BOSTON & BOSTON

[2013] FamCA 439

FAMILY COURT OF AUSTRALIA

BOSTON & BOSTON [2013] FamCA 439

FAMILY LAW – CHILDREN – Application by the father to take the child on a holiday overseas in the July 2013 school holidays – where the mother opposes the application – best interests – where there is a lack of information concerning the funding of the travel – no orders made allowing the father to take the child on the requested holiday.

FAMILY LAW – PROPERTY – Interim distribution – where the mother seeks orders providing for the discharge of school fees and the discharge of arrears relating to outstanding loans over the former matrimonial home and then the division of the balance of the proceeds as partial property settlement – orders made.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Boston

RESPONDENT: Ms Boston

FILE NUMBER: ADC 1946 of 2012

DATE DELIVERED: 31 May 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 31 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hurley

SOLICITOR FOR THE APPLICANT: Stevanja & Associates

COUNSEL FOR THE RESPONDENT: Mr Berman, SC

SOLICITOR FOR THE RESPONDENT: David Burrell & Co

Orders

Upon noting the Court declines to make an order in relation to:

(a)      the sale of the former matrimonial home; and

(b)the child R travelling overseas with the husband to Switzerland at this time.

1. B Accountants, do release the monies currently held by them:

   (a)firstly, to discharge all arrears with respect to the children R born on … September 2002 and L born on … May 1996 with respect to school fees at C School and D School up until the date hereof and cover the fees in advance to the end of 2013;

   (b)secondly, that all arrears outstanding by way of debt due to the ANZ Bank secured over the former matrimonial home be discharged;

   (c)the sum of FORTY THOUSAND DOLLARS [$40,000.00] be held in an interest bearing account in the joint names of the parties’ solicitors pending further order in relation to costs;

   (d)the remaining balance to be paid by way of partial property settlement and to be divided equally between the parties and paid to their respective solicitors.

2. The question of both parties’ costs of the Application in a Case filed by the husband on 8 May 2013 and the Response to an Application in a Case filed by the wife on 29 May 2013 are reserved to be determined on a date to be fixed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1946 of 2012

Mr Boston

Applicant

And

Ms Boston

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today the adjourned hearing of the Application in a Case filed by the husband on 8 May 2013 which sets out the orders formerly sought in earlier proceedings concerning both financial matters and children’s matters.  I have heard argument from counsel before me today.  This is a 9.15 am interim hearing on the papers, some of which I have received over the appropriate objections of the husband’s counsel.

2. The affidavit material of the wife which was filed out of time notwithstanding the clear orders made on 10 May 2013.  I have also received the affidavit filed on behalf of the husband from his solicitors in relation to costs and other matters. 

3. The Application in a Case filed on 8 May 2013 seeks various orders.  The first of them is the sale of the former matrimonial home and the disposal of the proceeds.

4. That application is opposed by the wife on the basis that she believes she will be able to seek to retain the former matrimonial home notwithstanding the substantial debts outstanding in relation to the same and the current pending litigation in relation to the E Superannuation Fund. 

5. The orders also sought that by way of partial property settlement funds held by B Accountants, be released to discharge all arrears in relation to the children’s school fees and by way of partial property settlement be divided equally between the parties with the husband’s portion to be paid to the solicitors’ trust account.

6. The wife seeks orders which provide for the discharge of the school fees, the discharge of the arrears due to the ANZ Bank in relation to the outstanding loans secured on the former matrimonial home and then the division of the balance of the proceeds.  The parties, notwithstanding there is some agreement concerning the school fees, have been unable to come to any sensible arrangement in relation to the funds which apparently are approximately $154,000 sitting in the B Accountants accounts.

7. The Court is unable to determine all of the facts necessary to apply all of the appropriate principles because of the huge disagreement between the parties about the necessary factors.  However on an interim basis, it is appropriate that the orders provide for the B Accountants funds to be used to discharge the arrears in relation to the school fees.  It would seem sensible and appropriate to discharge the arrears now due to the ANZ Bank in relation to former matrimonial home.

8. In relation to the question of costs that may be sought by the husband in relation to the wife’s opposition to the orders which he seeks, I propose to order that a separate sum be set aside and held in a joint trust account in the names of the parties’ solicitors to await any order that might be made in due course in relation to costs and then thereafter have the balance divided equally between the parties by way of interim property settlement.

9. The order in relation to the B Accountants funds will be that B Accountants do release the monies currently held by them.

10. The orders in relation to the former matrimonial home are not made at this stage.  It is not appropriate, taking into account the difficulty in ascertaining all of the necessary factors, that that order which could not be reversed should be made at this stage.  In due course, if the factors which are asserted are determined in favour of the husband, then further consideration can be given to making such an order in the final proceedings.

11. In relation to the question of discovery, the parties need to ensure that they have both received counsel’s full advice in relation to further and full discovery of all documents in the power, possession or control of each of the parties to ensure that the Court has available to it all the appropriate information and to make inspection of all such appropriate documents available to the other party.  That is in accordance with the rules and should be done forthwith in any event.

12. The application by the husband seeks to have orders discharged to allow the child R, who was born in September 2002, to travel overseas with the father for the July 2013 school holiday period.  The affidavit of the father filed in support of that explains that the proposal is that the child will travel with the father and his current partner to Switzerland, USA City G and USA State H in the period from 4 July to 28 July 2013.

13. I refer to paragraphs 46 and onwards of the affidavit of the husband filed on 7 May 2013.  The affidavit sets out the fact that the current partner, Ms F, is American and her family reside in USA State H. 

14. The affidavit also sets out that the father has relatives in Switzerland who have spent much time together with the father and the children.  The affidavit does not provide any particulars as to the payment of the cost of travel, but it is alleged by the wife that this has been funded by the husband’s partner. 

15. When considering the proposed travel, I have to take into account what is in the best interests of the child.  The factors in section 60CC, do not deal particularly with this issue other than in relation to the question of the relationship between the child and the parents and their attitude to their responsibilities.  The Court has been asked to make a finding that it is in the best interests of the child to travel overseas with the father for a holiday, notwithstanding the concerns of the mother about the risk of the child not returning and the lack of information concerning the funding of the travel and the need for this overseas holiday during a period when there is considerable dispute between the parties and ongoing litigation.

16. I am therefore not satisfied on the information that I have before me that it has been established that it is in the best interests of the child R to travel overseas this July.  I decline to make the order. 

17. In relation to the other applications outstanding, I have declined to order the sale of the former matrimonial home. 

18. On the affidavit material before the Court it is not appropriate on an interim basis to order that the current arrangements change so that there is a shared week about arrangement.

19. The Court does not have before it sufficient information that would justify on an interim basis that significant change. 

20. The response to the Application in a Case filed by the wife deals with the proposed sale of the units at J Unit Trust and for monies from that sale to be used to discharge the ANZ home loan and the E Superannuation Fund loan, and the balance to be invested pending the property settlement.

21. I am not satisfied on the information that I have available before me that such an order is appropriate on an interim basis.  It appears to be opposed by the husband. 

22. On the issue of costs, as is clear from my reasons, there are numerous factors which I have taken into account in making the orders which I have made today. 

23. The question of the costs of the parties to date will need to be considered at a later date.  In particular, I would not lose sight of the fact that in that argument counsel will no doubt raise with me the failure of the wife to comply with the orders on time and the ongoing failure, (and lack of explanation) to comply with the order in relation to valuations.

24. The question of both parties’ costs of the Application in a Case and Response are reserved to determination on a later date.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 31 May 2013.

Associate: 

Date:  13 June 2013