BREEN & HUNTER

[2014] FamCA 1247

FAMILY COURT OF AUSTRALIA

BREEN & HUNTER [2014] FamCA 1247

FAMILY LAW – PROPERTY – INTERIM PROPERTY – Where husband seeks interim spousal maintenance/and or interim partial property settlement – Orders made that wife pay interim spousal maintenance to the husband - Orders made for interim property settlement.

FAMILY LAW – CHILD SUPPORT – Application by husband for a departure against administrative assessment – Application dismissed as was not argued.

Family Law Act 1975 (Cth)

APPLICANT: Mr Breen

RESPONDENT: Ms Hunter

FILE NUMBER: SYC 3776 of 2014

DATE DELIVERED: 16 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 16 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms G Meredith

SOLICITOR FOR THE APPLICANT: Gayle Meredith & Associates

COUNSEL FOR THE RESPONDENT: Ms S Pearson

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

1. The husband’s interim or procedural application for a departure order in relation to the child support assessment (issued 20 May 2014) was not argued and is dismissed.

2. UNTIL FURTHER ORDER the wife pay to the husband spousal maintenance of $3,250.00 per month, the first monthly payment to be made within seven (7) days from the date of this order and thereafter monthly.

3. UNTIL FURTHER ORDER the wife pay the monthly lease payments of $1,965.84 as and when they fall due; being those in respect of the … Land Rover … motor vehicle in the wife’s name and in the possession of the husband.

4. BY WAY OF INTERIM PROPERTY ORDERS;

   a.Within seven (7) days from the date of making these orders the wife do all acts and things and sign all documents necessary, including delivering the cheque book to the husband, to enable the husband to progressively draw $100,000 from the loan secured by the C property mortgage (being Mortgage No. …9N) (‘the C mortgage’) to the ANZ Bank by way of property settlement for the husband, including towards the payment of his legal fees.

   b.A consequential order that the wife pay or cause to be paid the principal, interest and charges in respect of the C mortgage secured over property at B Street, Town C in New South Wales.

   c.The wife pay a further sum of $70,000 to the husband by way of partial property settlement twelve (12) months from the date of this order.

5. BY CONSENT the wife pay or cause to be paid the costs rendered by any single expert engaged or ordered to be engaged in these proceedings provided that the husband shall reimburse the wife for one half of such costs at the conclusion of these proceedings, contemporaneously with the receipt by him of monies held by way of property settlement or at the time of implementation of such property settlement.

6. All extant applications for interim or procedural orders sought by the husband in his application filed 20 June 2014 are dismissed.

   IT IS CERTIFIED

7. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Breen & Hunter 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 SYDNEY

FILE NUMBER: SYC 3776 of 2014

Mr Breen

Applicant

And

Ms Hunter

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Breen (‘the husband’) commenced proceedings against Ms Hunter (‘the wife’) in June of this year by way of an initiating application.  The interim orders which the husband sought came for hearing before me yesterday.  They fell into three substantive areas.  The first was that the husband sought a departure from child support in relation to an assessment issued May 2014.  The second was that he sought spousal maintenance in three areas: firstly, $4,000 per month; secondly, by way of payments of just under $2,000 per month for a motor vehicle.  The third was repayments on a housing loan.

2. In addition, he sought an interim property distribution of about $170,000 to $172,000.  Initially the husband sought $200,000, but during submission this claim was reduced given the wife’s agreement to pay the costs of single experts as and when they fell due but on the basis that the husband contribute one half towards those costs out of the eventual property settlement.  That latter aspect appeared not to be in issue, although the wife made it clear she was happy to do so without the need of an order.  However, I will make that order given the lack of trust that exists between the parties.

THE ISSUES

1. One of the issues, which related to child support, disappeared during submissions.  This was not argued as there were some technical issues, which senior counsel for the husband could not reasonably address in the course of his submissions.  As such, it was not pursued and I have dismissed that interim or interlocutory application.

2. What were then left, in essence, were the question of spousal maintenance and the question of interim property.  In terms of interim property the claim was for $170,000 or $172,000.  The wife had indicated in her minute of order that she was content, subject to some conditions, to enable the husband to draw up to $100,000 against the mortgage over the home in which he was residing. 

