Chang and Read

[2009] FamCA 1348

FAMILY COURT OF AUSTRALIA

CHANG & READ [2009] FamCA 1348

FAMILY LAW – INTERIM FINANCIAL – costs – costs of single expert
FAMILY LAW – CHILDREN – with whom a child communicates
FAMILY LAW – INJUNCTION – non-denigration

Family Law Act1975 (Cth)

APPLICANT: Mr Chang

RESPONDENT: Ms Read

FILE NUMBER: SYC 1553 of 2009

DATE DELIVERED: 1 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 1 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

Orders

1. That by consent orders be made in terms of the document titled “Minute of Consent Order” marked Exhibit 1.

2. That orders be made in terms of the document titled “Minute of Order” marked Exhibit 2.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:       SYC 1553 of 2009

MR CHANG

Applicant

And

MS READ

Respondent

REASONS FOR JUDGMENT

1. These are interim proceedings in relation to a number of parenting and financial issues. The parties, the wife and husband, are 49 and 50 years of age respectively. They started to live together in 1986, were married in 1989, and separated in May of last year.  They have two children, H and E, who are 17 next January and 13 years of age, respectively. 

2. The parties have resolved an issue about interim costs and I am asked to make orders in terms of a minute and that provides for a payment of $200,000 by the wife to the husband.  She is also going to pay, in the first instance, some of the disbursements associated with the proceedings for single experts, although half of those payments will be a deduction against the $200,000 advance.  She is also going to pay, by way of preservation of property, outgoings in relation to a property at G, being mortgage instalments to the National Australia Bank, council rates, water rates and usage charges, and building insurance.  The wife wants it recorded that her expectation is that the husband will apply the balance of the $200,000 to his legal fees, and she expects that that amount will be treated as part of his entitlement to property settlement.

3. That leaves for me to determine an issue about an order for the child E to spend time with her father for the last week of the upcoming school holidays.  I don't know when the last week of the holidays is, but the issue relates to the last week of the upcoming Christmas school holidays, it being the case that both girls attend a boarding school overseas. The husband also seeks an order that he spend time with her for the first two weeks of the winter term, the term immediately following that holiday.  There is a dispute about the wife paying costs associated with her husband travelling overseas for the purposes of that order. 

4. Orders were sought at paragraph 5 of the father's application seeks that the parties encourage and support and facilitate communication between the children and the parents: the wife maintaining internet connections and email accounts; a permissible contact on a landline number in the wife's household;  the wife maintaining mobile telephone accounts.  No submissions were made about those things, so perhaps they are not controversial.

5. Orders are sought about the parties having equal shared parental responsibility for making long‑term major issues. It is neither practicable nor necessary that I make an order about that. 

6. The father seeks an order that the wife be restrained from enrolling the children in holiday programs without the father's written consent except for October, I understand that to be an order to facilitate an agreement that the parties are no longer abiding by. There is an agreement about notification about medical matters, hospitalisation, and non‑denigration. I wasn't told about an agreement about changes of address, but I don't imagine that will be controversial. 

7. Then there is a dispute between the parties in relation to the extent to which the wife should be restrained, if at all, from supporting, encouraging or permitting a change of name for the children from Chang to Read. That is a change from the family name to the mother's maiden name, a name to which she has returned.  And finally, there is an application for interim spousal maintenance for the husband at $5890 a week.

8. The parenting issue is complicated, by the distance, by the ages of the children, by the fact that the parties don't entirely agree about the expression of the children's wishes; by the fact that the parties have yet to see a Family Consultant; and there is yet to be an effective appointment of an Independent Child Lawyer.

9. The father says, "There was an agreement we reached at a mediation process which would have me spending time with the children [overseas]."  The father accepts that either because of her age or because of the most recent expression of her wishes, or both, he is not in a position to press strongly for orders to be made in relation to H. However, in relation to E, he seeks an order, as I said, that he have some time with the child over this Christmas season and that the wife pay the fares and accommodation to enable him to exercise that time.

