CHA & PANG
[2010] FamCA 853
•24 September 2010
FAMILY COURT OF AUSTRALIA
| CHA & PANG | [2010] FamCA 853 |
| FAMILY LAW – PROPERTY – Exclusive occupation of home – interim property settlement – business income |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Cha |
| RESPONDENT: | Ms Pang |
| INDEPENDENT CHILDREN’S LAWYER: | John Longworth |
| FILE NUMBER: | SYC | 1004 | of | 2010 |
| DATE DELIVERED: | 24 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Ainslie-Wallace |
| HEARING DATE: | 13 September 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wong |
| SOLICITOR FOR THE APPLICANT: | Dahan Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Friedlander |
| SOLICITOR FOR THE RESPONDENT: | Logos Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Longworth |
Orders
Pending further order
That within 14 days of this order and thereafter each 14 days, the wife provide the husband with the following information in writing;
(a) The daily takings for the business trading as N Business;
(b)The weekly wages paid, the hours worked and to whom the wages were paid;
(c) A list of business expenses paid in the week;
(d)The weekly net proceeds of the business after deduction of the items referred to in 1 (a) and (b) of these orders;
(e)Bank and/or other records demonstrating the payment of business expenses, wages and deposits of the net proceeds of the business.
That the wife provide the husband with copies of all books and records kept by her in the running of the business from February 2009 to date including but not limited to all business returns and BAS lodged in relation to the business.
Leave to either party to restore the matter to the list in relation to the implementation of or for additional orders arising from the implementation of order 1.
That within 2 months of this order, the husband vacate the property at C and from that time the wife to have sole occupation of that property.
That the wife continue to pay the mortgage loan repayments and all other payments presently made by her in relation to the home.
IT IS NOTED that publication of this judgment under the pseudonym Cha and Pang is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1004 of 2010
| MR CHA |
Applicant
And
| MS PANG |
Respondent
REASONS FOR JUDGMENT
Background
Mr Cha (the husband) and Ms Pang (the wife) were married in January 1997 and separated on 1st March 2009. There is one child of the marriage, D (born December 2000). The child has lived with the wife since the separation.
The husband’s application seeks orders as to both property and parenting issues. The parenting aspect was resolved to the extent that the parties agreed to put in train a process for the husband to spend time with the child. The parties will participate in the preparation of a Family Report for the assistance of the Court at a final hearing.
The wife seeks interim property orders that the husband vacate the parties’ former home and there after be restrained from coming onto that property.
The matters before the Court were limited to property issues.
Occupancy of the parties’ home
Before separation the parties were living together in a property owned by them in C. Living with them was the child of the marriage, the wife’s child by a former relationship, S born in 1990 and the husband’s child by a former relationship, J born in 1991.
The wife alleges domestic violence in the relationship and surrounding the separation of the parties. The husband denies the allegations. The wife obtained an Interim Apprehended Violence Order and when the matter came on for hearing in May 2009, the husband consented, without admissions, to an order being made to have effect for six months to 27th November 2009. The order was not extended and lapsed.
In an interim hearing where the evidence is circumscribed it is not possible to resolve the disputed allegation of family violence.
In February 2009 the wife and the child of the marriage moved out of the C home and moved in with her parents who live in a large property some distance away.
After separation, the wife’s son moved to live in Korea. In about August 2010 he returned to Australia and is living with his mother.
The wife contends that the living arrangements at her parents’ house are not satisfactory and said that although the house has several spare bedrooms, she does not use them. At the time of the hearing the wife and D had moved into a flat owned by a friend who was overseas. The wife is paying $300 per week rent for that flat but expects that when her friend returns, she will have to find other accommodation.
It seems undisputed that the maternal grandparents’ house is a 30 minute drive from the child’s school which is near the former marital home. Presently the wife takes the child with her to work and he waits with her until school time and after school comes to her and they travel home together. She says that the child wishes to return to his own home and be close to school and his school friends.
