BONNETT & BONNETT
[2019] FamCA 708
•4 October 2019
FAMILY COURT OF AUSTRALIA
| BONNETT & BONNETT | [2019] FamCA 708 |
| FAMILY LAW – PROPERTY – An interim application made by the wife for sale of matrimonial property – Where the husband resides in such property and opposes sale –Where husband proposes retaining the relevant property on a final basis – Where sale would be punitive and result in a position unable to be rectified – Application dismissed. FAMILY LAW – CHILD SUPPORT – An application made by the husband for interim child support departure orders to be dismissed – Where there was no appeal – Where the husband was unemployed for a period and unable to meet payments – Where the husband regained employment and thus, a capacity to meet payments – Where contributions during the period of unemployment can be considered at trial – Where the husband has not made full financial disclosure – Application dismissed. FAMILY LAW – COSTS – Where both parties were unsuccessful in their applications – Where it is appropriate for the general principle to apply that each party bear their own costs – Applications for costs dismissed. | |||
| APPLICANT: | Ms Bonnett | ||
| RESPONDENT: | Mr Bonnett |
| FILE NUMBER: | NCC | 3644 | of | 2017 |
| DATE DELIVERED: | 4 October 2019 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 27 September 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs Kearney |
| SOLICITOR FOR THE APPLICANT: | Merridy Elphick Lawyers |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| THE RESPONDENT: | Representing himself |
Orders
The application of the husband for Order 2 contained in his Application in Case filed 17 December 2018 is dismissed.
The application of the wife for Orders 1, 1.1, 2.3.1, 2.4, 2.5, 2.5.1 and 11 contained in her Response to an Application in a Case filed 12 March 2019 is dismissed.
No order as to costs.
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 Bonnett & Bonnett 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 NEWCASTLE |
FILE NUMBER: NCC 3644 of 2017
| Ms Bonnett |
Applicant
And
| Mr Bonnett |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a residual dispute, relating to one matrimonial property (“Suburb B”) and Child Support Departure, held over from applications in a case, earlier determined by me.
On 19 March 2019 orders were made by me by consent (Orders 1 to 19 inclusive) and after determination of particular issues (Orders 21 and 22). Two orders sought, one by each of the parties, were stood over.
Those two orders sought, came back before me in a Duty List on 27 September 2019.
History of the two issues in dispute
The wife was the original applicant for a Departure from a Child Support Assessment. The relevant orders were included in interim orders sought in the Initiating Application of the wife filed 22 November 2017.
By his Response filed 30 January 2018 the husband opposed the Departure Application and sought its dismissal.
On 2 February 2018 interim orders were made by consent across a range of issues.
On 22 February 2018 the unresolved issues including Child Support Departure Orders were heard and determined as follows.
In summary the departure orders provided for the husband to pay child support of:
1) $797 per week ($286 per child) - $41,444 p.a
2) School fees, private health insurance, medical
and other therapeutic fees
and the cost of extra-curricular activities
to a maximum of - $41,600 p.a
Total $83,044 p.a
There was no appeal from this decision.
On 16 July 2018 the wife filed an Application in a Case seeking a raft of orders including for the sale of the Suburb B property.
By his Response filed 27 July 2018 the husband applied to set aside the Child Support Departure Orders.
Over a period, the parties engaged with the registrar including in a Conciliation Conference in an attempt to settle the dispute.
On 2 August 2018 orders were made by consent including for the sale of Suburb B property amongst others.
Subsequently, being aware of the unemployment of the husband, the wife consented to the removal of the Suburb B property from the list.
On 19 November 2018 the husband was directed to file a fresh Application in a Case if there were additional or different orders to those sought in his Response filed in July 2018.
On 17 December 2018 the husband did file an Application in a Case in accordance with that direction.
On 12 March 2019 the wife filed her Response to that Application in a Case now pressing for sale of Suburb B.
On 19 March 2019 the matter came before me.