10. The mother's case is that E does not want to do that.  She says the child needs a break, there are some problems in her relationship with her father. Those problems arose out of a visit to Australia in July. She says that the father did some things that frustrated the child and caused problems with their relationship. The mother says that it would be unnecessary and likely to fail, if the father was shipped over and held himself available in circumstances where there is no likelihood or guarantee that the child will be available or interested in spending time with him.

11. I am to make orders in the best interests of a child. In relation to this issue, I will need the help of the parties' counsel with an appropriate wording. What I propose to do, is to order that the wife facilitate the travel and pay the expenses that are outlined in paragraph 4 of the father's application, but there first there must be an expression of E’s wishes to spend time with the father in this upcoming holiday.

12. Depending on when the holidays are, and I think the father's counsel is able to tell me that, I'll appoint an Independent Child Lawyer and that lawyer will quickly find out whether that is a yes or a no. 

13. I will restrain the wife in relation to the question of the children's name.  The evidence is that H is already working away at being known by the name her mother now uses. However, like many of the issues that arise in the Duty List, like relocation and so on ‑ all the Court can do is prevent further action on a change until the issue can be properly addressed. It is not appropriate that there be a change of name under the auspices of an interim order.  It is a bit like an interim circumcision, it is hard to reverse and embarrassing. In this case the relevant parties include the children and others over whom I have no power. I need to be careful about that.  I cannot and would not, for example restrain H, for example, from calling herself any particular thing. But that is not to say it is not a matter of some significance that the people responsible for decisions like this, the parents, don't agree about this issue. The name by which a child is known is an important issue and a legitimate matter for disagreement. Minds differ about it. The father knows these children a lot better than I do, and it may be that it would be disadvantageous to them to change their names now or at all. 

14. I don't think there can be a significant risk to the wife by restraining her in this way. Her obligation is to do all reasonable things to comply with an order. Thus she will be precluded from encouraging or supporting the children to do anything to further change their names. The focus of these proceedings is more often on the records that are kept by authorities of various types, whether it's school or government authorities, in relation to names, and that can be a different issue to names commonly used.  So I don't think there is a risk of substantial harm coming to the wife as a result of these orders.

15. Now, there is a controversy ‑ it is apparent on the documents, not mentioned in submissions ‑ in relation to access to a landline for telephone communication.  The mother says that calls on a landline, and some email communication, were, in her view, an instrument of harassment of her by the father. She also refers to, some complaint from the children in relation to telephone and email communication.  I think if I make order 5, which is sort of a back‑handed declaration, but has a little by way of an order in personam in it, the parties have some flexibility about the sort of telephone service that is used, but are still required to facilitate the children's wish to communication. How you would stop a 16-year-old or a 13-year-old communicating is beyond me, but perhaps that is an issue for a different day. I will make order 5, and I won't make that part of order 11 that requires the use of a landline.

16. That brings us to the issue of spousal maintenance.  Maintenance is a remedy available between parties to a marriage.  The impact of sections 72, 74 and 75 is that an order for the provision of maintenance for a party to a marriage must be proper.  In effect, there is a threshold issue, and that is one party must be unable to support themselves adequately for a proper reason.  Some examples are given of what might be a proper reason. If that threshold is crossed, then the other party can be called upon to provide support to a reasonable extent. 

17. The question of adequacy, the authorities have it, imports the concept of a standard of living which is reasonable in the circumstances.  Authorities have it that that does not mean a subsistence level, that it does not necessarily mean an entitlement to a standard of living that was enjoyed at some particular point during the party's cohabitation and, indeed, it may be that “adequately” imports the idea that a higher standard is required, than was previously enjoyed is appropriate.

18. The second issue of the reasonableness of support from the other party requires a consideration of the financial circumstances of that other party.

19. The background to this case is: when the parties met, the husband worked as a waiter.  The affidavit says that was somewhere called KX, but even assuming that means K, I think the parties might have been somewhere on the South Coast or in the Illawarra area.  Significant contributions were made by each of the parents, each of them had paid employment albeit not is high profile positions. At a point the wife came into her entitlements under a trust, and tens of millions of dollars have come to her through the trust.

