Anthony and Thomas
[2011] FamCA 269
•15 April 2011
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 | of | 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 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.
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.
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.
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.
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.
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.
The costs of these applications be reserved.
It is noted that publication of this judgment under the pseudonym Anthony & Thomas is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4283 of 2010
| Ms Anthony |
Applicant
And
| Mr Thomas |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
I am asked on an interim basis to make orders for the maintenance for the wife, child support for the four children of the marriage, and injunctive orders.
SHORT HISTORY
The husband is currently 48 years of age and the wife is 44 years of age. They married in 1994. There are four children presently aged 15, 14, 10 and 9.
The parties separated on 1 April 2009, but remained living in the former matrimonial home. The husband vacated that home in April 2010. The parties were divorced in August 2010 (based upon a separation which was primarily under the one roof).
The husband has been employed with the one firm as a consultant for in excess of 20 years. Over that period of time, he has earned a significant income and the parties have enjoyed a lifestyle commensurate with that income. In the calendar year ending 31 December 2009, the husband received a gross taxable income in excess of $2,740,000 and in the calendar year 31 July 2010, the husband received a gross taxable income of $1,736,000. Some difficulty arises in this case because the husband, following the separation, has taken a sabbatical and reduced his working hours. Consequently there is significantly less income available to the parties to cover the expenses the parties are used to paying. In his initial affidavit, the husband asserts that his employment may have been in jeopardy and that he was entertaining the idea of seeking alternate employment at lower remuneration. That suggestion seems now to be absent from subsequent affidavits. The wife on the one hand sees the husband's behaviour as a deliberate attempt to limit the amount of payments the wife can seek from the husband. The husband on the other hand asserts that he had been in full time employment for 20 years in a high stress environment with only short holidays of up to four weeks a year. He says that the combination of the stress he has felt from the breakdown of the marriage and his desire to spend quality time with the four children, motivated him to reduce his working hours to address the immediate problem arising from the breakdown of the marriage and the adverse affect the separation has had on his relationship with the four children.
ORDERS SOUGHT
In a further Amended Application in a Case filed 9 December 2010, the wife seeks the following orders:
Spouse maintenance orders
1.That pending further order, 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 spouse 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.
2.That pending further order, the husband pay all loan repayments with respect to the loans from the Commonwealth Bank of Australia secured by way of mortgage over the property situated at and known as [… I Street, Sydney Suburb 1] in the State of New South Wales, being the whole of the property comprised in Certificate of Title Folio Identifier […] (“[Sydney Suburb 1] property”).
Child support departure orders
3.That pending further order and as and by way of 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 $4,469 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.
4.That pending further order and pursuant to section 124 of the Child Support (Assessment) Act 1989, the husband shall as and when due pay all tuition fees for each of the children as listed on all tax invoices issued by [School 1] to the parties.
5.That the parties shall each do all acts and things necessary to cause a copy of these orders to be lodged with the Child Support Registrar.
Financial orders
6.That pending further order, the husband be restrained by injunction from mortgaging, drawing upon any existing mortgage or further encumbering the Sydney Suburb 1 property except pursuant to these orders.
7.That pending further order, 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 deposit or cause to be deposited the whole of the amount into the:
7.1account held with the Commonwealth Bank in the parties joint names (account number […9]);
and upon the balance in the joint account being reduced to $0 then any further payments to be deposited to the:
7.2account held with the Commonwealth Bank in the husband’s sole name (account number […7]),
and the parties thereafter shall be restrained by injunction from withdrawing any funds from the said accounts without the consent of the other party or order of this Court.
General
8.The husband’s obligations pursuant to paragraphs 1 and 3 shall be satisfied by payment from:
8.1the home loan account held jointly by the parties with the Commonwealth Bank of Australia (account number […9]);
and upon the balance in the home loan account being reduced to $0 then from:
9.2the account held with the Commonwealth Bank in the husband’s sole name (account number […7),
and the parties shall forthwith upon the rising of the court sign an authority in the form annexed hereto and marked with the letter “A”: and do all acts and things and sign all documents as necessary to authorise the withdrawals of the said amounts each calendar month.
Costs
9.That the husband pay the wife’s costs of this application.
