether it was just and equitable to make an interim property order under section 79 of the *Family Law Act 1975* (Cth), authorising a partial distribution of funds. This required the Court to consider the principles governing interim property orders, particularly in light of the High Court's decision in *Stanford & Stanford* [2012] HCA 52, and the Full Court's decision in *Strahan v Strahan* [2009] FamCAFC 166. The Court also had to assess the available evidence, which was largely presented on the papers, to determine the parties' respective financial positions and the appropriateness of the husband's requested distribution.

The Court reasoned that while interim property orders are exceptional, they can be made where it is just and equitable to do so, with the overarching consideration being the interests of justice. Applying the *Stanford* approach, the Court first identified the parties' legal and equitable interests and then considered whether it was just and equitable to alter those interests. Despite the wife's concerns about disclosure and the husband's expenditure of funds post-separation, the Court found a justifiable basis to make an order in the husband's favour. The Court noted that it was unable to make significant findings of fact due to the evidence being untested, but concluded that an interim distribution of $400,000 to the husband was appropriate in the circumstances.

The Court ordered that the husband and wife do all things necessary to release $400,000 to the husband by way of a partial distribution of property. Save for costs, the interim application and response were otherwise dismissed. The Court also made specific orders regarding the process for any applications for costs.

Orders