The wife has been paying the mortgage on the marital home since separation. The husband has been living there with his daughter J who is in second year university.
Business
In January 2007 the parties commenced a restaurant called “N Business” in C. The husband had previous experience working in restaurants. At the time the business commenced the husband was working in another restaurant and on advice, it was agreed that the business of N Business should be registered in the wife’s name. To that end, the lease on the premises was entered into in the wife’s name.
In April 2007 the husband left the restaurant where he had been working and attended and operated N Business together with the wife. The husband alleges that because of an incident within the shopping centre where the restaurant is located, the wife was not permitted to enter the precincts for about 18 months. As a result the husband operated the restaurant by himself with the assistance of two full time employees. The wife was permitted to re-enter the shopping centre in September 2008.
The husband alleges that after the wife returned to the business there were frequent arguments between them because, he says, the wife wished to conduct the business alone.
In February 2009, the husband left the wife to run the business.
The husband contends that from the time the business started up until he left the wife to run it in February 2009, it was profitable and most weeks produced income of $3,000 to $4,000 after expenses. The husband alleges that most of the income from the business was in cash and that by February 2009 he and the wife had accumulated $50,000 in cash. The husband claims that the wife has had the benefit of that money since separation.
The wife’s case is that the business is not doing well and at most produces a net income of $300 per week but sometimes it produces no income at all.
No book or record of the business demonstrating its trading was in evidence. Counsel for the wife referred to a valuation prepared in September 2010 as supporting the wife’s contention that the business is not doing as well as it did when the husband was running it.
The valuation of the business seems to have been conducted on the basis of returns filed during 2007 and 2008 and the wife’s account of the daily cash takings of the business. It does not seem that the wife provided to the valuer any book or trading journal that reflected the money taken on any particular day but gave a verbal account of the takings for one week in September. From this, the valuer extrapolated to find gross takings for the year. This extrapolated figure was less than that shown in the sales recorded for December 2007 to June 2008. The valuer noted discrepancies in the quoted sales figures as extrapolated in the report against the BAS return for the business. The valuer noted that the wife was unable to reconcile the disparity.
The valuation revealed that from the gross takings from the business the wife pays wages to her part time staff, including the “occasional $200” to her son. It indicated that she drew a wage for herself each week of between $200 and $300 dollars. On the limited information available to the court in this hearing, it seems that any net income produced by the business in any week and retained by the wife is in addition to the wage she draws.
The husband said that despite requests from his solicitor, the wife has not provided any document or record reflecting the trading of the business.
The husband contends that the business should be experiencing higher trading than that claimed by the wife and his application seeks an order to permit him to take over the control of the business and to pay the wife a guaranteed sum each week from the income produced.
The wife is paying rent for herself, the mortgage and expenses on the marital home and it appears running a motor vehicle.
The husband is presently working and earning between $800 and $900 per week.
Each party seeks a final order that he or she is solely entitled to the business. Obviously the state of the business turnover will directly affect the value ascribed to the business.
Discussion
The wife’s financial document of April 2010 shows a weekly income of $300 which is augmented by receipt of Family Allowance and the Sole Parent Pension. It does not appear to reflect the receipt of the net takings from the business from time to time. It shows expenses of $697, the major part of which appears to be a repayment of that mortgage loan of $560 per week. In neither this document nor in her affidavits does she indicate the source of funds with which she meets this shortfall.
There is no up to date financial information from the husband other than his statement that he receives between $800-900 per week from his present employment.
As I have said, the husband wishes to be given the opportunity to run the business and, as part of the suite of orders he seeks in this regard, the orders contemplate that he will pay a sum certain to the wife each week from the business takings. He seeks this order on the assumption that the business will produce income in the order of that produced when he ran the business in 2008 or at least greater than the wife contends.
