Birch and Millett

[2017] FCCA 2557

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIRCH & MILLETT [2017] FCCA 2557

Catchwords:
FAMILY LAW – Interim maintenance – non-compliance with directions for filing.

Legislation:

Family Law Act 1975

Applicant: MR BIRCH

Respondent: MS MILLETT

File Number: MLC 1262 of 2017

Judgment of: Judge Harland

Hearing date: 12 October 2017

Date of Last Submission: 12 October 2017

Delivered at: Melbourne

Delivered on: 12 October 2017

REPRESENTATION

Counsel for the Applicant: Mr Mellas

Solicitors for the Applicant: Berry Family Law

Counsel for the Respondent: Ms Carter

Solicitors for the Respondent: Armstrong Legal

ORDERS

1. Until further order, the applicant father pay to the respondent mother maintenance at the rate of $500 per week.

2. Order 5 of the orders made on 11 August 2017 be amended insofar as the date for filing of the affidavit of evidence in chief and any affidavit of any witness which the party seeks to rely on at trial be extended until 31 October 2017.

3. There be interim parenting orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 12 October 2017 (“the minute”) and:

   (a)The minute be placed on the Court file;

   (b)The solicitors for the respondent engross the minute and deliver a clean, certified, electronic copy of the minute (“the copy”) to the Chambers of Judge Harland by way of email to [email protected] within seven days; and

   (c)Upon delivery of the copy to the Court, the within orders be extracted and the copy be attached hereto.

AND THE COURT NOTES THAT:

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Birch & Millett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1262 of 2017

MR BIRCH

Applicant

And

MS MILLETT

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is the wife’s application for interim maintenance in the sum of $500 a week.  The husband quite properly concedes that the wife has a need, but says he does not have the capacity to pay it.  The figures in her financial statement were not challenged.  The husband’s financial statement is conceded by him to contain several errors.  The gross figure for the husband’s income is not $1,698, but, in fact, $2,260, there being a difference of $562 per week.  The husband’s tax liability is greater than what appears in his financial statement, being $746 instead of $431, being a difference of $315.  As a result of those figures, the husband’s net income is $247 a week greater than as deposed by him.

3. At part G, item 20, he says he pays $170 a week in superannuation, but that is, in fact, his employer contribution, not an additional payment by him personally.  Item 27 is also inaccurate, and the husband concedes that he does not, in fact, pay the wife’s registration but only his own. He claims to pay $28 per week for both cars.  I have halved that figure. 

4. The wife has asked the husband to cease paying $31 a week at item 25 for her life insurance, as she says she needs the funds.  There is a dispute between the parties as to why that has not happened, but I think it is conceded that that request has been made.  The total weekly expenditure that is shown at item 32 is also incorrect.  It says that his total other expenditure is $612 a week, but part N has a total of $551 a week for his other expenses.

5. He claims that he spends $150 a week on petrol, which would result in him filling his car with petrol a few times a week.  He does not address this in evidence, but instructs his Counsel that he has to do a lot of driving for his employment.  He also claims $100 a week in entertainment.  Exhibit A is a transaction summary from a Tabcorp, which shows that the husband has spent significant funds on gambling form 30 June 2016 to 26 September 2017, spending some $24,507 on bets, having received debitings and refunds of $17,762.96, resulting in a loss of around $6000.

6. By making the corrections to the husband’s financial statements, even allowing for the full amount of petrol at $150, the husband has capacity to pay the $500 a week that is sought by the wife and, in fact, the figure is a bit more than that, and I am going to make an order that the husband pay the amount of $500 a week that the wife seeks.

7. I have to make some comments on the financial statement and the procedural history of this matter.  The husband commenced his application on 13 February 2017.  When it came before me on 6 March 2017, various orders were made with respect to parenting and financial issues, and the matter was listed for final hearing commencing 15 March 2018.  That is actually a lot earlier than many people get in this Court.

8. I made further orders on 19 June 2017, including direction – and I note this direction and the timing of it was by consent – that the husband file and serve the private family report by 4 August 2017.  To date, that report has not been filed, and I have received no explanation as to why this is so, and, despite this, there was indication that the husband wanted to make an oral application for a change of residence.

9. A timetable for filing of material was also made on that date, with the husband to file and serve further material with respect to interim parenting and maintenance issues by 29 June 2017.  He complied with this insofar as the parenting issues were concerned, but not the financial issues.  The respondent was directed to file and serve material by 11 July 2017, and she did so on that date with respect to both parenting and financial issues.

10. The matter was listed for interim parenting and maintenance issues on 11 August 2017.  On that occasion, I became unwell and was not able to conduct the hearing.  The matter was adjourned to today and directions made that the parties file any further material by 6 October 2017.  The wife complied with that and filed an updated financial statement on 6 October 2017.  The husband did not.  The husband filed a financial statement yesterday.  It has not yet reached the file.  I did not allow the husband to rely on that financial statement due to the noncompliance with my orders and, again, a lack of satisfactory explanation as to why that is so.

11. Furthermore, I am told that that financial statement filed yesterday is also inaccurate.  I find it very concerning that the financial statement has not just one inaccuracy, but several.  No one would say that the financial statements that people are required to file in this Court are straightforward or simple.  It is a complex form, but it is an affidavit, and it clearly states on the front of that form that the deponent of the affidavit has read the rules, the information is within their personal knowledge and that where they have given an estimate, they have given it based on that knowledge and given in good faith.

12. Clearly, at best, the way this form has been completed is with recklessness or negligence.  The wife says it is misleading.  It certainly is misleading, whether or not that was the intention.  It concerns me that it appears that the same errors, at least with respect to income, have been made on the further statement.  The father is represented by an experienced family law firm.  I refuse the application for an adjournment today.  The wife has now been waiting for some period for her maintenance application to be determined, and I accept it is not the parties’ fault that it was adjourned on the last occasion.

13. The husband has had two months to file material.  He has never filed the family report, and has not filed any financial material since 13 February 2017.  So any prejudice he feels that there is to them is entirely of his own making.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 23 October 2017