20. She declares an income of $60,000 a week.  It is said that that might exclude something like $5 million by way of a recent distribution. She says in her Financial Statement that she receives an income of about $60,000 a week and she spends about $11,000 a week, but that doesn't include her living expenses. She does not know what they are.  She has substantial assets in Australia and in Europe, where she lives. She does not the value is of her interest under the trust.  Rather unhelpfully, for the point of view of maintenance proceedings, she does not identify her living expenses. She says she doesn't know what they are.  That itself is reasonably revealing, but she was obliged to tell the husband and the court. 

21. In maintenance proceedings, the parties are obliged to complete that part of a Financial Statement that includes their living expenses, Part N, and it is not done. However, it was, quite fairly said in the wife's case that there is no issue in relation to her capacity to provide support. The argument is all to do with the threshold issue from the husband's point of view and then, beyond that, the quantum of his need.  As to capacity there are liquid assets in Australia. The wife says, for example, that she has a quarter of a million dollars in a European bank account; $888,000 in a Australian account with the National Australia Bank; half a million dollars in Commonwealth Bank shares and so on. There is no question of any limitation in her absolute capacity to provide support nor any restrictions due the form in which her assets are held. The wife can meet any proper order.

22. The issue comes down to whether the husband has a need, and if so, in what amount or rate. That is a little complicated.  He has filed a Financial Statement which, on its face, shows he has an income of $471 a week from his work as a casual Waiter. He spends $4375 a week. That includes fixed expenses and living expenses of $1777 a week. I am told that there is an earlier Financial Statement ‑ which I have not seen, ‑ which shows a more modest set of expenses.

23. In paragraph 97 of his affidavit, the husband refers to My Living Expenses Currently as Follows, and there is a table set out there which includes columns Description of Expenses, Current Expenditure in Dollars, Past Expenditure in Dollars. I don't think he explains the table, although he goes into some considerable detail about the standard of living the parties enjoyed from the mid 1990's onwards in terms of the purchase of the G property at 1.4 million, spending three and a half million on renovations and improvements, further renovations, $150,000 on furniture, and then extensive overseas travel, business class airfares, five-star accommodation, and so on.

24. He says, "Since separation, I have had to significantly reduce my spending," and he points out that he isn't able to match the sort of facility available to the wife in terms of providing opportunities for the children. The wife provides that detail:  the children are in boarding school in Europe but have enjoyed placements at an American University, from that school; the wife sets out extra curricular activities that she services at a very high weekly cost. The husband says he could not afford to take them on holidays; he cannot afford to buy them the things they want. He talks about the children competing in a milieu at their school with children of very high value families who have every facility available to them. The fees, he thinks, are $A80,000 to $A100,000 a year per child. Tuition is another $70,000 and so on. 

25. And that is where the problem lies.  On the face of his Financial Statement, the husband has a shortfall of about $4000 a week. Half of that is taken up in the fixed expenses the wife is offering to meet directly. Thus he has a need of about $2000 a week.  But he says, in effect, “My needs by reference to what I used to spend – are $8543 a week.” That figure also includes some of the direct payments made by the wife. It includes $2000 for the mortgage, $95 for rates, and some other small expenses. Thus the husband has an income, on these figures, of $471 a week, and outgoings, excluding the fixed payments the wife is going to make directly of about $6500.

26. In the submissions on behalf of the husband, it is said, "Well, no particular criticism was made of any of the items," and the items include what is an objectively generous allowance for entertainment and hobbies, $1600 a week; holidays, $1829 a week.  For the wife, it is said, "Well, we do complain about those things.  We've pointed out the difference between the previous Financial Statement and the current one. There are specific things such as cleaning expenses, gardening expenses,” which the husband says in his affidavit that he has addressed personally and, therefore, are not expenses that he has to meet.  These are not insignificant claims - gardening/lawn mowing at $150 a week, cleaning at $200 a week. 

