Anthony and Thomas - [2011] FamCA 269

FAMILY COURT OF AUSTRALIA

ANTHONY & THOMAS

[2011] FamCA 269

FAMILY LAW - SPOUSAL MAINTENANCE - CHILD SUPPORT - exclusive occupation - interim orders

Family Law Act 1975 (Cth)

APPLICANT:

Ms Anthony

RESPONDENT:

Mr Thomas

FILE NUMBER:

SYC

4283

2010

DATE DELIVERED:

15 April 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

17 December 2010; 7 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson, SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

Orders

Pending further order:

The parties jointly maintain the Commonwealth Bank account number …9 or any other account the parties subsequently agree in writing for the purpose of receiving deposits referred to in orders 2 and 3.
The husband forthwith transfer to the home loan account from his Commonwealth Bank Complete Access account monies that he received in December 2010 by way of bonus.
The husband shall within 48 hours of receipt of any bonus, performance bonus, additional award or annual award profit sharing (however named or styled from his employer) or refund from the Australian Taxation Office, do all acts and things and sign all documents to dispose or cause to be deposited the whole of the amount into the home loan account.
The husband pay or cause to be paid direct to the wife or as the wife may from time to time direct in writing, as and by way of spousal maintenance, the sum of $1,475 per week, the first payment to be made within 7 days of the date of this order and monthly thereafter to a bank account nominated by the wife.
As and by way of a departure from the administrative assessment for child support for Y born … April 1995, H born … July 1996, J born … May 2000 and C born … February 2002 (“the children”), the husband pay by way of periodic child support for the children the sum of $4,261 per week, the first payment to be made within 7 days of the date of this order and monthly thereafter to a bank account nominated by the wife.
Pursuant to s 124 of the Child Support (Assessment) Act 1989, the husband pay, when due, all tuition fees for each of the children as listed on all tax invoices issued by School 1 to the parties, including tuition and boarding fees, uniforms (if on a tax invoice) and non discretionary items.
The husband make all regular repayments and payments of any arrears in respect of any loan to the Commonwealth Bank secured by way of mortgage over the former matrimonial home.
For the purposes of the husband making the payment referred to in orders 4 - 7 and without affecting his responsibility to do so, the husband may withdraw monies from the home loan account.
In the event that the husband fails in a timely manner to make payments of spousal maintenance or child support in accordance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anthony and Thomas

Details

AGLC: Anthony and Thomas [2011] FamCA 269
Case: [2011] FamCA 269
Decision Date: 15 April 2011

CaseChat Overview and Summary

This matter came before Watts J concerning financial orders sought by the parties in divorce proceedings. The dispute involved the division of assets and liabilities, and the provision of spousal and child maintenance.

The court was required to determine the appropriate orders regarding the management of a joint Commonwealth Bank account, the disposition of the husband's bonus payments, and the quantum of spousal and child maintenance. Further issues included the husband's responsibility for school fees and mortgage repayments on the former matrimonial home, as well as the wife's responsibilities for certain child-related expenses and her exclusive occupation of a property. The court also considered injunctive relief concerning a jointly owned property.

Watts J made orders that, pending further direction, the parties were to jointly maintain a Commonwealth Bank account for specific deposits. The husband was directed to transfer bonus monies received to a home loan account and to deposit all future bonuses, performance awards, or tax refunds into that account within 48 hours of receipt. The husband was ordered to pay spousal maintenance of $1,475 per week and child support of $4,261 per week, with both payments to commence within seven days and continue monthly thereafter. The husband was also ordered to pay all tuition and boarding fees for the children, as well as uniforms and non-discretionary items listed on tax invoices from their school, and to make all regular repayments and any arrears on the mortgage for the former matrimonial home. The husband was permitted to withdraw funds from the home loan account for these payments, and the wife was granted liberty to access the account if the husband failed to make timely maintenance or child support payments. Neither party was permitted to access the home loan account except as provided by the orders, by written agreement, or by further court order. The wife was ordered to pay for specific school expenses and discretionary extra-curricular activities for the younger children, as well as medical expenses, mobile telephones, and discretionary activities for the children while in her care. The wife was granted exclusive occupation of a property, entitled to its income, and responsible for its maintenance. Finally, both parties were restrained from mortgaging or encumbering a jointly owned property without consent or further court order.

Orders

Orders of the court

Pending further order:

The parties jointly maintain the Commonwealth Bank account number …9 or any other account the parties subsequently agree in writing for the purpose of receiving deposits referred to in orders 2 and 3.

The husband forthwith transfer to the home loan account from his Commonwealth Bank Complete Access account monies that he received in December 2010 by way of bonus.

The husband shall within 48 hours of receipt of any bonus, performance bonus, additional award or annual award profit sharing (however named or styled from his employer) or refund from the Australian Taxation Office, do all acts and things and sign all documents to dispose or cause to be deposited the whole of the amount into the home loan account.

The husband pay or cause to be paid direct to the wife or as the wife may from time to time direct in writing, as and by way of spousal maintenance, the sum of $1,475 per week, the first payment to be made within 7 days of the date of this order and monthly thereafter to a bank account nominated by the wife.

As and by way of a departure from the administrative assessment for child support for Y born … April 1995, H born … July 1996, J born … May 2000 and C born … February 2002 (“the children”), the husband pay by way of periodic child support for the children the sum of $4,261 per week, the first payment to be made within 7 days of the date of this order and monthly thereafter to a bank account nominated by the wife.

Pursuant to s 124 of the Child Support (Assessment) Act 1989, the husband pay, when due, all tuition fees for each of the children as listed on all tax invoices issued by School 1 to the parties, including tuition and boarding fees, uniforms (if on a tax invoice) and non discretionary items.

The husband make all regular repayments and payments of any arrears in respect of any loan to the Commonwealth Bank secured by way of mortgage over the former matrimonial home.

For the purposes of the husband making the payment referred to in orders 4 - 7 and without affecting his responsibility to do so, the husband may withdraw monies from the home loan account.

In the event that the husband fails in a timely manner to make payments of spousal maintenance or child support in accordance with these orders, the wife shall be at liberty to access the home loan account for the purposes of ensuring that she receives those payments.

10.

Except as provided by these orders, neither party shall otherwise access the home loan account unless there is an agreement in writing between the parties or further court order.

11.

The wife pay tax invoices issued by School 2 and the costs of discretionary extra-curricular activities of the two younger children at that school.

12.

The wife will be responsible for payments in respect of the following expenses relating to the children:

12.1. All medical expenses (not including health insurance premiums);

12.2. Mobile telephones; and

12.3. Children’s discretionary activities whilst they are in the mother’s care.

13.

The wife have exclusive occupation of “Z”, O Street, Town 1 (the Z property) on the following conditions:

13.1. The wife will be entitled to receive any income from primary production or otherwise from the Z property

13.2. The wife pay all regular payments in order to maintain the Z property in its current condition.

14.

Each party be restrained by injunction from mortgaging, drawing upon the existing mortgage or further encumbering the property situated at and known as … I Street, Sydney Suburb 1 unless the parties consent in writing or there is a further court order.

15.

The costs of these applications be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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