The husband has filed a further amended response to the application in a case also on 9 December 2010 seeking orders in the following terms:
1.That pending further order and subject to the husband’s continuing employment with [Company 1] and the husband being permitted to use the whole of his bonus income the husband pay by way of interim spouse maintenance:
1.1To the wife the sum of $1,475.00 per week such amount to be paid monthly on the 15th of each month, the first amount to be paid on 15 January 2011.
1.2All loan repayments to the Commonwealth Bank as and when they fall due in respect of the property situate at and known as [… I Street, Sydney Suburb 1] being the whole of the property comprised in Certificate of Title, Folio Identifier [...] (“[… I Street]”).
2.That pending further order and subject to the husband’s continuing employment with [Company 1] and the husband being permitted to use the whole of his bonus income:
2.1The husband be responsible for and meet all outgoings incurred in the ordinary course relating to [Z, O Street, Town 1] as set out in the “[Z] Family Farm Annexure” to the husband’s financial statement sworn 17 August 2010 and that the wife provide all necessary instructions to implement this occurring;
2.2All income generated from the operation of the [Z] Farm be paid to the Commonwealth Bank loan account number […9].
3.That pending further order and subject to the husband’s continuing employment with [Company 1] and the husband being permitted to use the whole of his bonus income as and by way of departure from the Administrative Assessment Child Support for the children that:
3.1The husband pay to the wife by way of periodic child support for the four children the sum of $1,876 per week to be paid monthly on the 15th of each month, the first payment to be made on 15 January 2011;
3.2The husband pay all costs of and incidental to the attendance by the children [Y], [H] [T], [J] and [C] at [School 1] and [School 2] limited to tuition fees, uniforms, sports uniforms, text books and non-discretionary school related extra-curricular activities;
3.3The husband pay discretionary extra curricular activities over $100 per annum provided the husband’s prior consent is obtained prior to the incurring of the same;
3.4The husband continue to keep the children covered in the existing private health fund and pay medical, dental, orthodontal and hospital expenses.
4.That pending further order the husband and the wife sign all necessary documents to authorize drawdowns on the Commonwealth Bank loan number […9] to be made and to apply the same as follows:
4.1The sum of $100,000 to be paid to the Viridian line of credit;
4.2The sum of $100,000 to be paid to Citibank in repayment of the Citibank loan.
5.That the child support payable by the husband pursuant to order 3 above in respect of the children shall be credited against the husband’s liability under any assessment issues by the Child Support Agency and is to count for 100% of the annual rate of child support payable to the wife by the husband under any assessment.
6.That the wife pay the husband’s costs of this application.
7.That the orders sought by the wife by way of injunctive relief in paragraphs 6 and 7 of her amended response to an application in a case dated 29 September 2010 be refused.
DOCUMENTS RELIED UPON
Wife
The wife relied upon the following documents:
7.1.Financial statement of wife filed 6 August 2010;
7.2.Affidavit of wife filed 12 August 2010;
7.3.Further affidavit of wife filed 17 August 2010;
7.4.Further affidavit of wife filed 24 September 2010;
7.5.Further affidavit of wife filed 5 November 2010;
7.6.Further affidavit of wife filed 14 December 2010;
7.7.Tender bundle (Exhibit A);
7.8.Supplementary tender bundle (Exhibit B); and
7.9.Affidavit by wife filed 8 March 2011.
Husband
The husband relied upon the following documents:
8.1.Affidavit by husband filed 17 August 2010;
8.2.Affidavit by husband filed 29 September 2010;
8.3.Affidavit by husband filed 7 December 2010;
8.4.Affidavit by husband filed in court 21 December 2010;
8.5.Financial statement of husband filed 17 August 2010; and
8.6.Affidavit by husband filed 6 April 2011.
Subsequent to the initial hearing, the wife made an application to reopen the hearing to adduce further evidence. On 7 April 2011, leave was given to the wife to adduce further evidence by consent. The affidavits referred to at 7.9 and 8.6 were admitted. I heard further submissions on that day.
CONFLICT BETWEEN THE PARTIES OVER FINANCES ON AN INTERIM BASIS
A reading of the affidavits makes it clear that both parties agree that there have been considerable difficulties in them successfully communicating with one another about the wife’s desired future expenditure.
Those difficulties have come about partly as a result of the husband voluntarily reducing his income and partly as a result of the husband requiring greater accountability by the wife and asserting that there should be a reduction in her lifestyle and the children’s lifestyle pending final determination of the property proceedings.
