BENKE & BENKE

[2020] FamCA 590

FAMILY COURT OF AUSTRALIA

BENKE & BENKE [2020] FamCA 590

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – husband to pay the wife $3000 per week by way of spousal maintenance – Parenting – time with arrangements – Order for the children to spend substantial and significant time with both parents.

Family Law Act 1975 (Cth) ss 65DAA, 72

APPLICANT: Ms Benke

RESPONDENT: Mr Benke

FILE NUMBER: SYC 2746 of 2020

DATE DELIVERED: 21 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Beck

SOLICITOR FOR THE APPLICANT: Vizzone Ruggero Twigg Lawyers

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That the husband pay to the wife by way of spousal maintenance the sum of $3,000 per week.

2. That the children X born … 2007; Y born … 2009 and Z born … 2012 live with the wife and spend time with the husband during school terms as follows:

   (a)Each alternate weekend commencing on 24 July 2020 from after school on Friday until the start on school on Monday; and

   (b)Each alternate Thursday from after school until the start of school on Friday commencing on 30 July 2020; and

   (c)       Such other time as the parents agree.

3. That, in the absence of agreement, the children spend time with the husband during school holiday periods as follows:

   (a)For half of the short school holidays after the end of Terms 1, 2 and 3 and, in the absence of agreement, the first half.

   (b)For the long Christmas holidays at the end of term 4 in 2020, in each alternate week commencing, in the absence of agreement, in the first week.

   (c)For the purpose of this order, the school holiday commences at 9am on the day after the last day the children attend school and ends at 6pm on the day before the commencement of the next school term.

   (d)The wife shall deliver the children to the husband at 9am on the day on which their holiday period with him starts and the husband shall return the children to the wife at 6pm at the end of the period.

4. That where the children have been with the wife for the last week of any school holiday period, the weekend time provided in Order 2(a) shall start on the first Friday of the next school term.

5. Where the children have been with the husband for the last week of any school holiday period, the time provided in Order 2(b) shall start on the first Thursday of the next school term.

6. That the husband have access to the shed at the wife’s home on one occasion, upon the giving of 24 hours’ notice, for the purpose of removing any agreed item.

7. That the wife forthwith sign the letter of instructions to the single expert valuer Mr D.

8. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benke & Benke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2746 of 2020

Ms Benke

Applicant

And

Mr Benke

Respondent

REASONS FOR JUDGMENT

1. Ms Benke (“the wife”) and Mr Benke (“the husband”) separated under the one roof in October 2019 and physically separated in June 2020 when the husband left their rented home and took other premises.

2. The three children, X born in 2007; Y born in  2009 and Z born in 2012, remained living with the mother after the father left the home but have spent significant time with their father by agreement.

3. The parties have been able to agree on a number of matters relating to parenting and to procedural matters but have been unable to agree on the parenting arrangements for the children, both during school terms and holidays; the appropriate provision of financial support for the wife, including the payment of a lump sum of $30,000, and instructions to the agreed single expert accountant, Mr D. Those issues remain to be determined here.

4. The wife’s application for sole occupation of their rented home was resolved by the husband’s moving out into alternate premises but there remains a dispute about the use of the shed.

5. These are interim proceedings and where there are issues of fact between the parties, they cannot be determined in the limited scope of this hearing.

PARENTING

1. It is agreed that the parties will have equal shared parental responsibility.

2. The mother seeks a graduated regime of time for the children with the father, commencing for six months with time from 10am on Saturday until 6pm on Sunday and overnight on Tuesday. After six months, she proposes that the weekend time start after school on Friday.  

3. In relation to holidays, the mother proposes that the children spend five nights with the father in each holiday, including the long Christmas holiday.

4. The husband seeks a complicated arrangement which would result in the children spending equal time with each parent.

5. Under the husband’s proposal, in each two week cycle the children would live with the father from after school on Monday until Wednesday morning; with the mother from after school on Wednesday until Friday morning; with the father from Friday afternoon until Monday morning; with the mother from Monday afternoon until Wednesday morning and with the father from Wednesday afternoon until Friday morning.

6. He proposes that school holidays be equally shared.

7. There is no dispute that the mother was the children’s primary carer from birth or that the father was an involved parent, particularly after the children were of school age. The mother did not work in paid employment after the eldest child was born. The father was employed in family businesses which allowed him some opportunity to work from home but he was not at home and available to the children as the mother was.

8. When they were separated under the one roof, they agreed on an arrangement where they were each responsible for the children’s care for two nights, however, the mother was usually at home when the father was responsible for caring for the children.

9. It is not in dispute that the children love both of their parents and there are no allegations that either parent poses any risk to the children.

10. The husband has rented premises within a short distance from the mother’s home and within easy distance from the children’s schools.

11. Pursuant to the provisions of s65DAA of the Family Law Act 1975 (Cth) (“the Act”) I am obliged to consider whether the children’s spending equal time with each parent would be in their best interests and whether such an arrangement would be reasonably practicable.