Again there were orders made by consent and some issues determined. Only the sale of Suburb B and the Child Support Departure Orders remained.
On 27 September 2019 I heard and will now determine the two remaining issues.
For the husband
From his Application in a Case filed on 17 December 2018, Order 2, namely:
[2]That interim child support departure Orders 4, 5 and 6 of orders made on 22 February 2018 be discharged effective 31 December 2018.
The parties have three children aged almost 11, eight and five. The oldest child suffered a stroke in utero. He has diagnoses of cerebral palsy and autism. The middle child has been diagnosed with an anxiety disorder.
The father submitted that his financial position was inaccurately represented by his documents put before the Court when the application was determined. That would have been a matter for a timely appeal.
He also submits that he could not meet the costs of that child support departure order whilst he was not working.
It is conceded that the husband was dismissed from his employment in July 2018. He received a redundancy payment of $56,673 representing 3 months salary in lieu of notice.
For a period of about eight months after July 2018 the husband was unemployed and was not easily able to meet those expenses, although he did so, probably with the assistance of his current wife as he submitted.
In that respect the husband made some, but not full, disclosure of the financial position of his current wife. He provided an estimated net figure for her weekly income as $1818. He attributed E$1264 to his wife for weekly expenses met by him. He also declared a contribution, to his expenses by her, of $475.
The position was unclear as submitted by counsel for the wife. The husband asserted that his current wife did not wish to disclose her financial position. If that is so, the consequences properly fall on the husband not the wife in these proceedings.
In about April 2019 the husband regained employment with a salary of approximately $270,000 per annum, plus use of a car. I am satisfied that he regained the capacity to meet the child support orders which were made.
His proposal for the discharge of the order to be effective from the end of 2018 would in effect generate a credit in child support of approximately $62,000. The outcome would be that the children would immediately be without support and that credit would be applied to any assessment of child support, retrospectively and for the future.
The child support departure order was made pending further order. It is not final.
The hardship issue contended for, for the period of unemployment is more appropriately dealt with at trial as a factor for consideration for adjustment pursuant to Section 75(2) of the Family Law Act 1975 (Cth), or as a factor in a negotiated settlement.
For the wife
From her Response [to an Application in a Case] filed by the wife on 12 March 2019, as follows:
[1]That within 28 days of the date of orders the parties do all acts and things and sign all documents to list for sale the following properties (the investment properties):
1.1C Street, Suburb B Queensland being Lot … in BRP … (‘the Suburb B property’).
[2.3.1]The Suburb B property shall be listed with Suburb B Realty;
[2.4]That within 7 days of the date of orders the husband provide written authorities to each of Suburb B Realty, D Realty and F Real Estate to take all instructions and all authorities necessary for the sale of the investment properties from the wife.
[2.5]That the list prices of each of the investment properties shall be such amounts as agreement between the parties and failing agreement within 14 days of the date of orders the list price for each of the investment properties will be as follows:
2.5.1 The Suburb B property $392,875
[11]Costs of and incidental to this application.
The sale of Suburb B
The wife seeks to have the Suburb B property sold because the husband on his own evidence has not been able to keep up to date with outgoings in respect of the property, such as rates and strata levies. The husband began repaying the mortgage on an interest only basis.
I do not propose to make such an order.
The husband lives in the property with his current wife and wishes to retain it on a final basis. Without more, it would be unduly punitive to require the husband to sell a property which he alone wishes to retain. The position could not be rectified.
The decision of the husband to move into the Suburb B property early in 2019 alleviated financial pressure whilst he was unemployed. An analysis of the cost of losing rental income through the action of the husband living in the property is also an adjusting factor to be considered at trial or in a negotiated settlement.
Costs
Each of the parties has been unsuccessful. The principle that each party pay his or her own cost should apply.
Orders are made accordingly.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 4 October 2019.
Associate:
Date: 4 October 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Remedies
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Appeal
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