The husband concedes that up until a particular point in time well after the separation, the arrangements that had been in operation during the marriage, including the arrangements in relation to the husband’s bonus payments continued.
The husband seemed to stop these arrangements in order to take some control over the wife’s use of those bonus monies. The husband concedes that the wife was forced to borrow funds from her father and another person on a short term basis in order to meet expenses that she had. The husband says he subsequently provided funds to the wife to reimburse those persons from whom the wife had borrowed monies.
When the case was reopened, I was made aware that four days after the matter was heard by me, the husband received a bonus from his employer in the sum of $413,555 (net of tax). The wife complains that the husband did not inform her of his receiving those funds until 3 March 2011. The wife suggests that this non disclosure breached the spirit of a previous undertaking as well as the husband’s overall duty for continuing financial disclosure and that the information was only volunteered by the husband once he became aware that the wife had issued a subpoena to his employer for this information.
There are a number of other assertions made by the wife as to inappropriate behaviour by the husband, including lack of timely payments, lack of financial disclosure and assertions of deliberate non disclosure. In the context of this interim hearing, I do not intend to entertain and am unable to determine any of those matters. An assertion was made by senior counsel for the wife that I would find as inherently unbelievable the evidence by the husband that he received a tax refund cheque of $25,000 and did not bank it for a considerable period of time, during which time he was asserting to the wife that he had insufficient funds to provide to her. Although I do not have specific evidence about it, counsel for the husband asserted from the bar table that the cheque was not “put in a drawer” but rather languished in the husband’s in tray, without the husband realising the Australian Tax Office had provided the husband with that refund cheque. I am unable in the context of this hearing to make any assessment that the husband’s explanation is so inherently unbelievable that I would reject it out of hand.
In the husband’s affidavit of 8 March 2011, he takes the rather technical point that the undertaking that he gave to make disclosure in relation to the receipt of his bonus was only good until 17 December 2010.
The husband concedes in his affidavit of 8 March 2011 that he did not comply with the injunction which was made by the court on 8 December 2010 to the effect that he be restrained from using, drawing against or transferring any part of the bonus, performance bonus, additional award, annual award, or profit sharing received from his employer. When he received his bonus, he originally placed it in a Commonwealth Bank complete access account in his own name but then drew on it to the sum of about $100,000. That money was put back into the original account on 2 March 2011 after receiving advice from his solicitors.
I do note in his initial affidavit, the husband explained his motivation for purchasing a second motor vehicle and it was on the basis that a smaller motor vehicle be sold. In a subsequent affidavit, it seems that he changed his mind in relation to the sale of that motor vehicle.
I find that the parties have been locked in an unfortunate struggle over family finances.
The arrangements suggested by the husband will only in my view lead to a continuation of debates over the appropriateness of accounts. The wife’s proposals are far cleaner in terms of defining what responsibilities each party has for making payments and giving parties access to funds in order to make those payments. I accordingly shall make orders as generally proposed by the wife.
SPOUSAL MAINTENANCE
The parties have now reached agreement that an order should be made that the husband pay the wife by way of interim spousal maintenance the sum of $1,475 per week. The argument is about what child support and other expenses should be paid and by what method.
CHILD SUPPORT
It was agreed that an administrative assessment had been issued by the Child Support Agency (it was not in evidence before me). I infer any current assessment does not result in an obligation for the payment of child support by the husband of an amount in excess of that sought by the wife. The written submissions of the respondent question whether or not the court should determine the child support issue on an interim basis in circumstances where the wife had not exhausted the remedies available to her through the Child Support Agency and the Social Securities Appeals Tribunal. During submissions however, counsel for the husband conceded that it was appropriate for the wife to rely upon s116(1)(b) Child Support (Assessment) Act 1989 (Cth) (“the CSA Act”) for this matter to be determined concurrently with the proceedings in respect of spousal maintenance and injunctive relief as sought by the wife.
In this application, the court must consider:
23.1.Whether a ground for departure is established pursuant to ss 117(2) of the CSA Act;
23.2.Whether the court is satisfied it is just and equitable and otherwise proper to make an order;
23.3.The financial support necessary for the maintenance of the children; and
23.4.The respective financial contributions that should be made by each of the husband and wife towards the financial support of the children.
