Cander & Cander

[2007] FamCA 1540

FAMILY COURT OF AUSTRALIA

CANDER & CANDER [2007] FamCA 1540

FAMILY LAW – CHILD SUPPORT – Arrears – Interim consent orders – Where Father in Papua New Guinea – Where dispute as to child support owing – Where Father proposes payment of arrears by Father out of capital sum held by family company – Where proposal might have effect of dissipating assets before settlement –Consent orders denied

Family Law Act 1975 (Cth)

APPLICANT:

Mr Cander

RESPONDENT: Ms Cander

FILE NUMBER: BRC 11053 of 2007

DATE DELIVERED: 16 November 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 16 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Carrigan of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: Nicol Robinson Halletts, Solicitors

SOLICITOR FOR THE RESPONDENT: Mr Heading, Solicitor from Wonderley & Hall, Solicitors appeared for the Respondent Mother

Orders

IT IS ORDERED BY CONSENT (UNTIL FURTHER ORDER) THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Interim Consent Orders” sealed and attached hereto.

IT IS FURTHER ORDERED THAT:

1. The Undertaking of the Husband to only draw legal expenses and outlays for himself be limited to any legal fees relative to his Applications in Form 1 and 2 filed 18 September 2007.

2. The Father’s Application in Form 2 filed 18 September 2007 be removed from the list of cases awaiting finalisation.

3. The Father’s Application in Form 1 filed 18 September 2007 is adjourned before Justice Barry at 9.30 am on 14 April 2008 for mention.

4. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS DIRECTED THAT:

1. The Interim Consent Orders remain upon the Court file.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC11053 of 2007

MR CANDER

Applicant

And

MS CANDER

Respondent

REASONS FOR JUDGMENT

1. I am asked to make interim consent orders which have been drafted in this matter.  The parties are legally represented.  The applicant husband is in Papua New Guinea.  He attended the hearing for part of the time by phone link.  The interim consent orders commenced with an undertaking and it was submitted that the undertaking as drafted should be amended in two respects; the first to insert an additional clause in the opening paragraph after the date 18 September 2007 which reads:

   "and to take all necessary steps to ensure that [Ms R] will not dissipate or dispose of the funds referred to as account […]3 in clause 37 of the husband’s financial statement sworn 15 November 2007.”

2. I note that in the husband's financial statement under the heading "Additional Information"  on page 12 he says therein:

   "the $290,898 referred to at item 37 held in [Ms R]'s bank account are the balance of proceeds of sale of a property owned by [M] Ltd which was jointly owned by the respondent and I.  $94,898 of this money is needed to pay back an unsecured loan to [B] Ltd which was used to service the mortgage for the property at [E] in Port Moresby.”

3. I have spoken to the applicant husband.  He confirms that money in that account, albeit in an account in the name of Ms R is under his control and that he is able to ensure that that undertaking is complied with.  I will allow the undertaking to be amended accordingly and I will accept an oral undertaking because of the exigencies of the situation that the applicant husband is in New Guinea and the matter is late on a Friday afternoon and we are unable to receive the fax of an amended undertaking.

4. The second aspect where an amendment is sought to the undertaking is to delete paragraph number 2 of the undertaking.  What is proposed is that the money in the ANZ bank account will be frozen apart from paying New Guinea tax for the company M Ltd and the applicant will have to disclose documents relevant to the taxation assessment.  Presumably it is in the interests of both parties to keep any taxation to a minimum.  There is also provision for payment of legal expenses on a dollar for dollar basis.  If the husband wishes to pay his own lawyers then he has to pay a similar amount to the respondent's lawyers.

5. I am asked to make a determination on the proposed provision that the husband pay child support payments from out of the capital sum.  He says yes, she says no.  The position is the husband says he is employed by the company of which his partner is the manager.  She draws a wage of $851, he draws a wage of $851 and there is $520 paid by the company by way of rent, electricity, telephone, gas, water, fuel and registration.  In his additional information provision the husband says:

   "The majority of my other living costs are covered by my partner [Ms R] as virtually all my money goes towards paying child support and the legal fees associated with my divorce.”

6. Mr Carrigan submits that if one does the sums, looks at his income of $851 less total tax of $306, that leaves a sum of $545.  The provision as contained in the orders is for $530 will leave the husband with $15 a week.  However, that is $15 a week where he has his rent paid, gas, water, telephone and all vehicle expenses as part of the employment package.  It also leaves his partner with $851.  It appears there is no difficulty with her previously contributing those moneys to the parties' joint support for food and presumably entertainment and other living expenses.

7. The child support enforcement is to be suspended by consent on condition that the husband continues to pay the sum of $530 a week for support for the children.  It is the respondent wife's case that it is inherently unfair that he be able to draw for child support from one of the few remaining assets, a capital sum which has been realised on the sale of a property which is effectively the property of both parties.

8. The husband for his part says his financial circumstances are such that he has to draw on the child support from the capital sum and it will all be brought into account ultimately during a closed mediation between the parties.  That may be so, but it may also be that the capital sum has significantly diminished by that time by the payment of income tax, by the payment of legal expenses and so forth.

9. The view that I take in the whole of the circumstances is that it is preferable that I delete the reference to child support payments and rule such payments can only be paid from income.  It is not for a great period of time, in fact it will only be a fraction of the overall arrears asserted.  There is conflict between the parties. The wife seems to say that although there has been some miscalculations the arrears are in the order of $52,000.  I leave aside any question of penalties.  The husband seems to be asserting that there has been significant double counting by the Child Support Agency and his liability should be significantly less than that.

10. But at this stage for the reasons given I will delete paragraph 2 of the undertaking, I will renumber paragraph 3 as paragraph 2.  The other orders provide for child related orders which are not disputed.  The parties are to act in good faith and participate in a mediation in respect to the issues in dispute, namely the property settlement arrears, interest accruing thereon and arrears of child support and that mediation is to be arranged prior to 1 April next year.  They are to agree on a mediator within 28 days.  The parties have agreed to share the costs of a mediator one half each. 

11. I am satisfied that the orders are appropriate.

    ORDER DELIVERED

12. The undertaking of the husband will be noted.

    RECORDED:  NOT TRANSCRIBED

13. Monday, 14 April at 9.30.

    RECORDED:  NOT TRANSCRIBED

    ORDER DELIVERED

    RECORDED:  NOT TRANSCRIBED

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate 

Date:  16 November 2007