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

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…

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 VINCENT & VINCENT

Details

AGLC: VINCENT & VINCENT [2013] FamCA 425
Case: [2013] FamCA 425
Decision Date

CaseChat Overview and Summary

In *Vincent & Vincent*, the Family Court of Australia considered an application by the wife for interim property settlement and interim spousal maintenance. The husband argued he lacked the financial capacity to meet the wife's interim property settlement demands. The court was asked to determine whether it was just and equitable to make the interim property settlement orders sought by the wife, and to consider the wife's application for interim spousal maintenance.

The court was required to determine whether to exercise its power under sections 79 and 80 of the *Family Law Act 1975* (Cth) to make an interim property settlement order, considering the overarching principle of the interests of justice. It also had to consider the husband's assertion of financial incapacity to meet the proposed payments and the wife's application for interim spousal maintenance.

Justice Macmillan applied the principles established in *Strahan & Strahan (Interim Property Orders)*, which emphasise that the interests of justice are paramount when considering interim property orders, and that it is not necessary to establish compelling circumstances. The court noted that a party with an "irresistible claim" should not be held out of their property while litigation proceeds. The husband's assertion of financial incapacity was not considered a bar to making the order, as the question of enforcement is separate from the propriety of granting the order. The court found that the husband had not provided sufficient evidence to support his claim of incapacity.

The court ordered the husband to pay the wife $150,000 by way of interim property settlement, with $90,000 payable within 7 days and $60,000 on 1 July 2013. The court also ordered, by consent, that the husband provide specific financial documents to the wife's solicitors within 14 days. The wife's application for interim spousal maintenance was adjourned to a later date.

Orders