Counsel for the husband did not suggest that a ground for departure was not established. Although I was not informed as to the current amount of the current assessment, it seemed implicit from the submissions by counsel for the husband and the order he himself sought by way of departure from the child support assessment, that a ground for departure was established. The husband has a very significant earning capacity and I am satisfied that, in the special circumstances of this case, any administrative assessment would result in an unjust and inequitable determination of the level of financial support to be provided by the father for the children because of the income and earning capacity of the father (see s 117(2)(c)(ia) and (ib) CSA Act). When taking the father’s earning capacity into account, I am mindful of the provisions of s 117(7B) CSA Act. The father has reduced the number of hours per week of his employment below the normal number of hours a week which constitutes full-time work for the occupation in which he is employed. That decision to reduce the number of hours is not justified on the basis of caring responsibilities or the father’s state of health. The father has led evidence that affecting the amount of child support that he would otherwise have to pay is not the major purpose for taking the decision that he did. I am not satisfied that he has demonstrated that it was not the major purpose. So far as I need to take the father’s earning capacity into account, I do so when making an assessment as to his ability to pay child support at the level needed. It is common ground that the husband agreed to a dismissal of his application for shared care in respect of the children by way of an order made 29 September 2009. The wife submits that the husband’s stated motivation for taking sabbatical leave can no longer be said to have cogency after 29 September 2009.
The question for determination is what periodic amount of child support represents a just and equitable payment by the husband to the wife.
EXPENSES CLAIMED BY THE WIFE FOR THE CHILDREN
The parties have configured the method by which expenses for the children would be paid in different ways. This means that I will be required to make a decision as to which parent will be responsible for paying what expenses and what source of funds might be drawn upon for particular purposes. There is also a dispute between the parties as to the level of reasonable expenses that should be allowed for the children in certain categories.
The wife has set out in her financial statement and affidavits, evidence as to the financial needs of the children on a periodic basis.
In his further amended response to an application in a case, the husband agrees to pay the sum of $1,876 per week as departure from the child support assessment, together with all costs of and incidental to the attendance of the children at the School 1, with such costs to be limited to tuition fees, boarding fees, text books, materials and uniforms, as well as private hospital, optical, dental, orthodontic and other medical expenses of the children not being able to be recovered from the husband’s private health fund.
Accordingly, the husband agrees that he will pay invoices issued by the school at which the two elder children are boarding. The costs are calculated at $1,538 per week. The parties agree that the overall school fees for the four children are of an amount of approximately $1,840. It is the mother’s position that she would, as part of her expenses, be responsible for the school fees of the two younger children being an amount of $302 per week ($1,840 - $1538).
The husband concedes in his material that he will continue to make all loan repayments to the Commonwealth Bank secured by way of mortgage over the former matrimonial home.
The parties are in dispute as to what are reasonable amounts for the children’s discretionary activities.
In the case summary filed by counsel appearing for the husband on 8 December 2010, the husband concedes the following expenses claimed by the wife as reasonable for the children:
Food
$430
Gas
$45
Electricity
$35
Telephone and internet
$60
Motor vehicle - maintenance
$115
Child minding
$60
Chemist/pharmaceutical
$16
Total
$761
In his financial statement sworn and filed 17 August 2010, the husband asserts his expenses for the children were as follows (in comparison to the wife’s):
Item
Wife’s Part N
Husband’s Part N
House repairs
80
80
Medical, dental and optical
340
340
Holidays
540
540
Education
1,840
1,840
Total
2,800
2,800
The following expenses remain to be considered and assessed:
Item
Wife’s Part N
Husband’s Part N
Household supplies
45
40
Motor vehicle - petrol
95
75
Car parking/tolls
95
32
Clothing and shoes
420
270
Children’s activities
304
234
Entertainment/hobbies
265
150
Gardening/lawn mowing
88
30
Cleaning (house/pool)
288
48
Repairs - furnishings and appliances
75
25
Dry cleaning
50
20
Books and magazines
50
25
Gifts
110
40
Hairdressing/toiletries
50
30
Pet costs and […] (boat)
208
NK
80% of balance in Part G
303
NK
Total
2,446
1,019
It is the wife’s position that the parties enjoyed a high standard of living prior to 1 July 2010 when the husband voluntarily reduced his income. At that stage, I accept the parties had as disposable income, of up to $130,000 each month.
