Coopers and Coopers and Anor

[2014] FamCA 391

FAMILY COURT OF AUSTRALIA

COOPERS & COOPERS AND ANOR [2014] FamCA 391

FAMILY LAW – SPOUSE MAINTENANCE – Interim Order – wife sought lump sum spouse maintenance and adult child maintenance for 18 year old son – previous order included a notation providing for the payment of the wife’s expenses – unable to make an order for the payment of arrears based on notation – circumstances of wife – capacity of husband to pay – orders made for periodic spouse maintenance – no orders for adult child maintenance.

Family Law Act 1975 (Cth)

APPLICANT: Ms Coopers

RESPONDENT: Mr C Coopers

INTERVENER: Mr J Coopers

FILE NUMBER: ADC 1027 of 2012

DATE DELIVERED: 3 June 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 3 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade

SOLICITOR FOR THE APPLICANT: Adey Lawyers

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Diane Myers Pty Ltd

COUNSEL FOR THE INTERVENER:  Mr Livesey, QC

SOLICITOR FOR THE INTERVENER: Norman Waterhouse Lawyers

Orders

BY CONSENT IT IS ORDERED THAT

1. The parties attend a Conciliation Conference to resolve all of the issues at a date and time to be advised by the Court.

IT IS FURTHER ORDERED THAT

1. Commencing on Monday 9 June 2014 and each week thereafter the husband pay the sum of FIVE HUNDRED DOLLARS [$500.00] per week spouse maintenance.

1. The husband pay to the wife within seven [7] days of the accounts being presented to the husband the following:

(a)all of the rent and utility expenses (being electricity, gas, excess water);

(b)all motor vehicle expenses (being registration, insurance, petrol and servicing);

(c)all bills in relation to expenses for food and household supplies as provided for by the wife (being BC Supermarket, CD Seafood, DE Butchers and EF Greengrocers);

(d)all medical expenses (including pharmaceutical, physiotherapy, gym expenses, health insurance and gap payments);

(e)all telephone expenses.

1. The husband pay to the wife within seven [7] days of the accounts being presented to the husband in relation to AB:

(a)all school fees

(b)all medical expenses, health insurance and gap payments;

(c)all telephone expenses

1. The issue of outstanding arrears and the question of costs of both parties are adjourned to the consideration of the Trial Judge for final determination.

1. The Application in a Case filed by the wife on 21 March 2014 is dismissed and removed from the active pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Coopers & Coopers & