Wicklow & Wicklow

[2007] FamCA 840

FAMILY COURT OF AUSTRALIA

WICKLOW & WICKLOW [2007] FamCA 840

FAMILY LAW - PRACTICE AND PROCEDURE - Judicial Registrar - Review of decision

APPLICANT: Mr Wicklow

RESPONDENT: Ms Wicklow

FILE NUMBER: SYC 2648 of 2007

DATE DELIVERED: 8 August 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

EX TEMPORE JUDGMENT OF: Steele J

HEARING DATE: 8 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr. S. Stewart

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr P. Campton

SOLICITOR FOR THE RESPONDENT: Barkus Edwards Doolan

Orders

1. That Orders are made in accordance with the document entitled “Draft Minute of Order” filed in Court today and set out hereunder:-

   1.That the husband pay to the solicitors for the wife by way of interim costs the sum of $100,000 within 30 days from the date of these Orders.

   2.That in the event the husband fails or neglects to comply with Order 1 hereof, then forthwith upon such default the husband do all things as are necessary to sell the luxury motor vehicle by way of auction with Shannons, and the proceeds of such sale be applied as follows, after payment of selling costs:

(a)   in payment to the wife’s solicitors of the sum $100,000 pursuant to Order 1 hereof;

(b)  in payment of the balance to the solicitors for the husband by way of his interim costs.

3.That the payments pursuant to Orders 1 and 2 above are to be taken into account by the Trial Judge at the final hearing of this matter.

1. That all parties’ costs of today are reserved to the trial judge.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Steele delivered this day will for all publication and reporting purposes be referred to as Wicklow & Wicklow.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2648  of 2007

Mr Wicklow

Applicant

And

Ms Wicklow

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an Application for a Review of one of a number of Orders made by Johnston JR on 29 June 2007.  The relevant Order made by Johnston JR was to the effect that the husband should disclose whatever costs he had paid to his lawyers and should pay a similar sum to the wife as that which he had paid for his lawyers.  The application which was before the Judicial Registrar was actually an application by the wife for a payment by way of interim costs in the sum of $100,000. 

2. It is not in dispute that some sum of money should be paid, and I do not think it is really in dispute that $100,000 is probably an appropriate figure, however there is a dispute about the means by which those funds should be realised to enable payment to the wife to be made.  I have indicated during the course of argument that if an order was required which would enable the husband to realise similar funds for his own legal costs then I did not see any problem with making such a “tit for tat” type order, if that was desired.

3. The difficulty is that the wife in her Application for Final Orders specifically sought an Order, amongst others, that the parties' beach house at P in Victoria be transferred to her subject to a mortgage for which she would accept liability.  That is one of the final orders which she seeks.  The husband in his Response conceded that such an order should be made.  He now says that the P property should be sold to enable the wife's legal costs to be paid.  In particular, that situation is said to be aggravated by the fact that he has recently received a threat of legal action from the Tax Department in relation to taxation liabilities totalling some $770,000.

4. It is not easy in interlocutory proceedings of this type, without cross‑examination and so on, to work out just what the financial position is.  It is clear that there is a debt to the Taxation Department.  I have had access to the husband's case outline which was provided to the Judicial Registrar in respect of the proceedings before him and that provides a list of assets, liabilities and so on.  Significantly, it does not provide any value for the husband's business which is the source of his income. 

5. It does not provide any estimate of the value of that and it is said that the value is very much in dispute.  The husband currently contends that it has little value of itself and the wife contends to the contrary.  There are, however, listed a number of assets which include a number of vehicles.  It is understood that the husband may have conducted some hobby/business in the nature of the buying and selling of vehicles, but it is clear that there is a range of some four luxury motor vehicles, which are of considerable value.  Probably any one of those could be sold to realise funds sufficient to enable the sum of $100,000 to be paid to the wife.

6. It is pointed out to me that in order to realise the sum of $770,000 to pay the tax bill which is required that the husband may need to come back before the Court.  I understand that and whilst that is undesirable that we have a series of applications it may be necessary to consider such an application and to consider more fully the financial position of the husband in circumstances where such an application was made.

7. Counsel for the wife has proposed a minute of an order which in effect suggests that the husband be ordered to pay the sum of $100,000 which, as I have indicated, is not significantly in dispute, but that it be left to him to find the source of those funds and in the event that he is unable to do so, or does not do so within 30 days, then provision be made for the sale of one of the luxury motor vehicles.  That does seem to me to be the sensible and the preferred course because once the beach house at P is sold it does mean that one of the significant Orders which the wife seeks is no longer available to her and the property proceedings will have been partly determined in advance of any full consideration of the matter.

8. Accordingly I propose to make an Order that the husband pay the wife the sum of $100,000 within 30 days and that in the event that he does not do so that he sell one of the motor vehicles.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele.

Associate: 

Date:  20 August 2007