WILKINS & WILKINS

[2017] FamCA 902

FAMILY COURT OF AUSTRALIA

WILKINS & WILKINS [2017] FamCA 902

FAMILY LAW – PROPERTY – Interim property settlement – Application pursuant to Section 79 of the Family Law Act 1975 (Cth) – Just and equitable – Where the wife has not filed appropriate evidence in support of her interim application – Where the husband contends that sale of property would be premature – Where there is insufficient evidence at this stage of the proceedings to exercise the power under s 79 of the Act – Application dismissed.

Family Law Act 1975 (Cth) ss 79, 80

Stanford v Stanford [2012] HCA 52
Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Ms Wilkins

RESPONDENT: Mr Wilkins

FILE NUMBER: PAC 4105 of 2017

DATE DELIVERED: 9 November 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cheek

SOLICITOR FOR THE APPLICANT: Amanda Little & Associates

COUNSEL FOR THE RESPONDENT: Mr Finch

SOLICITOR FOR THE RESPONDENT: Aaron Legal

Orders

1. The Wife’s Application in a Case filed 29 August 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilkins & Wilkins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4105 of 2017

Ms Wilkins 

Applicant

And

Mr Wilkins 

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant wife, in proceedings with her former husband for a property settlement under s 79 of the Family Law Act 1975 (Cth) (“the Act”), seeks interim property orders that the former family home be sold and the net proceeds be paid into a solicitor’s trust account.

2. The Respondent husband opposes the orders sought by the wife and seeks that her Application be dismissed.

3. Being an interim application, the matter is determined on the basis of the uncontested facts alone.

Background

1. The husband, who is 55, and the wife, who is 54, were married in 1983 and have three adult children.

2. The parties separated on a final basis in April 2017, after a 34 year marriage.

3. The wife commenced property settlement proceedings on 17 August 2017.  

4. The asset pool is at this stage of the proceedings unclear but at least includes the parties’ former family home in Suburb A (“the former family home”). 

5. The husband seeks a final property settlement that would have the effect of dividing the net matrimonial asset pool with 54 per cent to himself and 46 per cent to the wife.  The wife has not specified what percentage of the net asset pool she contends is a just and equitable settlement.

6. The parties appear to be in dispute substantially as to factual matters relating to their relationship including the date the relationship commenced and the contributions made by each of them to the property.

7. The parties are not in dispute that the husband currently lives in the former family home with one of the parties’ three children and is currently paying the mortgage on the property while the wife is currently living in the property next door to the former family home which is owned by the maternal family.

The Interim Application

1. In her Application in a Case filed 29 August 2017 the wife seeks that the former family home be sold and the balance of the proceeds, after expenses, be paid into a trust account. She also seeks that the husband continue to pay the mortgage on the property until it is sold.

2. It is the wife’s position that the parties had previously agreed to the sale of the former family home but the husband has since refused to place the property on the market.

3. The wife says that she seeks such orders so that she is able to pay ongoing medical expenses and support herself in circumstances where she is no longer working.

4. The only evidence before me concerning the impact of the wife’s medical condition on her financial situation is a statement in her affidavit filed 29 August 2017 that she requires ongoing treatment and her “medical expenses will be ongoing”. Otherwise, there is no evidence in her affidavit or her Financial Statement filed 17 August 2017 in support of the contentions made on her behalf as to her financial position and health. Submissions in relation to the wife’s current health and financial position were simply asserted without evidence in the case outline document filed 12 October 2017 and at the hearing by her legal representative.   

5. The wife indicated in her Financial Statement that she had just over $56,000 in a bank account held in her name, four cars to the total value of $19,000 and approximately $46,000 in superannuation at the time of filing. 

6. The husband in his Response to an Application in a Case filed 3 October 2017 seeks that the wife’s application be dismissed. He opposes the wife’s Application essentially on the basis that the sale of the property is unnecessary and premature as the parties have not yet engaged in a case assessment conference, mediation or made full disclosure.  

7. The husband disputes the wife’s claim that the parties have previously agreed to the sale of the property. He also contends that the wife has not provided sufficient evidence in regards to her claims about her health and has sufficient savings and support from her family to support herself until final property settlement.

8. In his Financial Statement filed 3 October 2017 the husband deposed to earning $1,104 per week after tax and that his personal expenditure is $1,000 per week including mortgage payments of $193. The husband also indicates in his statement that he has funds at bank of less than $500 and just over $164,000 in superannuation.  

The Law

1. It appears that the wife seeks orders as to interim property settlement under sections 79 and 80(1)(h) of the Act and there is no suggestion that this is an application for costs under section 117 of the Act.

2. In Strahan & Strahan (Interim Property Orders)[1] the Full Court said at 85,633:

   86. … If the order is sought under s 79 of the Act then the court may make such an order as it considers appropriate provided it is satisfied that it is just and equitable to make the order. If the order is sought under s 74 of the Act then the court may make such order as is proper.

   87. If the source of jurisdiction is s 79 of the Act, in Zschokke at 83,216 the Full Court said:

   If the order is to be made under s.80(1)(h), it would seem that regard should be had to the requirement in s.79 that the orders be just and equitable and this would require the Court to undertake at least some brief consideration of the matters in s79(4) including those referred to in s.75(2). If on a brief consideration of those matters, it seems likely to the Court that the party who is the applicant for the interim order for an advance of funds from the other party will be likely to 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 (cf Wilson and Poletti).

   [1] (2011) FLC 93-466.

3. According to Strahan (supra) where the power is to be exercised pursuant to s 80(1)(h) a two-stage approach is to be taken to the hearing of an application. The Full Court said at [118]:

   … This is recognised by the fact that although the power under s 79 should ordinarily be exercised on a once only basis, “circumstances may arise before there can be a final hearing” where the power is exercised. Thus the first step is to resolve whether to exercise the power before a final hearing and if it is resolved to do so then the second step involves the exercise of that power.

Is it appropriate to exercise the power?

1. While the Applicant is not required to establish that there are current compelling circumstances for making an order for interim property settlement,[2] she must prove that it is just and equitable for the court to exercise the power under s79 in relation to an interim application.[3]

   [2]Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466.

   [3] Stanford v Stanford [2012] HCA 52.

2. The arguments relied on by the wife as to her current health and financial position were not supported by evidence and were contradicted by her Financial Statement and affidavit upon which she relies at the interim hearing. On this basis, I accept the submission made on behalf of the husband that the wife has not provided sufficient evidence in support of her application for an interim property distribution.

3. Further, there is currently almost no evidence before me as to the parties’ contributions during the relationship, the full extent of the asset pool and there appears to be some dispute over each party’s current financial resources, debts and capacity to support themselves. In the circumstances it would not be just and equitable to exercise the power under s 79 of the Act to order the sale of the property in which the husband currently resides and which may be one of the only substantial assets in the asset pool at the final hearing.

4. On the basis of the undisputed facts and given the lack of evidence I am of the view that the wife’s application for interim property orders is premature and it is not appropriate for the power to be exercised at this stage of the proceedings.

5. Accordingly I make an order dismissing her application.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 November 2017.

Legal Associate: 

Date:  9 November 2017