When looking at issues relating to lifestyle, the wife points to the fact that the husband, at a time when he was contemplating reducing his income, entered into a commitment for rental accommodation for himself in the amount of $2,307 per week. The husband also committed to the purchase a new motor vehicle valued at $80,000 in circumstances where he already had a motor vehicle. The husband does not make a complaint about the wife’s level of expenditure during the marriage or after the separation up to 1 July 2010. The wife submits, on an interim basis, that I should accept that previous expenditure levels are a proper guide to the question of reasonable expenditure. The only question should be capacity to pay. I accept the force in that argument. Until final hearing, the wife and the children should be able to continue their standard of living if that is consistent with an ability to maintain it as a result of income earned by the husband.
The husband in his submissions makes the point that the wife is accommodated in a luxury home (and that seems to be the case, although the parties are at odds as to how much the property at Sydney Suburb 1 is worth; the wife asserting it is worth $13,000,000 and the husband asserting it is worth $8,000,000). The husband however has procured accommodation for himself at a rental which would indicate that it is accommodation of well above average standard.
An example of the husband’s assertions as to what is a “realistic assessment” of the children’s expenses, is the amount he is prepared to concede for holidays for the four children. The wife claims holidays in the sum of $540 per week. The husband is prepared to concede $190 per week. The amount of $540 per week is $130 per week per child. The husband allows $47.50 per week per child for holidays. The “concession” by the husband is disingenuous for two reasons. Firstly, the husband’s own claim for weekly expenditure in relation to holidays is $200 per week. Secondly (as set out above), the husband claims $540 per week as an expense for the children’s holidays when they are with him.
The husband asserts that Part N of the financial statement sworn by the wife on 6 August 2010 should be reduced so that a “realistic assessment” of the needs of the children is reached. This comes by way of submission. Whilst I accept the wife has not produced primary records to corroborate her sworn evidence as to expenses, there is nothing in the husband’s evidence, by way of tendered document or otherwise, which would impugn the wife’s sworn evidence as to her actual expenses. I acknowledge that the father has not had an opportunity to test the mother’s assertions in her sworn document by way of cross examination. The orders I make are in the context of interim orders and pending further order.
Any reduction by me to discount the evidence given by the wife as to her expenditure on the children would only be arbitrary and I have no basis on the evidence to do so.
I accept the wife’s position that the parties enjoyed a high standard of living prior to 1 July 2010 and although that was at a time when disposable income was higher, I see no reason on an interim basis not to maintain that standard of living if the husband has the capacity to maintain it.
I accept the wife’s list of expenditure on behalf of the children as set out in Part N of the financial statement sworn by her on 6 August 2010 for the purposes of these interim proceedings.
The wife has, at paragraph 5.7 of her submissions, calculated the amount of child support required. From Part G of her financial statement, the wife has included items 22, 25, 26 and 27 and calculated 80 percent of that amount to be referrable to the four children. She has corrected the total expenses nominated as being payable for the children in Part N of her financial statement for fees included in that list to School 1 and for the Z property expenses. I have corrected the figure for the Z property expenses based upon page 11 of the wife’s financial statement. The calculation is as follows:
Expense
Amount
Amount
80% of balance in Part G (total $379)
303
Part N
7,494
Less tax invoice issued by [School 1]
- 1,538
Less [the Z property] expenses
- 1,998
3,958
Total
4,261
CAPACITY TO PAY
At paragraph 4.13 of the wife’s summary of argument, she sets out a table comparing the positions of the parties in respect of current weekly expenses. That table is in the following form:
Expense
H’s amount
W’s amount
Comment
Income tax
5,215
5,215
Mortgage repayments
3,251
3,251
Rent
2,308
2,308
Spousal maintenance
1,475
0
Wife proposed amount be withdrawn from the home loan account
Child support
2,000
0
Wife proposes amount be withdrawn from the home loan account
School fees including tuition and boarding fees, uniforms and non discretionary activities
1,538
1,538
Medical
170
0
Wife proposes to pay the expense
Mobile telephones
40
0
Wife proposes to pay the expense
Children’s discretionary activities
100
0
Wife proposes to pay the expense
Z farm expenses
2,178
0
Wife proposes to pay the expense
Z farm rates
54
0
Wife proposes to pay the expense
Remainder of expenses as asserted by the husband
1,447
1,447
Total
19,776
13,759
It can be seen from the above table that the wife asserts that the overall expenses are $13,759 on the basis that spousal maintenance and child support are paid from the home loan account and she will have responsibility for payments of other amounts referred to in this table.
