VINCENT & VINCENT
[2013] FamCA 425
FAMILY COURT OF AUSTRALIA
| VINCENT & VINCENT | [2013] FamCA 425 |
| FAMILY LAW – PROPERTY – interim distribution sought by the wife – husband argued incapacity to meet the payments – just and equitable to make the orders sought – wife granted interim property settlement – wife’s application for interim spousal maintenance adjourned. |
| Family Law Act 1975 (Cth) |
| Bing & Bing [2007] FamCA 418 Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 Wenz v Archer [2008] FMCAfam 1119 |
| APPLICANT: | Ms Vincent |
| RESPONDENT: | Mr Vincent |
| FILE NUMBER: | MLC | 3647 | of | 2013 |
| DATE DELIVERED: | 7 June 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 5 June 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dickson |
| SOLICITOR FOR THE APPLICANT: | Marshalls & Dent Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Harriss |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers Pty Ltd |
IT IS ORDERED BY THE COURT UNTIL FURTHER ORDER THAT
The husband pay to the wife by way of interim property settlement the sum of $150,000 (“the payment”) as follows:
a) $90,000 within 7 days;
b) $60,000 on 1 July 2013.
IT IS ORDERED BY CONSENT THAT
Within 14 days the husband provide to the wife’s solicitors copies of the following documents:
a) BAS statements from Q3 2011-2012 financial year to Q3 2012-2013 financial year (inclusive) for the husband;
b) bank statements and credit card statements for all accounts in the husband’s name since 1 July 2012;
c) documents in relation to all policies of insurance for the husband as referred to in his Financial Statement; and
d) the most recent two financial statements for the self-managed superannuation fund, together with bank statements and share portfolio trading records for the past 12 months.
THE COURT FURTHER ORDERS THAT
The wife’s application for interim spousal maintenance be adjourned to the Senior Registrar’s Duty List at 10.00 am on 18 July 2013.
The wife’s Initiating Application filed 9 May 2013 with respect to her application for interim orders and the husband’s Response to an Initiating Application filed 5 June 2013 with respect to his application for interim orders are otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vincent & Vincent 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 3647 of 2013
| Ms Vincent |
Applicant
And
| Mr Vincent |
Respondent
REASONS FOR JUDGMENT
The application before me today is the wife’s Initiating Application filed 9 May 2013. The only part of that application that the wife seeks to have me determine today is her interim application for property settlement. The orders sought by the wife in her application that are relevant for the purposes of the proceedings before me today are, in summary, as follows:
a) That within 14 days the husband deposit the sum of $52,000 into a bank account nominated by the wife by way of partial property settlement pursuant.
b) That within 14 days the husband deposit $50,000 into the trust account of Marshalls and Dent Lawyers by way of partial property settlement.
c) That the husband forthwith pay the full balance owing on the following credit cards registered in the wife’s sole name:
i.ANZ Visa Platinum;
ii.ANZ Mastercard;
iii.ANZ Mastercard Low Rate;
iv.NAB Visa Low Rate; and
totalling $52,645.
Counsel for the wife prepared a document titled “Wife’s Minute of Proposed Orders”, which was handed up at the commencement of the hearing, in which the wife proposed orders as follows:
a) The husband pay to the wife the sum of $150,000 (“the payment”) as follows:
i.$90,000 within 7 days; and
ii.$60,000 on 1 July 2013.
b) That $130,000 of the payment be categorised as part property settlement (subject to any finding of the Court as to how much of the wife’s credit card liability is a proper matrimonial debt).
Counsel for the wife submitted that instead of the separate payments, as identified in her application, the wife was now seeking a single lump sum payment from the husband by way of interim property settlement. Although the wife’s minute proposed that only $130,000 of that lump sum be characterised as an interim property settlement, Counsel for the wife submitted that, provided the wife received the whole of the $150,000 she sought, she would not object to the whole amount being characterised as a part property settlement.
At the hearing, the husband sought and was granted leave to file a Response, his affidavit in support of that response, and a financial statement. The husband’s Response to the wife’s interim application was that the parties convene a private mediation, that they appoint a single expert to value the real properties, and that they each provide full and frank disclosure.
Mr Harriss also prepared a document titled “Minutes of Proposed Orders” in which the husband sought orders that also differed from those contained in his Response. The husband’s minute proposed the following orders:
a) That the husband pay to the wife by way of partial property settlement the sum of $50,000.
b) That the payment to be made by the husband to the wife be paid as follows:
i.one half thereof no later than 26 June 2013;
ii.the balance thereof no later than 31 July 2013.
c) That by way of litigation funding for the wife, the husband deposit into the wife’s solicitors trust account the same amount of any sum that he pays to his solicitors Mills Oakley Lawyers, such payment to the wife’s solicitors to be made contemporaneously with any such payments to Mills Oakley Lawyers.
The hearing proceeded by way of oral submissions based upon the parties’ respective affidavits and statements of financial circumstances. Their evidence was not tested.
Background
The parties commenced cohabitation in or about 1986 and were married in 1996. The wife says the parties have been married for approximately 26 years. Although nothing turns on it, for the purposes of the application before me the husband says that the relationship broke down for a period of two years in the latter part of the 1980’s so on his evidence the parties have cohabitated for approximately 24 years. The parties separated on a final basis on 3 January 2013.
There are two children of the marriage who are aged 19 and 15 respectively. They are both full-time students.
The wife is 47 years of age and is currently employed on a casual basis as a healthcare worker at a university and through an agency. She deposes that her weekly income fluctuates depending upon how often she works but that on average she earns approximately $496 gross per week.