12. The father’s proposal involves the children’s moving between each parent’s home after two days or, at most, three. It is disruptive and not conducive to their being settled in any one place.

13. The property in which the wife will live is the children’s home and it is the place where they are settled. Whilst it is desirable that they spend substantial and significant time with their father, it is also desirable they have a settled place which is their home.

14. Those aims can both be addressed by an arrangement whereby the children spend alternate weekends with their father from Friday afternoon until Monday morning and that they spend an overnight with him in the alternate week from Thursday after school until Friday morning.

15. Given the children’s ages, they should spend half of each of the short school holidays after the end of terms 1, 2 and 3 with each parent.  

16. In relation to the longer Christmas holiday, for the holidays at the end of 2020, if the parents cannot agree otherwise, they should be spend week about with each parent.

SPOUSAL MAINTENANCE

1. There is no dispute that the wife, at the present time, satisfies the criteria of eligibility in s 72 of the Act.

2. The dispute is about her reasonable needs and the husband’s ability to pay.

3. The application before me relates only to spousal maintenance and therefore the expenses of the children are not relevant in assessing the wife’s reasonable needs.

4. I note that the husband pays the children’s school fees and will continue to do so.

5. He will also continue to pay private health insurance premiums for the wife and the children at the existing rate.

6. He also proposes that he will continue to pay the wife’s car expenses (excluding fuel).

7. The rent on the home the wife occupies is $1,500 per week.

8. The wife sets out her expenses on two bases. Firstly, at paragraph 152 of her affidavit she sets out the expenses she incurred before the parties separated which she estimated to total $2,510 per week. Those expenses do not include any contribution to rent, utilities or car expenses.

9. In her Financial Statement, she sets out her actual current expenses.

10. In her Financial Statement, the wife discloses an income of $1,000 per week, being the amount the husband pays voluntarily, and claims expenses of $2,315, again excluding any payments for rent, utilities or car expenses. However, that claim includes a claim for children’s expenses of $980 which I will disregard.

11. The husband challenges the reasonableness of certain of the claimed expenses.

12. The wife claims Part N expenses of $865, which includes $100 per week for “Work related expenses”. She does not work. She also claims $100 per week for “Practitioner & Supplements” for herself and one of the children. There is no evidence of what supplements are for her and what for the child. I propose to reduce this claim to $50.

13. There is no evidence of the likely cost of utilities but clearly they will have to be paid.

14. The wife also claims as an expense credit card repayments of $470 per week. I do not propose to allow this claim. The credit card is paid up to date. The expense does not refer to interest. It is clearly referable to the use of the credit card to pay her day to day expenses that have already been accounted for and to allow the repayment of the credit card would be to double count the expenses.

15. The wife’s minimum reasonable expenses are $1,500 for rent and about $1,000 for Part N expenses.

16. I accept, however, that during the marriage, she spent a great deal more. The husband deposed that the parties lived above their means. If that is so, and it remains to be demonstrated, then the wife asserts that the husband still continues to spend as he always has.

17. The husband’s case is that he should pay $2,300 per week being rent of $1,500 and expenses of $800. On his behalf, senior counsel asserted that he cannot afford to pay any more.

18. The wife disputes the husband’s sworn evidence about his capacity to pay and on her behalf it is submitted that he has resources, other than his taxable income, from which his expenses are paid.

19. In his Financial Statement, the husband deposes that his weekly income is $7,458 or $387,816 per annum. In addition, B Pty Ltd, a company in which he and the wife are equal shareholders, pays half of his rent ($875) and unspecified amounts for his utilities, telephone and internet as well as dry cleaning and magazines. This amounts to an additional income of more than $50,000 per annum.

20. That is not, however, the whole of the husband’s income.

21. Until the parties separated, the wife also received an income of $179,000 from B Pty Ltd. That income is no longer paid to the wife and is presumably now available to the husband. He deposed that, during the marriage, the wife’s salary was paid into an account in his name “and pooled with the income I received ...” Whether his current salary level reflects these funds is not clear.

22. Further in the year ended 30 June 2019, the wife received a distribution from the Benke Property Trust of $67,698. Presumably, in the current financial year, the husband will receive those funds.

23. In addition, significant expenses of the husband are paid by a company F Pty Ltd in which the shares are owned by his parents.

24. Tendered in the wife’s case were a series of emails where the husband orders bespoke clothing to a cost of about $14,000 to be invoiced to F Pty Ltd.  It is not possible to know on the available evidence what other benefits the husband may have received from F Pty Ltd.

25. The husband deposed that he operates two credit cards (credit card 1 and credit card 2) and that he charges all his expenses, both personal and business, to the cards. At the end of each month personal and business expenses are reconciled.

