Carucci and Ponti

[2016] FamCA 114

FAMILY COURT OF AUSTRALIA

CARUCCI & PONTI [2016] FamCA 114

FAMILY LAW – CHILD SUPPORT – SPOUSAL MAINTENANCE

APPLICANT MOTHER: Ms Carucci

RESPONDENT FATHER: Mr Ponti

FILE NUMBER: SYC 8180 of 2015

DATE DELIVERED: 2 March 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 29 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

Orders

IT IS NOTED

1. The undertaking of the father that he will pay the following expenses:

   (a)       The mother’s rent of $2,100 per week;

   (b)       The mother’s college tuition as it falls due;

   (c)       The children’s school fees at B School;

   (d)       The children’s school books and stationary;

   (e)       The children’s school uniforms, school shoes and sports shoes;

   (f)       The children’s sports equipment;

   (g)       The children’s private health insurance and premiums;

   (h)       The children’s gap, medical, dental, hospital, optical and orthopaedic fees;

   (i)        The children’s agreed extra-curricular activities;

   (j)        The costs of the nanny up to $440 per week.

IT IS ORDERED

1. That, pending further order, by way of spousal maintenance, the father pay to the mother the sum of $1,000 per week, the first payment to be made on 7 March 2016 and weekly thereafter and;

2. That, pending further order, the father pay the private health insurance premiums for the mother’s medical insurance.

3. That pursuant to section 139 of the Child Support (Assessment)Act 1989 the father pay child support in the sum of $350 per week per child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carucci & Ponti 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 8180  of 2015

Ms Carucci

Applicant Mother

And

Mr Ponti

Respondent Father

REASONS FOR JUDGMENT

1. Before the Court are interim applications by Ms Carucci (“the mother”) seeking orders in relation to interim spousal maintenance, child support departure and the return of certain personal items against Mr Ponti (“the father”).

2. The mother and the father are the parents of two children C born … 2008 and D born … 2010.

3. The parties were able to reach agreement in relation to the interim arrangements for the children who will live primarily with the mother and spend time with their father.

4. The parties are Italain citizens having come to Australia for the purpose of the father’s employment. There is a dispute between them about whether Australia is an appropriate forum for these proceedings in circumstances where proceedings have been instituted in Italy by the father, they have property in Italy and elsewhere but not in Australia, and where there is no agreement about whether, and for how long, the mother and the children will remain in Australia. The father has resigned from his employment with an Italian company and will be required to leave Australia at the end of September 2016.

5. At the time the matter was before me, the mother conveyed to the Court that she wished to stay in Australia with the children until the end of 2016, but ultimately it appears to be common ground that the parties and the children will live in Italy.

6. The father conceded that the Court has jurisdiction to hear and determine the issues of interim parenting and interim financial support for the mother and the children although he does not concede that Australia is the appropriate forum for the resolution of the substantive issues between the parties.

7. It is necessary to look at each of the matters before the Court separately.

8. In relation to jewellery the mother seeks the return of specified items of jewellery. The correspondence annexed to the mother’s affidavit indicates that the father disputes the mother’s entitlement to one item. In relation to the engagement ring, he asserts that the ring was returned to him and he disposed of it in July 2015. In relation to the other items the father says that he does not have the items in his possession but that they are in the possession of his parents in Italy.

9. In the circumstances of a limited hearing, without cross-examination, it is not possible to determine whether the mother is entitled to the items which she claims and whether the items are in the possession of the father. This matter can await the final resolution of the proceedings.

CHILD SUPPORT DEPARTURE

1. The application upon which the mother relies seeks an order pursuant to section 117 of the Child Support (Assessment) Act 1988. It is common ground between the parties that no assessment has issued and therefore the Court has no power to make an order under section 117. The only power which is available to the Court is a power pursuant to section 139 of the Child Support (Assessment)Act 1989 which provides:

   Urgent maintenance orders

   139(1)  Where, at any time after an application has been made to the Registrar for administrative assessment of child support for a child (whether or not the Registrar has accepted or refused to accept the application), a court having jurisdiction under this Act is of the opinion that the child is in urgent need of financial assistance, the court may order the payment of such periodic or other amount as the court considers appropriate.

2. Although no application is formally before the Court pursuant to section 139, no issue was taken by senior counsel for the father and the matter proceeded on the basis that the Court would determine what urgent order for the support of the children should be made.

3. The father has agreed by way of child support to pay the following:

   a.The rent on the premises which the mother and the children occupy of $2,100 per week (noting that only a proportion of that rent relates to the children) ;

   b.$500 per week child support;

   c.The children’s school fees at B School;

   d.The children’s school books and stationary;

   e.The children’s school uniforms, school shoes and sports shoes;

   f.The children’s sports equipment;

   g.The children’s private health insurance and premiums;

   h.The children’s gap medical, dental, hospital, optical and orthopaedic fees;

   i.The children’s agreed extra-curricular activities.

4. The father also agreed that he would pay the costs of a nanny to a maximum of $440 per week which is the amount which the mother deposed in her affidavit was the cost.

5. In email correspondence passing between the parties on 3 December 2015, the father agreed

   I will cover 100 % of all school and extra-curricular expenses, medical expenses and extraordinary expenses, which we agreed on beforehand.

