Bevan and Masacci

[2016] FamCA 904

FAMILY COURT OF AUSTRALIA

BEVAN & MASACCI [2016] FamCA 904

FAMILY LAW – PROCESS & PROCEDURE – Removal of livestock from property – payment of expert witness – spousal maintenance.

APPLICANT: Ms Bevan

RESPONDENT: Mr Masacci

FILE NUMBER: SYC 8438 of 2015

DATE DELIVERED: 28 October 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 24 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Fox & Staniland Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

IT IS ORDERED

1. That by 31 December 2016, the wife remove from the property at B Street, C Town (“C Town”), all livestock owned by her.

2. That other than for the purpose of the wife’s compliance with Order 1, the husband have the sole use and occupation of “C Town”.

3. That the wife’s application in relation to the payment of the fees of the single expert be dismissed.

4. That the husband pay to the wife, by way of spousal maintenance, the sum of $250 per week, the first payment to be made within seven days and weekly thereafter.

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 Bevan & Masacci 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 8438 of 2015

Ms Bevan

Applicant

And

Mr Masacci

Respondent

REASONS FOR JUDGMENT

1. Ms Bevan (“the wife”) and Mr Masacci (“the husband”) are engaged in financial proceedings.

2. They commenced to live together in 2002 and separated in 2015. They did not have children.

3. By an Application in a Case, the wife seeks orders relating to the payment of spousal maintenance; payment of the fees of an appointed single expert valuer; and the use and occupation of a rural property, “C Town” in the Southern Highlands.

Use and Occupation of “C Town”

1. The property “C Town” was acquired jointly by the parties. The husband lives there. The wife lives in Suburb D.

2. By way of final orders, the wife wishes to sell “C Town” and divide the proceeds. The husband wishes to retain it.

3. The joint use of “C Town” has created problems. It is not necessary to chronical here the allegations that each party make. It is sufficient to say that it is not possible for the parties to continue each to use “C Town”.

4. At the present time, the wife has 19 head of livestock on “C Town”. The husband complains that the livestock are causing damage to trees planted on the property. The wife seeks orders that the husband properly maintain the fences to ensure that the livestock are contained.

5. The Court was told that the livestock were purchased in July 2015. In her affidavit sworn 13 July 2016, the wife deposed that the livestock were purchased with the intention of selling them after a year. Since the affidavit deposed to a likely payment of “service costs” it is reasonable to assume that they were intended to be sold either with offspring delivered or in utero. There is no present prospect of offspring.

6. The husband does not want to be responsible for the day to day oversight of the livestock.

7. The wife submitted that she should be entitled to dispose of the livestock in an orderly fashion and said that could be done by 31 December 2016.

8. Since the husband wants to retain the property, he should be entitled to occupy it and the wife should remove the livestock.

Costs of the single expert 

1. By orders dated 7 June 2016, a single expert has been appointed to value the corporate entities in which the parties have interests. Those orders included a provision to the effect that the parties pay equally the costs of the single expert.

2. The wife now seeks to vary that order to provide for the costs of the single expert to be paid by the husband.

3. In support of that application she deposed that, as the husband has not disclosed savings in his Financial Statement, she assumed that the husband will use his income from the business which he controls, and in which they each have an interest, to pay his share of the fees of the single expert. On her behalf, it is submitted that it is not fair that he can use the income of the business to pay his share and she must use her capital to pay her share.

4. The husband swore a Financial Statement on 5 May 2016. He deposed to no significant savings then. There has been no change in his circumstances after the orders were made on 7 June 2016.

5. The wife has savings in excess of $227,000 derived from the sale of a property owned by her, in addition to the livestock which she values at $20,000 and which will be sold by 31 December 2016.

6. She has the ability to pay her share of the fees of the single expert as they fall due. Any application to adjust the responsibility for the payment of the fees can be made at trial when all of the evidence about the use of the joint assets of the parties is available.

7. The application will be dismissed.

Spousal Maintenance

1. The wife currently receives an income of $500 per week from E Pty Ltd as trustee of the Masacci Family Trust (“the MFT”). That income will continue to be paid.

2. By her Application in a Case, the wife seeks an additional payment of $700 per week by way of spousal maintenance.

3. The husband opposes that application. On his behalf it is submitted that, firstly, the wife has not established that she is unable to support herself and, secondly, that he does not have the ability to pay.

4. The wife, in her Financial Statement, deposes to an income of $503 per week, inclusive of the payment from the MFT. She deposed to an income from employment as “nominal”.

5. In the financial year ended 30 June 2016, the wife earned $6,710.57 from employment. In the current financial year she has earned $1,630. In her affidavit sworn 13 July 2016, she deposed that she was about to commence two weeks of casual employment with an anticipated income of $1,600 gross. Whether that eventuated is not clear.

6. The wife has worked in many different industries at “C Town”. There is no evidence, however, that she has ever earned any meaningful income from any of her endeavours.

7. Numerous negative responses to applications for employment were annexed to her affidavit. She deposed that, when offered work, she has accepted.

8. In his 2013/2014 tax return annexed to his affidavit, the husband declared that the wife’s taxable income was $23,184. In her 2013/2014 tax return she was described as a “live-stock producer” and declared a net loss from live-stock production of $13,679.

9. There is no evidence that the wife has been able to support herself, from her own endeavours, at any time during the relationship.

10. I accept that she is presently unable to support herself.

The husband’s ability to pay

1. The husband operates and controls retail franchises.

2. In his Financial Statement sworn 6 October 2016, he declares his income from wages as at June 2016 to be $3,087 per week. In addition, he deposed that he draws $1,103 per week from the MFT. In the financial year ended 30 June 2016, he had drawn from the MFT a total of $57,364. He also receives an honorarium of $370 per week.

3. In his affidavit sworn 6 October 2016, the husband deposed that he has a tax liability of $81,618, the first payment of $20,903 due to be paid on 28 October 2016. He deposed “As I do not have sufficient income to meet ongoing payments I will be required to draw down further funds from the [MFT] to pay my tax liability”. The husband proposes to draw $1,608 per week from the MFT to meet his tax liability.  

4. The Balance Sheet of the MFT for the financial year ended 30 June 2016, which is annexed to the affidavit of the wife, does not include those pages which set out the income earned and the operating costs. It is not possible to determine whether the MFT made an operating profit. The Balance Sheet discloses that the MFT has net assets of $452,189. One of its liabilities is a debt to the husband of $81,733.

5. The husband claims to have weekly expenses of $5,708. Those expenses include $374 for the chattel mortgage of a tractor which is owned and paid for by the MFT and $374 per week for credit card repayments. Since the credit cards must have been used to pay personal expenses which are already accounted for in the Financial Statement, this is a double counting and will be disallowed. In the husband’s Part N expenses, he claims rent for accommodation in Sydney of $600 per week. He deposed that he lives at “C Town”. His accommodation in the city is reimbursed if he stays in the city for work and is discretionary if he stays for pleasure. This claim will be disallowed. On that basis, the husband has expenses of $4,360 and a disposable income of $201, but he also has an ability to draw from the MFT. That ability is unquantified because the husband did not provide the profit and loss statements of the MFT to establish what its net income is.

6. The wife claims expenses for herself of $1,395 per week. It was not claimed that those expenses were excessive. She has a demonstrated need for $892 in addition to her income of $503.

7. The husband has an ability to pay a small portion of that and he will be ordered to pay the wife $250 per week.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 28 October 2016.

Associate:

Date:  28/10/2016