Family Law Case Watch: March 2018

24th April 2018

By Lisa Wagner

Are you in the midst of property proceedings? Will you have sufficient funds to support yourself and your children until your matter has concluded?

In the recent Family Court decision of McLaren and Zerafa [2018] FamCA 154, the Court was asked to make urgent financial provision for a Mother and her children in such circumstances and this case provides a very helpful and easy to understand illustration of how the Court can intervene.

The facts of the case concerned the breakdown of a de facto relationship which commenced in 2010. The parties have two children, currently aged six and four respectively. Upon their separation in 2017, the Mother commenced proceedings in the Family Court of Australia. From the date of separation, the mother and children continued to reside in the former matrimonial home. As this asset comprised a significant source of the parties’ equity, they decided to enter into Consent Orders providing for the sale of same and that and upon settlement, that the Mother receive a distribution from the sale proceeds in the amount of $50,000. The Mother’s urgent Application subsequently arose in circumstances where the settlement of the home was due to occur on 23 February 2018 and the Orders provided that the Mother and children must vacate same by 16 February 2018. In her evidence, the Mother stated that she had relied on a belief that the Father would financially provide for her and the children after their home had sold until final hearing. The Father refuted this position in his Response. The Mother and the children were consequently left in a position where they were facing having nowhere to live and insufficient funds to secure alternative accommodation.

The Mother’s urgent Application was that the Father provide her with funds to secure alternative accommodation for her herself and the children. The matter was afforded a hearing in the Family Court before Her Honour Justice Rees the very next day after it was filed.

More particularly, the Mother sought Orders that either the Father secure the lease of a home for herself and the children, or alternatively, that pursuant to Section 90SG of the Family Law Act 1975 (Cth), the Father pay to her, lump sum maintenance which would be sufficient to cover one year’s rent for accommodation. The Mother also sought further Orders for spousal maintenance. In her evidence, the Mother asserted that she had entered into the Consent Orders providing for her to receive funds by way of interim payment upon settlement of the former matrimonial home, on the basis of a belief that the Father would ensure that she and the children would have somewhere to live pending settlement. Whilst the Father denied that this was a reasonable belief on the part of the Mother, it remained an urgent concern before the Court that as at 23 February 2018, the Mother and the parties’ two small children, would have nowhere to live and no source of funds to pay for alternate accommodation.

In making her decision, Her Honour took into account the fact that the parties had lived throughout their relationship in the Eastern Suburbs area of Sydney. They noted that the children were settled in that area and in particular, that the elder child attended school in the Eastern Suburbs. The Mother had made enquiries into the cost of suitable rental accommodation for herself and the children which was estimated at $2,800 per week. Justice Rees identified in her Reasons for Judgment that a person in the financial position of the Mother would not secure a rental premise in the vicinity of $3,000 per week without paying substantial funds in advance. Her Honour therefore made a maintenance Order pursuant to Section 90SG of the Family Law Act 1975 (Cth) that required payment to the Mother of an amount equivalent to twelve (12) month’s rent in advance from the proceeds of the sale of the former matrimonial home. Justice Rees did not elect to modify the Orders that had already been made in relation to spousal maintenance. Her Honour made an Order that provided for payment of $145,000 (being approximately 12 months’ worth of rent at $2,800 per week) with an immediate payment to the Mother the amount of $40,000 on 12 February 2018, as proposed by the Father and the payment of the balance of $105,000 from the proceeds of sale of the former matrimonial home, on the settlement of same.

This recent Family Law case provides a positive insight into the remedies that the Court will consider in order to assist a party requiring urgent financial assistance while their proceedings are yet to be finalised.

If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional Family Lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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