   Initially I will provide maintenance for the children in order of $3,000 per month. In the event that, at a later date, we agree differently, we can modify this amount with a differing agreement between the parties.

6. It would appear from the mother’s response which was also tendered, that she agreed to the father’s proposal. It is not suggested that the mother’s agreement to the father’s proposal in terms of the dollar amount he would pay for the children is in any way binding but it does suggest that, at least at the time, she thought that was a reasonable arrangement for the welfare of the children.

7. In addition to the amounts which the father has agreed to pay towards the children’s expenses the mother claims a further amount of $2,392 per week. The father challenges the reasonableness of those expenses and submits that in any event, claimed expenses such as $1,200 per week for holidays could not be said to be urgent within the terms of section 139 of the Child Support (Assessment)Act 1989.

8. By virtue of the agreement of the father, the children’s rent, school fees, medical expenses and extra-curricular activities will be provided by him leaving food, utilities and day to day expenses to be provided from child support. The parties previously agreed that $3,000 per month or $692 per week would be a reasonable provision for the support of the children. Such items as house repairs, repairs to furnishings and appliances and the like cannot be characterised as urgent. By far the greatest claimed expense for the children was holidays of $1,200 per week. Neither can that claim be characterised as urgent. In my view the provision of financial assistance for these children in approximately the sum which the parties agreed was reasonable would be appropriate and the orders will provide that the father pay child support, in addition to those items which he has agreed to pay, in the sum of $350 per week for each child.

SPOUSAL MAINTENANCE

1. The application for interim spousal maintenance sought payments in three different categories. Firstly the mother sought payment of maintenance in the sum of $3,600 per week. Secondly the mother sought the payment of $20,000 towards the costs of furniture for her rented premises and thirdly she sought the payment of $8,500 towards her legal costs and college expenses to obtain a student visa.

2. In relation to the student visa the father has already paid those fees and those orders will not be made.

3. The mother has filed two Financial Statements. The first Financial Statement was sworn on 11 December 2015, and the second on 26 February 2016. Although the mother did not rely on the earlier Financial Statement the Court’s attention was drawn to that document by senior counsel for the father.

4. In relation to such of the application as sought the payment of $20,000 towards the costs of furniture, the mother has deposed that she has bought furniture using her own funds, and spent $11,437. The mother therefore does not establish that she has a need for a further $20,000.

5. In her Financial Statement sworn 11 December 2015, the mother deposed to money in banks totalling $168,034. She had adequate funds from which to buy furniture as she did. Of those funds, $14,621 remain, the balance having been spent.

6. For the purpose of this application it was conceded on behalf of the father, that the mother met the threshold in section 72 of the Family Law Act 1975 (Cth) (“the Act”).

7. The mother has an income from rent of $982 per week in relation to two unencumbered properties. She pays outgoings of $626 per week for those two properties, and another, also unencumbered, property which she owns in Italy which she estimates to be worth $760,000 but which is not tenanted. No issue was taken by senior counsel for the father about the possibility that the Italian property might be capable of being rented and earning income. She spends $26 per week on motor vehicle registration, service and insurance, leaving her with a net income of $330 per week.

8. Again the father challenged the reasonableness of the mother’s stated expenses which she estimated, excluding those expenses which have already been taken into account, to be $2,241 per week. Particularly the father challenged the claimed expenses for food ($345), clothing and shoes ($460), holidays ($700), gym membership ($125), and cosmetic procedures ($144).

9. On 25 January 2016, the solicitors for the father served upon the solicitors for the mother a Notice to Produce, which sought, inter alia, copies of bank statements, copies of all credit cards statements and “copies of all tax invoices and receipts in relation to your alleged expenses as set out in paragraph 60 of your financial statement.” No documents were produced by the mother in response to the Notice to Produce. In circumstances where the mother is on notice that her reasonable expenses are challenged, the onus is upon her to provide evidence of those expenses. If she chooses not to produce any documents to substantiate the reasonableness of those expenses, then the mother cannot be said to have satisfied the onus proof in relation to that issue.

10. Some concession was made in that regard by counsel for the mother who in submissions in reply submitted that the mother demonstrated a need for approximately $1,500 per week in spousal maintenance.

11. It is not possible in the circumstances, and having regard to the state of the evidence, to determine what the mother’s reasonable needs are. She has income from which to support herself of $330 per week in circumstances where her rent is paid. Since the father is already paying the children’s medical insurance there would be no extra cost to him if he were ordered to pay the mother’s medical insurance. Doing the best I can with the state of the evidence, I propose to make an order that the father pay a further sum of $1,000 per week by way of spousal maintenance and pay the mother’s medical insurance.

THE TERM OF THE ORDER

1. On behalf of the mother it was argued that the order should be made pending further order. On behalf of the father it was argued that the orders should be made until 1 July 2016, that being the date upon which the father’s resignation from his employment. It was also argued on behalf of the father that the orders should be limited in time to any period when the mother was resident in Australia. The order will be made pending further order and limited to such time as the mother is resident in Australia. To limit the order in any other way would be to invite an application to vary the order on 1 July 2016.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 March 2016.

Associate:

Date:  2 March 2016