The wife relied upon paragraph 47 of the husband’s affidavit sworn on 1 July 2010 and filed 7 July 2010, as follows.
“47. I am in the process of formalizing an agreement with my employer to have a 60% part time workload. This includes an explicit agreement that I can take the children to school in the morning and be at home when they return from school in the afternoons (or collect them) for 50% of my work days. As part of this agreement I have arranged sufficient leave so I am able to spend one half of all school holiday periods with the children. I also expect to receive approval with one week for a half pay sabbatical of up to six months starting July 1, which could be extended for a further six months. I will use this time to support our children during this transition.”
The husband’s income position has changed and the husband’s income has increased from 1 February 2011. In his affidavit of 8 March 2011, the husband indicates that he has resumed full time employment but at a lower level of remuneration than for the year ended 30 June 2010. At the time of the original hearing, his weekly salary was $12,444. It has now increased to $14,932. Taking into account the tabulation of additional tax on the increased income (which I accept is approximately $1,160), the net income available to the husband to cover expenses is $13,772 per week. This amount does not take into account the bonuses the husband receives in December and June. As already mentioned, last December the net amount of the bonus was $413,555.
The wife submits, and I accept, that that amount will cover the expenses that the husband has based on her calculations (namely, $13,759).
CONCLUSION
I accept that the figure of $4,469 is a just and equitable amount for weekly child support for the four children on the basis that the father will be in addition paying the School 1 expenses. I find an order for the husband to make a payment greater than the administrative assessment is otherwise proper. The mother will be responsible for the following expenses for the children:
49.1.Medical (not including health insurance premiums);
49.2.Mobile telephones; and
49.3.Other discretionary activities when the children are with her.
Consistent with my decision in relation to the Z Farm, the mother will be responsible for all expenses in relation to the Z Farm, including rates.
THE Z PROPERTY
The husband and wife both seek to receive all income generated from the Z farm and be responsible for the upkeep of the farm.
The parties give irreconcilable evidence in relation to the history of the management of the Z property. I am unable to determine in the context of this hearing which version should be preferred. It does seem however that there are a small number of agreed facts:
52.1.The Z property is registered in the sole name of the wife;
52.2.The Z property is a working farm which was acquired in November 2006;
52.3.The property was in a derelict state when it was purchased and the wife over the past four years has arranged and coordinated renovations to the property and the outbuildings. This has involved working in conjunction with the National Trust for three years. She did not engage an architect, interior decorator or building supervisor. The husband concedes the parties had agreed that the wife would look after the house and the garden. The parties are at odds in relation to what the agreement was in respect of other parts of the property. The wife visited the property weekly to supervise the renovations;
52.4.The children and the wife spent the majority of the school holidays over the last four years at the farm. The husband, during some of these times, used the property as a base from which to travel to work; and
52.5.In 2008 a lease arrangement was entered into between the wife and the husband with the wife as landlord and the husband as tenant. I was told from the bar table during submissions that this arrangement was entered into for the purposes of possible tax advantages which would indicate that there was some loss being generated by the farm which could be offset against the husband’s income. That loss however may have included the lease payment that was being paid by the husband to the wife in respect of the lease of the Z property. On 19 June 2010 the wife notified the husband that the leasing arrangement would cease from 1 July 2010. The husband did not oppose this initially as he “hoped that we could come to an amicable arrangement for sharing the farm”.
Both parties assert that it is no longer possible to jointly manage the farm and both seek to do so. The parties are in dispute as to whether or not the income produced by the farm is sufficient to cover its operational expenses. The wife asserts that there is no operating loss and is prepared to underwrite any shortfall by paying all expenses relating to the farm on the basis that she receives the income from the farm.
Senior counsel for the wife asserts that to allow the husband control of the farm would be to inappropriately alter property prior to the final hearing.
Considering the agreed matters as set out above in relation to the Z property, I find that on balance it is appropriate to allow the wife to continue the operations of the farm at Z, to receive the income from the farm and to pay all expenses in respect of the farm. I will make orders accordingly.
COSTS
Any application for costs arising from these applications should be dealt with along with any costs application arising after the conclusion of the proceedings.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 15 April 2011.
Associate:
Date: 15.4.2010
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Property Law
Legal Concepts
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Injunction
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Costs
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Remedies
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