TSUI & PADELFORD

[2014] FamCA 96

FAMILY COURT OF AUSTRALIA

TSUI & PADELFORD [2014] FamCA 96

FAMILY LAW – PROPERTY – Interim – Lump sum property settlement – Where wife sought lump sum payment from husband to purchase motor vehicle and to pay rental bond – Where child of marriage lives with wife – Where child has disability and motor vehicle required to transport child – Quantum of lump sum determined by whether it could be recovered from final property settlement – Order for payment of lump sum to wife – Payment to be characterised by consent or by Trial Judge

FAMILY LAW – PROPERTY – Matrimonial home – Sole or exclusive occupation – Whether husband occupied home since 1992 – Where no allegations of family violence – Where wife unwilling to share home with husband – Wife’s application for exclusive occupation dismissed

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where wife unable to support herself –Where no evidence of wife’s assets or earning ability in China – Where wife repaid money to overseas creditors in absence of demand for payment – Where wife established need for periodic maintenance – Where husband has ability to pay – Order for periodic maintenance

Family Law Act 1975 (Cth)

APPLICANT: Ms Tsui

RESPONDENT: Mr Padelford

FILE NUMBER: SYC 442 of 2014

DATE DELIVERED: 10 February 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 10 February 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Marsdens Law Group

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Patrick Lim & Associates

Orders

IT IS ORDERED

1. That the husband pay to the wife by way of interim spousal maintenance the sum of $328 per week the first payment to be made on 11 February 2014 and weekly thereafter.

2. That the husband pay to the wife within 28 days the sum of $10,000, the characterisation of that payment to be a matter for agreement between the parties or in the absence of agreement for the Trial Judge.

3. That the wife’s application for exclusive occupation of the property at C Street, Town B is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tsui & Padelford 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 SYDNEY

FILE NUMBER: SYC 442 of 2014

Ms Tsui

Applicant

And

Mr Padelford

Respondent

REASONS FOR JUDGMENT

1. Before the Court are proceedings brought by the applicant, Ms Tsui, to whom I will refer as “the wife” and the respondent, Mr Padelford, to whom I will refer as “the husband”. The husband and the wife have separated.

2. There is one child of their relationship, M, born in November 2010. It is not disputed that M is a child with a disability which may or may not be in the nature of cerebral palsy. In addition, there is a child of the wife who is not a child of the husband but who lived with the parties during their cohabitation and was supported during their cohabitation by them.

3. Since the parties separated, the wife has left the premises which they currently occupy and now lives with friends. The children live with her.

4. The applications before the Court concern sole occupation, lump sum property settlement and spousal maintenance.

5. Turning firstly, to the application for sole occupation, there is no doubt that the Court has the power to grant an order that one of the parties occupy the property. I accept the submission of Counsel for the husband that the Court would not lightly exclude the registered proprietor from a home and particularly so in circumstances that he has occupied the home with one of his children, not a child of this marriage, since 1992.

6. I accept the submission that there is no allegation of family violence however the wife gives evidence that it would be unbearable for her to return to the home and she has no intention of doing so.

7. In those circumstances, the Court must determine which of the parties has the occupation of the home.

8. The husband is in poor health and also provides accommodation within the home for his daughter, D.

9. The wife has the ability to find other accommodation. She has the obligation to rehouse both of the children although one of the children is not a child of the husband.

10. In all of those circumstances, I am of the view that the husband should be permitted to live in the former matrimonial home. I note that he proposes that the wife, if she wishes, could occupy the upper storey of that property but I do not consider that she should be obliged to do so against her will.

11. Turning then, to the issue of spousal maintenance, the wife seeks an order for $500 per week by way of periodic maintenance. I accept that at least at the present time she meets the threshold in section 72 of the Family Law Act 1975 (Cth) and is unable to support herself.

12. In her Financial Statement she sets out her expenses as being rent of $150 a week and I accept that it is in these circumstances appropriate to attribute the whole of that as being an expense of the wife. Her other expenses in part N of her Financial Statement total $178 therefore the wife has established a need for spousal maintenance on a periodic basis of $328 per week.

13. The wife also seeks an order that the husband pay her a lump sum by way of maintenance which will allow her, she says, to purchase a motor vehicle and to pay a bond on premises which she might rent.

14. I do not accept the wife’s submission that she must live in the Town B area and there is no evidence before me about reasonable rent which she would pay. However, if she is not prepared to move away from the Town B area then the question of the rent she might need to pay is irrelevant. The mother does not have a motor vehicle. She needs to pay a bond and to buy a vehicle which can be used, particularly, to transport M to and from medical appointments. The father is not in a position to provide her with the vehicle which they formerly shared.

15. I am satisfied that the wife has established a need for the payment of a lump sum. The characterisation of that lump sum should be left to the Trial Judge.

16. The issue then, is whether the husband has an ability to pay.

17. The husband conceded that, if the Court were minded to make an order for the payment of a lump sum, then the appropriate amount was $10,000.

18. The husband deposes in his affidavit that he receives $139 per week by way of Newstart Allowance. Within a few months he will be on contract employment in China where he hopes to net approximately $10,000 after the payment of expenses. He has $9,123 in the bank. He has superannuation, which is currently available to him and upon which he can draw, of $319,309.

19. In those circumstances, I find that the husband has an ability to pay both periodic maintenance of $328 per week and a lump sum to the wife of $10,000.

20. I accept the submission of the husband that it would not be appropriate in these circumstances to make an order for more than $10,000 on the basis that the wife has not satisfied the Court, on the evidence currently available, that the payment of a larger sum to her would be recoverable from any property settlement which she might receive.

21. I accept that there is no evidence before the Court of the wife’s assets or earning ability in China and I will not make any order beyond that which is proposed by the husband.

22. The effect of the orders that I will make is that the wife will receive $10,000 by way of lump sum from the husband and, in addition, she has $9,400 in the bank.

23. I am conscious of the fact that the wife chose to repay $13,000 received from government benefits to persons in China to whom she says she owed that money. I am also conscious of the fact that there is no evidence of any demand for that money.

24. In those circumstances, as a consequence of the Orders that will be made, the wife will have some $19,400 in a lump sum and periodic maintenance of $328 per week.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 10 February 2014.

Associate: 

Date:  10 February 2014