The husband bases his claims about the business income on his past experience but I note that he last was involved in running the business in the second part of 2008. According to the valuer’s report there have been other food outlets and another Asian restaurant open within the shopping centre in which the restaurant is located since he last worked in the business. It is not possible to know on the evidence before me what the effect of those changes have had on the restaurant turn over. The valuer also noted that the wife said that other Asian restaurants had opened in the local area which she believed were competing with the business for customers. I could not therefore find on the evidence before me that the husband’s expectations of the income were informed by the present circumstances of the trading.
In all of the circumstances of this case I am of the view that it is not appropriate to alter the management of the business on an interim basis.
However, the wife has not provided the husband with any books of account or records or apparently the BAS filed on behalf of the business (referred to in the valuation report). I will order that the wife provide the husband with copies of all books and records kept by her in relation to the business and that each fortnight the wife provide the husband with an accounting of the takings of the business, a list of expenses including wages and an indication to whom the wages were paid and the hours worked together with relevant supporting documents. I will give liberty to restore the matter should further orders be required in relation to the accounting or the income of the business.
occupancy of the marital home
It was submitted by both the wife and the Independent Children's Lawyer that the interests of the child of the parties would warrant an order providing for the wife’s return to the home.
The starting point for a consideration of whether to make an order in the terms sought by the wife is that the court may make such order as is proper. However the Court is obliged to exercise that discretion mindful of the circumstances relevant to the particular case and understanding that, as was said in O’Dea & O’Dea (1980) FLC 90-896, it is a very serious matter to turn a party out of his or her home.
Interests of the child
It seems undisputed that before separation the child was attending the local school and no doubt had school friends in the area. The wife’s evidence of the present arrangements indicates that the child spends a good deal of time before and after school at the restaurant because of their present living arrangements and her need to drive the child to and from school.
After the wife moved out of the marital home she said that the child did not wish to return, it apparently harbours bad memories for him. Apparently of recent times he has expressed a wish to return to a familiar home.
While it would be convenient and familiar for the child to be in a home with which he is familiar and which is close to his school, it is not the only consideration. I must take into account the needs and means of the parties and any potential hardship to a party.
Financial needs and means of each party
Albeit constrained by the paucity of financial information from both parties, it seems that the husband’s income is sufficient to meet the mortgage payments on the marital home. The wife suggested that the husband had a relative with whom he could stay if he were not to remain in the home. There was no evidence from the husband that this was available and I could not proceed on the basis that it was. It appears reasonable on his asserted income to conclude that the husband has the capacity to pay for rented accommodation for himself
The wife says that she cannot afford to pay rent (one imagines in addition to the mortgage payments and other payments she is making towards the marital home). Her case is that she requires a three bedroom home to accommodate herself, the child and her son S. She has estimated the weekly rental for that type of property at $560 per week.
Potential hardship to a party
While the wife is presently occupying a friend’s flat she says that this occupancy will end when the friend returns and she will have to either find rental accommodation or return to her parent’s house. The wife gave no indication when the friend might want her to vacate the flat. It seems that while the parents’ house is large enough to accommodate the wife and the child, for a variety of reasons her parents would prefer if she found alternate accommodation. The wife said that tensions have arisen between her and her parents over her continued presence in their house. Certainly her father’s affidavit made it clear that he did not wish her to live with them.
If the wife were to continue paying the mortgage on the home and have to find money for rent (even for a more modest accommodation than the three bedroom townhouse to which she has referred) it appears that it would work a financial hardship on her.
I also take into account the child’s circumstances in that a move back to his former home would reduce the time he spends travelling each day to school and would present more familiar surroundings.
The husband’s income seems to be sufficient to enable him to accommodate himself elsewhere.
In all of the circumstances I am satisfied that the balance of convenience favours the wife having occupancy of the home and I will order that the husband vacate and give her and the child exclusive occupancy. It was not suggested that the wife will not continue to meet the outgoings on the marital home if she occupies it and I have taken that into account in coming to the determination of the issue.
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I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie Wallace delivered on 24 September 2010.
Associate:
Date: 24 September 2010
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Discovery
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Injunction
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Costs
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Remedies
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