Tomson & Tomson

[2012] FamCA 139

FAMILY COURT OF AUSTRALIA

TOMSON & TOMSON AND ORS [2012] FamCA 139

FAMILY LAW - PROPERTY SETTLEMENT - Power under which Order to be made - Where the parties declined to make further submissions as to the application of the power to make interim property Orders rather than the spousal maintenance power to support the Order

Family Law Act 1975 (Cth)

APPLICANT: Ms Tomson

1st RESPONDENT: Mr Tomson

2nd RESPONDENT: Mr Spencer

3rd RESPONDENT:  G Pty Ltd

FILE NUMBER: SYC 4684 of 2011

DATE DELIVERED: 20 March 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Kent J

HEARING DATE: 2-3 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bridger

SOLICITOR FOR THE APPLICANT: Steven Stefanou & Co

SOLICITOR FOR THE 2ND RESPONDENT: Matthews Folbigg Pty Ltd

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tomson & Tomson and Ors 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: SYC 4684 of 2011

Ms Tomson

Applicant

And

Mr Tomson and Mr Spencer and  G Pty Ltd

Respondents

REASONS FOR JUDGMENT

1. On 2 November 2011, I heard and determined the applications for interim Orders.

2. For reasons then delivered ex tempore, I made Orders for the Wife to receive proportions of the net rent and profits in respect of commercial real properties referred to in the Orders and reasons.

3. The Orders and reasons reflected that the Orders were made in reliance upon the power to order spousal maintenance as that was how the matter was addressed in argument by both parties (i.e. the Applicant Wife and the Respondent trustee in bankruptcy).

4. Following the hearing and the making of those Orders and delivery of the ex tempore reasons, I was concerned that the Orders made in reliance upon the maintenance power, rather than the power to make an interim property Order, may therefore be infected by error. I sought to provide the parties with an opportunity to be heard for that purpose and the matter was re-listed on 3 November 2011.

5. On 3 November 2011, at the further hearing for the purpose referred to, the parties were provided with the opportunity to provide written submissions if any party wished to be heard on the matter raised.

6. In the event, the Court was subsequently advised by both parties that neither wished to be heard on the matter raised. In those circumstances, it is not appropriate to consider further the question of whether the power to make interim property Orders, rather than the power to make spousal maintenance Orders, is the source of power for the Orders made on 2 November 2011.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 March 2012.

Associate: 

Date: 20 March 2012