26. The wife tendered a number of credit card statements for credit card 2. The most recent statement, issued 4 April 2020, shows purchases by the husband totalling $146,271 in the preceding month. The husband uses three separate cards, ending #…03; #…13; #…11. The transactions using the #…03 card appear to be personal expenses. Those expenses total almost $7,000. The transactions using the #…11 card totalling some $139,000 include, for example, payments totalling $100,000 to the Australian Taxation Office. They also include payments that may be personal expenses, for transactions in the area where the husband lives, but without further examination, no conclusions can be drawn.

27. The husband has a debt to B Pty Ltd of $239,511. Although I accept that this will eventually have to be repaid, it indicates a facility to draw upon the company’s assets to meet his own needs. That debt has increased from $206,000 at the end of April 2020, suggesting that in May and June B Pty Ltd advanced a total of $33,000 to the husband, in addition to his salary.

28. On the available evidence, I can say no more than that I do not accept that the husband’s income for the purpose of this application is as he deposes and that he has use of funds from F Pty Ltd and from B Pty Ltd in addition to his disclosed salary.

29. I do not accept that the husband’s necessary expenses, for the purpose of this application, are as he deposes. For example he claims as an expense the rent on the property in which the wife lives despite the fact that he does not intend to continue to pay that rent. However, there was no challenge made in submissions by counsel for the wife to his expenses.

30. The husband in his Financial Statement deposed to an excess of expenses over income of $5,360 per week. Despite that, he proposes that he pay spousal maintenance of $2,300 per week.

31. He clearly has a source of money to fund the shortfall between his claimed income and his claimed expenses. Whatever that source may be, and whatever his actual ability to pay may be, I am unable to specifically determine but I am satisfied that he can pay $3,000 per week by way of spousal maintenance which will allow the wife to pay rent of $1,500 and have $1,500 to fund her living expenses.

32. In relation to the wife’s application for payment of a lump sum of $30,000, she was unable to identify any fund from which that payment could be made.

33. The husband is borrowing from his parents to pay his legal fees and he has agreed to pay, in the first instance, for the valuations being prepared by single experts.

34. I do not propose to make such an order.

USE OF THE SHED

1. The husband seeks an order in the following terms:

   That the husband is permitted and the wife will not prevent the husband’s access to the [wife’s home] for the purposes of the husband having access to the shed and the contents of the shed upon the provision of 24 hours’ notice to the wife in writing, unless otherwise agreed.

2. The wife opposes that application and seeks that her enjoyment of her home not be disturbed by the husband’s coming and going.

3. The effect of the order sought by the husband is that, provided he gives notice, he could have unlimited access to the shed.

4. The husband deposed that the vehicle is no longer kept in the shed.  He deposed that he uses the vehicle for “business entertaining”. No doubt the business carries the cost of that use and will be able to pay for the husband to have access to the vehicle from another location.

5. The inconvenience to the husband is outweighed by the unwarranted intrusion on the wife’s quiet enjoyment of her home.

6. The orders will provide that the husband have access to the shed on one occasion, on the giving of appropriate notice, to remove from the shed any items agreed.

VALUATION ISSUES

1. Orders for the appointment of Mr D as a single expert to value the corporate entities “in which the parties have an interest” were made by consent on 3 June 2020.

2. A draft letter of instruction to Mr D was prepared by the husband’s solicitors. The draft refers to the following entities:

   ·    G Trust

   ·    Benke Property Trust

   ·    B Pty Ltd

   ·    Benke Family SuperFund

3. Reference is also made to other entities which are owned by the entities listed above.

4. The wife has refused to sign the letter of instruction.

5. The wife asserts that it is also necessary to give instructions to Mr D to value F Pty Ltd, despite the fact that the shares in F Pty Ltd are owned by the husband’s parents who are also its directors.

6. The wife’s Amended Initiating Application was filed on 17 June 2020. She seeks the following orders in relation to property settlement:

   1.That leave be granted to the wife to amend this Application, as to the division of the matrimonial asset pool, upon the husband making full and frank disclosure as to his financial position.

   2.That leave be granted, if necessary, to join to these proceedings [the husband’s parents] in their capacity as Directors of F Pty Ltd.

   3.That leave be granted, if necessary, to join to these proceedings, [the wife’s mother] in her capacity as a Director of H Pty Ltd.

7. No other orders are sought.

8. On behalf of the wife, it is asserted that the court might ultimately find that the husband has some interest in F Pty Ltd and that it would, as I understand the submission, be convenient and assist in settlement negotiations, if F Pty Ltd were valued.

9. If, at some time in the future, orders are sought against the husband’s parents or in relation to F Pty Ltd, and if the wife is able to demonstrate that there is a prima facie case for making such orders, then the instructions to Mr D can be amended.

10. At the present time, F Pty Ltd is an asset of third parties not parties to these proceedings and there is no basis for ordering that it be valued.

11. The orders will require the wife to sign the instructions to the single expert.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 21 July 2020.

Associate: 

Date:  21/07/2020