Anthony and Thomas (No 2)

[2011] FamCA 526

FAMILY COURT OF AUSTRALIA

ANTHONY & THOMAS (NO 2) [2011] FamCA 526

FAMILY LAW - PROPERTY - interim

Family Law Act 1975 (Cth)

APPLICANT: Ms Anthony

RESPONDENT: Mr Thomas

FILE NUMBER: SYC 4283 of 2010

DATE DELIVERED: 17 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 June 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

1. The wife’s Application in a Case filed 12 May 2011 be dismissed.

2. The husband’s costs of today be reserved. 

It is noted that publication of this judgment under the pseudonym Anthony & Thomas (No 2) 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

EX TEMPORE REASONS FOR JUDGMENT

1. The wife has brought an Application in a Case filed on 12 May 2011.  The application seeks an order pursuant to the slip rule that paragraph 8 of the orders made on 15 April 2011 be deleted and substituted with the following:

   For the purposes of the husband making the payment referred to in orders 4 and 5 and without affecting his responsibility to do so, the husband may withdraw money from the home loan account.

2. The effect of the amendment that is sought would be to change the orders so that the husband could no longer draw from the home loan account for the purposes of making payments of various fees that he is required to pay relating to school fees and tuition fees for the School 1 pursuant to order 6 made on 15 April 2011.  Nor could he fulfil his responsibilities to make regular payments and payments of any arrears in respect of any loan to the Commonwealth Bank secured by way of mortgage over the former matrimonial home, by drawing upon the home loan account.  

3. I am told that the forensic advantage the wife would obtain if orders are made in accordance with her application would be to a greater cash amount in the home loan account as at the date of the final hearing by maintaining the order that I made that the husband’s bonuses as received by him from time to time go into the home loan account but restricting what then could be paid from those funds.

4. I must say I am somewhat at a loss as to the forensic advantage to the wife if the order is changed.  At the final hearing, presumably there will be a full analysis as to what payments the husband has made since separation, and the orders themselves, which are not otherwise being challenged, create a responsibility upon the husband to make payments in the four categories that have been nominated, namely, spousal maintenance, child support, payment of School 1 fees and payment of the mortgage.

5. In support of the slip rule application, the wife firstly takes me to the orders that each party has sought, and it is true that the wife sought an order that only the payments referred to in paragraphs 1 and 3 of her application be paid from this fund into which the bonuses were to be paid.  Paragraph 1 deals with spousal maintenance; paragraph 3 deals with periodic child support. 

6. The husband in response opposed any quarantining of funds for the limited purposes that the wife wished them to be quarantined.  In paragraph 6 of the Reasons, I set out how it was that the husband wanted his bonuses to be used.  He indicated, inter alia, that he wanted the bonuses to be used for the purposes of making payments regularly in respect of the mortgage on the matrimonial home.  The husband also made an application that he be able to use the bonuses to make the School 1 payments.  He also wanted to be able to make payments from the bonuses in relation to expenses on the Z farm, but that became irrelevant, given that the wife was successful in her application in relation to the Z farm and part of what she had proposed and part of what I ordered had her taking over the expenses of the farm.

7. So there was a clear controversy that I had to decide between the parties as to whether or not, firstly, the bonuses remained in the husband’s hands for him to use them firstly for the four purposes that have been identified and for him to have total control over any surplus funds on the one hand and the wife wanting the whole of the bonuses quarantined and only used for the two purposes identified by her, namely, the spousal maintenance and child maintenance on the other hand.

8. I am taken by the wife to paragraph 20 of the Reasons, where it is pointed out that I said that “generally” I accepted the proposals of the wife.  That, in my view, cannot be taken as a statement that I accepted everything that the wife proposed in her application.  In fact, when one analyses what part of the wife’s application was not successful, one concludes that the only matter on which the wife was not successful was her proposed restriction on how the bonuses could be used.  The word “generally” implies I did intend the wife not to succeed wholly in her application.

9. The wife refers to paragraph 44 of the Reasons, which sets out the table proposed by the wife in relation to an analysis of the expenses of the husband.  True enough, that table does record as “zero” the husband’s liability in relation to spousal maintenance and child support on the basis of the wife’s application that those moneys will be paid from quarantined bonus moneys in the home loan account.  It is suggested that the fact that mortgage payments at $3251 and school fees which remain there at $1538 would indicate that I intended that those moneys not be paid out of the bonus moneys but rather be paid out of the other regular income that the husband had. 

10. However, when one looks at my analysis in paragraphs 47 and 48 of the Reasons, I deal with the husband’s capacity to pay the figure of $13,759.  When looking to the sources of income that the husband had to meet this commitment, I refer both to his regular income and the bonus moneys that he had received in December, which bonus monies amounted to $413,555. 

11. I am accordingly unable to discern in my reasons a basis upon which it could be said that the orders that I then made were inconsistent with the logic in my reasons. 

12. Accordingly, I find that there is no basis for me to make any adjustment to the orders that I have made pursuant to the slip rule, as requested by the wife, and I dismiss her application that I do so.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 17 June 2011.

Associate:   

Date:  1.7.2011