Serious assault, compensation and family law
Bault & Bault  FamCA 126 (3 March 2016)
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/126.html
- As a consequence of an assault on the wife on 29 August 2012 the husband was charged with attempted murder and eventually pleaded guilty to assault occasioning grievous bodily harm. On 23 April 2014 the husband was sentenced to a period of seven years imprisonment with a non-parole period of three years and six months. The husband presently remains in custody but there are prospects that he may be granted parole.
- On 15 December 2015 in the District Court of New South Wales a verdict of $406,562.80 was awarded to the wife in relation to damages for injury suffered by her when assaulted by the husband on 29 August 2012. The husband was also ordered to pay the wife’s costs.
- As a consequence of a previous assault on the wife in June 2012 the husband in separate criminal proceedings on 21 August 2012 was convicted of assault on the wife, fined $500, ordered to pay court costs of $83 and directed to enter into a good behaviour bond for a period of 12 months. Further on the same day an Apprehended Domestic Violence Order was made for the protection of the wife.
- In the present application the wife seeks orders for the sale of the husband’s Suburb C property with an interim distribution from the proceeds of sale of $1 million to her with the balance of funds to be held pending final resolution of property proceedings.
- The husband and wife have agreed on a mechanism for the sale of the property but what remains for determination is what money, if any, should be released from the proceeds of sale to the wife and/or to the husband by way of interim property.
- The principles as to applications for interim property provision are well settled, (Strahan & Strahan  FamCAFC 166) and require a two-step process.
- Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.
- In Strahan (supra), the Full Court said:
132. In relation to the first stage, in our view, 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.
- Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth).
- It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.
- It is important to have regard to an overall caution. In Harris & Harris  FamCA 49; (1993) FLC 92-378, the Full Court said (at 79929-79930):
As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.
- In Strahan (supra), the Full Court said at :
… 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.
- It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order. Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered.
- There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.
- In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
- Both parties in this matter in any event seek that the Court makes adjustive orders.
- In support of her application in a case filed on 7 December 2015 the wife relied upon:
- Her affidavit filed on 7 December 2015; and
- Her affidavit filed on 10 February 2016.
- In support of the interim orders sought by him the husband relied upon his response to the application in a case filed on 10 February 2015 and his affidavit filed on the same day.
- The husband seeks in his response seeks orders that in summary provide:
- For a sale of the Suburb C property;
- On sale that 50 per cent of the proceeds of sale be paid to the husband and 50 per cent be held in a controlled monies account pending final resolution of property proceedings;
- That funds presently held in a controlled monies account in the name of J Francis Lawyers pursuant to orders made on 16 September 2013 be paid to the husband;
- That the husband be restrained from approaching or contacting the wife except through her legal representative;
- That the wife be restrained from disposing of any of the contents of the Suburb C property prior to written agreement in writing between the parties or further order; and
- That proceedings as to property be expedited for final hearing.
- The husband is presently 80 years of age. The wife is nearly 63 years of age.
- The husband and wife married in 1997 at which time cohabitation commenced.
- There are no children of the parties’ relationship but the wife has three children from her previous marriage, Mr D, Mr E and Mr F. The children resided with the husband and wife in the Suburb C property from the date of marriage until the date that they variously vacated the property in 1998, 1999 and then 2005.
- The husband and wife separated on 25 June 2012 in circumstances where the husband assaulted the wife as referred to above. The wife has remained in occupation of that home over the period since separation. The wife was required pursuant to interim orders that granted her sole use and occupation of the home to maintain the home in a good state of repair and to maintain the gardens and lawns in a neat and tidy presentation.
- The parties were divorced on 21 December 2013.
- The wife commenced proceedings for property settlement by application filed on 3 August 2012. In her amended application filed on 7 December 2015 the wife seeks orders that:
- The assets, property, superannuation and financial resources of the parties be divided 50 per cent to the husband and 50 per cent to the wife; and
- That in addition the husband pay to the wife the verdict and costs outstanding by reason of the judgment of the District Court of New South Wales.
ORDERS PENDING FURTHER ORDER:
<li “=””>(a) Payment of sale costs including agents commission, auction expenses if any and legal costs;<li “=””>(b) Payment to the wife, or as she may otherwise direct in writing, the sum of $406,562.80 plus interest accrued thereon;<li “=””>(c) Payment of the balance then remaining to a controlled interest bearing account in the name of the parties’ solicitors, or otherwise as agreed, in trust for the parties pending further order or agreement in writing between the parties.
(2) That Order 15 made on 18 February 2013 (as to the wife accessing her superannuation entitlements) be discharged to the effect that the wife may draw upon the whole of her superannuation entitlements as she wishes.
(3) That Order 26 made on 18 February 2013 and Order 2 made on 16 September 2013 (as to the husband accessing monies held by his solicitor) be discharged to the effect that the husband may now be paid those funds in their entirety.
(4) That the husband’s application for expedition is dismissed.