The husband is 64 years of age and is a healthcare worker in private practice. The wife deposes that based upon what he earned prior to separation, the husband earns approximately $520,000 per annum from his practice. The husband deposes that his current income is just under $350,000. He says that his income has fallen considerably over the past few years and particularly since separation because his responsibility for the care of the youngest child of the marriage has impacted upon his capacity to devote time to his practice.
Although the parties were initially living separately but apart under the one roof, since March 2013 the wife has lived in separate rental accommodation. The husband has continued to occupy the former matrimonial home in Suburb B, with the two children of the marriage, since separation.
There is no dispute between the parties as to the property in which they, or in this case primarily the husband, have an interest. There is however a dispute as to the value of that property.
In her affidavit the wife estimates the value of the real property at $8,000,000, subject to mortgages that she estimates to be $700,000. She estimated her member benefits in the Vincent Superannuation Fund to be $300,000. It was submitted that the total of their combined superannuation entitlements were somewhere in the vicinity of $1,000,000, making the total value of the property and superannuation in excess of $8,000,000.
The husband disputes the wife’s estimates of value of the real property in this case. In his affidavit the husband has attributed a value of $6,800,000 to the real property and deposed to there being mortgages and other liabilities of $1,002,000, including an imminent quarterly tax liability and anticipated accounting fees. The husband said his member account balance in the self-managed superannuation fund is $600,000, making on his figures a total of approximately $6,700,000. It was submitted by Mr Dickson on behalf of the wife that whether it turns out to be $6,700,000 or $8,000,000 is not material for the purposes of the application before me, as it is clear that whichever figure is accurate, the wife is entitled to significantly more by way of property settlement than the figure of $150,000 she seeks as an interim property settlement. There was no submission made by Mr Harriss on behalf of the husband to the contrary.
Legal Principles
The power to make orders for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) is a single exercise of power, however it is well-established that the Court has the power pursuant to s 80 of the Act to make an order for interim property settlement or, for that matter, a succession of orders, in the course of that single exercise of power as may be required in the particular circumstances of each case.
In their joint judgment in Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 (“Strahan”), Boland and O’Ryan JJ said at paragraph 132 as follows:
… when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
Whilst recognising that it was generally better for the Court to exercise the power pursuant to s 79 of the Act on a once and for all basis, their Honours also agreed with the statement of Federal Magistrate Riethmuller, as he then was, in Wenz v Archer [2008] FMCAfam 1119 at paragraph 53 that “[i]t cannot be the case that a party who has an irresistible claim to a substantial share of the property of the parties should be held out of that property while the matter is litigated.”
In Strahan, their Honours went on to say at paragraph 137 as follows:
Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that … the applicant … will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made” … As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought … then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted. (Citations omitted)
Significantly, for the purposes of this case, the question is not what the party seeking the interim property settlement needs the property for, nor what they intend to do with that property if an order is made in their favour. The question is whether in the interests of justice an order should be made.
Conclusion
In fairness to counsel for the husband, his case was not that the wife was not ultimately entitled to a property settlement nor that she was not entitled to more than the amount she now seeks by way of interim property settlement. It was the husband’s case that, firstly, the wife’s needs as identified in her affidavit could be met in other ways or did not justify the order she now seeks and, secondly, that his client did not have the financial capacity to meet the orders as sought by the wife.
I am far from being satisfied that the husband in this case cannot raise the funds necessary to pay the wife the amounts she seeks and on the dates upon which she seeks those payments. Although the husband asserts that he cannot meet the payments sought by the wife and has no further borrowing capacity, he did not present any evidence in support of that assertion. These proceedings were commenced by the wife on 9 May 2013 and the husband has, in my view, had the opportunity to present evidence in support of his assertions had he wished to do so.
However, as the Full Court of the Family Court said in Bing & Bing [2007] FamCA 418 at paragraph 27, where it was asserted, as it is in this case, that the husband was unable to raise the funds sought by the wife:
[t]his is a matter which may become relevant if and when the husband defaults in the order and an enforcement application is brought. However, the question of enforcement of the order remains a separate question from the propriety of granting the order in the first place.
The husband’s assertions as to his incapacity to meet the payments sought by the wife do not alter my view that justice and equity in this case require that I make the interim orders sought by the wife. This is a marriage of between 24 and 26 years. The parties have raised two children. The husband controls, to the exclusion of the wife, almost all of the property and it is not disputed that in the circumstances of this case the wife would only be receiving some part of what she is entitled to receive when the power pursuant to s 79 is exhausted. In all of the circumstances, I propose to make the order she seeks for interim property settlement as set out in the wife’s Minute of Proposed Orders, save and except that the whole of the $150,000 to be paid to the wife is to be characterised as an interim property settlement. The issue of whether the wife’s credit card liabilities should be a debt of the marriage is a matter that can be determined at the trial without prejudice to the wife. It is also open to the wife to seek that any order for her maintenance should be backdated.
I also propose to make the order sought by the wife adjourning the matter to the Senior Registrar’s Duty List. It is a matter for the parties whether they want to convene a private mediation and not a matter in relation to which I would make an order. The wife is otherwise entitled to press her claim for spousal maintenance. Although it was submitted on behalf of the husband that he needed more time to complete his 2013 tax returns, Mr Dickson has made it clear that he does not require the 2013 tax returns to be completed in order to pursue his case on behalf of the wife and that if the husband complies with the order for the production of documents, which it is agreed I can make by consent, there will be sufficient financial information available for the Court to determine the application. The husband has deposed that the preparation of his 2011 and 2012 tax returns is already in progress, and if he wishes to present evidence to the Court in relation to his current financial circumstances, I am not satisfied in any event that his affairs are so complex that he could not do so if the matter were listed for hearing in July. There is otherwise no basis for the hearing of the application for spousal maintenance to be delayed.
I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 7 June 2013.
Associate:
Date: 7 June 2013
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