3. The wife tendered an outline of her case and set out the documents upon which she relied, namely:-

   (a)her response to initiating application;

   (b)her financial statement of 16 September 2014;

   (c)an affidavit of Mr L of 14 December 2014;

   (d)her affidavit of 14 December; and

   (e)her updated financial statement of 14 December. 

4. The husband relied upon submissions prepared by his senior counsel and set out the affidavits and material which he relied upon.  They were:-

   (a)his initiating application filed 20 June;

   (b)his affidavit sworn on 19 June and filed 20 June;

   (c)his financial statement filed on 19 June 2014 and sworn on the 20 June 2014;

   (d)his updated affidavit sworn 3 December 2014;

   (e)an affidavit by Professor G sworn 5 November 2014; and

   (f)an affidavit of Mr Z sworn 10 December 2014.

BACKGROUND AND DISCUSSION

1. The wife is aged 47.  The husband is aged 46.  The parties allegedly commenced cohabitation in 2003.  The have one child Y (‘the child’) who was born in 2006 and is currently aged eight.  She lives about nine days a fortnight during school term with the father and about five days a fortnight with the mother.  The parties married in mid-2013 and separated, apparently, in January of this year.  Child Support Assessments were issued in May of this year and proceedings commenced in June of this year.  The parties had a Case Assessment Conference in September of this year. 

2. The parties are in issue in relation to quite a number of factors.  The first is the pool of assets.  The wife is of the view that the pool of assets is somewhere between $4 and $5 million in total.  The husband’s case is that the pool of assets is in the vicinity of $20 million or more.  The wife, and it is not in issue, contributed significantly in money terms to the creation of that pool of assets.  The wife seeks an order that the husband be paid $700,000 out of the proceeds of sale of the matrimonial home, which property the husband wishes to retain. 

3. I accept the submission by senior counsel on behalf of the husband that the amounts he seeks, given the amount that the wife concedes he ought to be paid, establish a prima facie case for orders for an interim property settlement. 

4. The husband in his affidavit sets out that the costs of these proceedings up to a conciliation conference will be about $46,000 to $50,000.  He says that the cost of continuing the hearing from there to a final hearing, including an amount of about $30,000 for expert fees, would have been a further $150,000.  Given that the wife has agreed to meet these subject to an adjustment on final hearing, the amount the husband seeks is now, as I said, about $170,000.

5. I am satisfied that the husband has a need of those funds.  The question is whether I ought to make the order having regard to the usual authorities and principles that I have to adopt in that respect. 

6. The husband’s submissions are that the wife has immense financial capacity and refers to her ability to rehouse herself.  In addition he complains at some levels about the limits of disclosure made by the wife.  The wife, on the other hand, says that she does not have that extent of property but has significant property available to her, albeit in the context of a Sydney property matter not an immense financial capacity.  The wife concedes in her submissions that she had earnings of some net $700,000 in the last financial year and in addition to that sum was able to pay tax of some $500,000 thousand dollars, or thereabouts. 

7. I was taken to various documents by senior counsel for the husband in relation to the wife’s capacity to pay and displaying certain funds.  The wife argued that looking at those accounts out of context had the capacity to mislead the Court.  In that respect she is quite correct.  However, I am satisfied given the evidence before me that the wife is well able to afford the difference of some $70,000 between the course that she suggested and that which is sought by the husband.  However, I do not intend to order payment of that sum immediately. 

8. I intend to make an order for payment of that sum to take place in 12 months time given that it is apparently clear that this matter will not be heard within the year.  It is more likely to be finally heard within two years and the husband will have available to him over that 12 month period the sum of about $100,000 by way of partial property settlement.  I do not intend to place the restrictions on those sums as sought by the wife.  I intend to simply enable the husband to draw the $100,000 as and when he chooses.  I will be ordering the payment of the $70,000 in 12 months time.

9. I am then left with the three issues regarding spousal maintenance.  One of them is in essence conceded; if I have read the material correctly and if I have not I will invite counsel or solicitors at this stage to interrupt.  The wife, in her case, said she would make the repayments on the housing loan if that drawing was made.  I have taken it on that basis.  Accordingly, that order will be made.  The question is whether I ought to order the payment of the $1,964 or thereabouts in the repayment for the car being used by or for the husband and a sum of about $4,000 per month in addition, by way of spousal maintenance.  The first question to which I was taken by the solicitor for the wife, was the threshold question of whether there was a need.