27. In support of his case, the husband says he provides a copy of the family American Express summary for 2006/2007 showing charges at half a million dollars for the year.  He says that during the marriage he and the wife had access to other cards, NAB mastercards and ANZ visa cards for living expenses.

28. There is a broad discretion in relation to maintenance.  There is a necessary inexactitude about interim proceedings.  I am not allowed to make a finding of fact on a disputed issue of fact without independent evidence that excludes one version of the events or highly supports another. In relation to some issues here, with the matter being dealt with in a fairly ‑ I don't mean to be offensive about it ‑ a fairly desultory summary way, I just have a bare assertion.  It is possible to spend any amount of money. I made a maintenance order earlier this year for $10,000 a week.  There is no objective standard appropriate to the expenditure of moneys, even if it was possible to ascertain what has been done. 

29. On the husband's case, no significant damage can be done if I get the rate wrong. No significant inroad can be made to the pool of assets.  On the wife's case, this is what is described, in a pejorative sense, as a grab for cash by the husband. The wife was quite content with sharing the benefit of family income until separation and now has a different view. To some extent, the legislation seeks to protect parties from such a change of attitude. This is not a matter of gender.  The usual situation would be a reversed one, where often it is husbands who control assets after separation. The principles remain the same, whether it’s a wife or husband. The wife says her payments have been intended to preserve the G property but there is no doubt she has also supported the husband. To some extent that support may have come from funds to which he was entitled. Thus by provided for his legal fees she is facilitating access by the husband to his own funds to meet his legal expenses.   

30. One is always worried in cases where there is such a significant imbalance in terms of finances, that one party might be at a disadvantage in the litigation. Here both parties are well represented, so I don't suspect that is intended or would be allowed to continue in this case, but one needs to be careful about it.  All of the obligations fall on the party in the stronger position to facilitate things and to provide information and so on, and the costs invariably are greater for the party in the weaker financial position. That has been addressed, as I say - for the time being, anyway - by an order for access by the husband to his fund.

31. These are terribly unsatisfying and difficult decisions because the range of dispute is so great.  There is no way of getting to the bottom of anything and so one ends up taking a broad brush approach to them.   I have never found a more satisfactory way to deal with it, and we say that any errors can be swept up when adjustments are made for the balance of contribution after separation. Any direct mischief can be made via direct payment. True it is, that it is often not done. 

32. There is an issue about the husband earning more money.  The first thing to be said is that he has gone back to paid employment in the role he occupied in 1986.  That is not the first step of somebody seeking to milk support from a spouse in a stronger financial position. It is a bit tough to criticise him, it seems to me, in those circumstances for not working on a full‑time basis. I don't know that he tells us the detail of how he arranges his work, but, for example, there is criticism of him in relation to the time when E was here earlier in the year. E told her mother that he was at work when he might have been with her. 

33. He says that he does not work full-time so that he can be available to the children.  Sadly, he has no relationship with H at the moment, he doesn't see her, and his arrangements in relation to E, although they were crystallised in a mediated resolution, involve some problems. He could safely work more shifts; there is no doubt about that. However, even if he did so, he is not going to earn a massive increment on his current income.  With the best will in the world, waiters don't earn an income that could address anything like the sort of expenditure that this family is likely to have incurred in the past. 

1. The husband asserts a need to address a shortfall of $5890 a week, or thereabouts.  There is virtually none of the categories of payment that one couldn't say, “Well, you could spend $10 more or $10 less or $50 less” or, in some cases, $1000 less a week. As to the standard at which he should live, although it’s my decision, it is not an objective test, and the sort of things that the husband describes ‑ and are confirmed broadly by the wife's statements about her own income. She gives no evidence about her own expenditure. That suggest that he his claims may well be close to the mark. Doing the best I can, and it is very much an arbitrary figure, I will order $4000 a week.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Judicial Registrar Loughnan

Associate: 

Date:  10 March 2010