Canting and Canting

[2010] FamCA 700

FAMILY COURT OF AUSTRALIA

CANTING & CANTING [2010] FamCA 700

FAMILY LAW – MAINTENANCE – interim spousal maintenance

Family Law Act 1975 (Cth)

APPLICANT: Ms Canting

RESPONDENT: Mr Canting

FILE NUMBER: SYC 2598 of 2010

DATE DELIVERED: 29 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Judicial Registrar Loughnan

HEARING DATE: 29 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Sansom

SOLICITOR FOR THE RESPONDENT: Champion Legal

Orders

IT IS ORDERED

1. That within fourteen (14) days from today’s date or such further time as the parties agree upon, the husband cause a payment to Toyota Finance sufficient to release for the use of the wife unencumbered, the Lexus motor vehicle previously driven by her.

2. The proceedings are adjourned to 10:00 am on 13 August 2010 before Judicial Registrar Loughnan.

3. That orders be made in terms of the document titled Short Minutes of Orders marked Exhibit A as set out hereunder:

   “By consent and without admissions and until 5:00 pm on 13 August 2010:-

   1.The husband pay to the wife by way of interim spouse maintenance the sum of $1,219.00 (per week) into an account nominated by her, 1^st payment in 7 days.

   2.The husband continue to pay to the wife or on behalf of the parties:-

   (i)Assessed child support of $1,061.00 per week.

   (ii)School fees as particularised at paragraph 136 of $1,061.00 per month; and

   (iii)Mortgage payments of $6,500.00 per month, approximately.

4. That any further documents on which either party seeks to rely be filed and served not later than 16 August 2010.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2598 of 2010

MS CANTING

Applicant

And

MR CANTING

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for interim financial relief.  There is a raft of issues and a great deal of material and it was agreed by counsel earlier today that the matter could not be contained within the sort of time available in the duty list.

2. With the parties’ indulgence and the forbearance of court staff, the matter has gone on at some length this afternoon.

3. The issue is a very narrow one.  What is an appropriate level of support to the wife’s household until the matter can come before the court on 13 August?

4. Although I cannot be party to settlement discussions, the matter has been dealt with, in effect, on the basis that the husband agrees to make certain payments is up until the adjourned date without admissions as to them being warranted or appropriate.  They would include $1219 a week to the wife, payment of mortgage instalments, child support and some other outgoings. Further he would pay the wife, for use as she thinks fit, $30,000 that he is to receive from a tax refund.

5. The wife’s case is that she has been driving a Lexus motor vehicle - which I am told is a vehicle that has some carrying capacity. The lease has come to an end.  I am assured on behalf of the wife that the motor vehicle can still be paid out.  The husband says the pay out figure was $58,567 and that it was due to be paid out on 15 March. I do not know what the consequences are for the delay between then and now.

6. There is no capacity to deal with the detail of the case.  It is the husband’s case that he is fully committed, indeed over-committed; that he has tax liabilities due and about to fall due which will totally account for his income. He works in an accountancy firm and says that there would be potential embarrassment to him if he does not meet his taxation liabilities. It is the husband’s case, and I accept this, that he is making proper effort and he has provided proper support to the wife’s household, for a substantial period.

7. I am told that on his side it is argued that the net assets of the parties might be only of the order of $200,000.  Just stopping there, if they continue to litigate the way they are litigating then they will not have to worry about that $200,000.  That will be chewed up in fairly short order. The parties need to knuckle down and try and sort out a final solution to the case.  I understand they have made an effort at that.  The irony of financial proceedings is that the subject matter of the proceedings is consumed by the process. There will come a point where there is nothing to divide and the parties will owe their lawyers money.

8. At the moment – accepting the husband’s case – there is a limited asset pool. It is not practicable for the court to require further borrowings. I indicated to counsel for the wife that I would not require the husband to enter into a new lease, for example, in relation to a motor vehicle.  I cannot make the collateral undertakings on behalf of the husband that are required when somebody enters into an arrangement like that.

9. On the other hand, I am not sure that the parties have explored every avenue to fund their immediate needs. Obviously, I am not privy to the discussions the parties have had. For example, I do not know whether the parties have approached the secured creditors in respect of interest only payments or some such accommodation. There can be a tendency for parties at critical stages of a dispute to not exhaust all reasonable avenues to make something work.

10. The principles have it that if the wife has a need for support – and that is an agreed fact in this case – then she is entitled to seek a reasonable level of support from the husband. There is an imbalance of some proportions in terms of the parties’ financial circumstances.  There is no evidence that the wife has the sort of flexibility that the husband might have to move money from one place to another or to make arrangements.

11. I am told that an approach made on behalf of the husband in relation to raising further money on security has been rebuffed. In those circumstances I do not understand why the husband could not borrow from another source, just for this short period until 13 August, to settle these issues.

12. It seems to me that there is an efficiency in buying the existing vehicle.  Apart from a motorbike, there is no suggestion that the husband use a vehicle with as low a value as that which he proposes the wife would now use.

13. And that is another option.  I could make an order that the husband sell the motorbikes. I know that the husband will receive $30,000. He has a very substantial income. In those circumstances I will require him to pay out the Lexus lease. Unfortunately, there is no evidence about the precise payout figure. The husband could have given even of that figure and chose not to. His Financial Statement was executed today. In the event that the husband finds it not practicable to make those arrangements then I will look again at the options that I have canvassed: selling something else to provide the funds; or for the short term, having the wife use the vehicle that the husband drives, leaving the husband with the option that he offers the wife in relation to a less valuable vehicle. I do not think any harm could be done by such an order, that could not be undone in a final hearing.

14. These are very much interim interim proceedings and the court is permitted a broad brush approach.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  13 August 2010