10. The husband’s case was, to all intents and purposes, that he does not have the capacity to work.  He relied on his evidence, including a report by his psychologist Mr N, which seemed, at some level, to go beyond the role of a psychologist.  He also relied on the evidence of Dr G, who said it is unlikely that the husband will be able to sustain employment into the future.  That evidence of Dr G was untested and remains untested, but was criticised by the solicitor for the wife in terms of the limited interaction that the husband had had with him in 2009, 2012 and then the provision of this report.

11. I have considered those submissions.  I have also considered the evidence of the wife and the wife’s other witness in relation to the husband’s capacity to work.  On the material before me, I am satisfied, on balance, in terms of an interim basis, that the husband has crossed that threshold.  I have at least sustained that if, on a final hearing, there is proper testing of that evidence and if it is established that the husband ought not to have received the maintenance to which I intend to direct payment, it can be adjusted or should be adjusted by a court in exercising the broader discretion of a property adjustment, having regard to the s 79(2) factors and the relative contributions.  Accordingly, I am satisfied the threshold has been passed.

12. I am also satisfied, given the evidence and the concessions made by the wife that she has the capacity to pay.  The husband has the care of the parties’ child and has used the car for some time and the loan repayments have been met.  The car repayments are described as lease payments and I see no reason why, in all of the circumstances and given the significant income of the wife, she should not continue on an interim basis to pay that sum of $1,964 per month as and when they fall due until the final hearing.  In terms of the husband’s expenses, he claims in his initial financial statement $1,201 per week plus other expenses and claims about $2,000 or more in his affidavit.

13. The effect of the current arrangements is that the husband lives in the former matrimonial home with the child and pays little or no rent.  He pays about $45 per week, council rates at about $52 per week, and insurance on the house.  It accommodates the father and their child.  There was some criticism about medical insurance, although I have given that criticism little weight as it seems, on the face, a relatively modest sum.  However, other expenses seem strangely high.

14. I am not satisfied that the husband has established a basis that he needs a housekeeper, gardeners or needs to spend money at that level in terms of maintaining the property.  He claims amounts of about $80 per week in various repairs.  He claims $70 per week for petrol for his car and the motorbike.  He claims significant amounts in terms of maintenance for the house, repairs for the cars and other expenses, all of which have a sense of an ambit claim rather than a realistic claim.  I sat down and went through his expenses in terms of food and other necessary expenses, such as telephone, which seems a little high.  I reduced motor vehicle expenses and allowed for insurance and other expenses.

15. The motor vehicle expenses of some $181 a week seem high.  Hobbies, holidays and the like also seem high.  Gardening, garden supplies, tool maintenance, lawns, diesel and petrol, cleaning swimming pool and house seem exceptionally high.  Motorbike and Vehicle V registration and insurance seem somewhat high bearing in mind the husband’s alleged state of health.  The additional expenses that he seeks in his affidavit seem very high, including extra cleaning of the house and the like.  The husband has inadequate health and I have referred to that earlier.

16. The wife asserts that the husband suffers from stress, but is otherwise in good health.  The wife asserts that the husband has elected not to work since 2005 and says that he has a capacity to work at least on a part time basis.  The wife sets it out in her affidavits and in the affidavit of Mr L.  I am satisfied, on balance, on an interim basis, that this has not been made out, but of course I make no formal finding which would impact on a final hearing.  The wife is in paid employment and whilst her personal taxable income, she says, is some $193,600.  Her income and resources available in 2014 was some $1,281,000 million, which gave her a net income of about $745,000.

17. I have accepted that the husband has used capital since separation and no doubt those matters will be taken into account when contributions are considered at some later time.  The husband has the benefit of the occupation of the former matrimonial home and I have accepted that in terms of my determination.  I have accepted that the husband receives some contribution for the electricity at the home, although how it works vis-à-vis the electricity is not absolutely clear to me.  I have talked about the care and control of the children and I have considered the costs claimed the husband.  As I have said, it seems to me they are somewhat high and artificially high.

18. I have taken into account the wife’s current Child Support Assessment.  Given all of those facts, it seems to me that the amount of spousal maintenance ought to be in the sum of about $750 per week and, given these reasons, I make orders in the terms set out.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 16 December 2015.

Associate:     

Date:              16 December 2014