Property – interim order compelling parties to pay mortgage outgoings set aside – proximity of the parties’ mediation irrelevant

In Fei & Woong [2021] FamCAFC 2 (22 January 2021) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed an appeal from an interim order made after counsel for the wife made an application for the husband to meet all mortgage payments.

The wife relied upon the husband’s income of $12,396 a week as against the wife’s income of $200 a week. Counsel for the husband contended each party had capital. The court ordered each party to be equally responsible for all mortgage payments, noting that would entail only “two to three mortgage payments” before mediation.

The wife appealed. Kent J said (from [58]):

“ … [T]he … judge’s reasons … support the wife’s argument that his Honour was guided by irrelevant considerations. … [H]is Honour … highlight[ed] each party’s financial situations in six paragraphs … [T]hereafter … is the only reference in his Honour’s reasons which could be … a consideration of the balance of convenience. (…)

[60] … [H]is Honour was focussed more on … settlement than the consideration of the application on its merits. That view is fortified by his Honour’s reference to there only being an approximate two to three mortgage payments before the mediation, which … when coupled with the … implication of his Honour’s reasons that the parties ought reach settlement at … mediation, highlights his Honour’s error. (…)

[63] It was the … judge’s obligation to consider the relevant law and … take into account only those considerations relevant to its proper exercise. It is not relevant … whether the … judge considered the parties should reach settlement at … mediation (…)

[66] … [T]he wife sought to engage the jurisdiction of the court to grant injunctive relief to preserve capital … . The court was obliged to apply the applicable principles to that application. … The … judge made a … mandatory injunction which order could only be founded upon the power … under s114. … [T]he authorities do not support any proposition … that it is legitimate to impose an injunction for the … purpose of exerting … pressure … to compromise the party’s … claim.”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson is the co-editor. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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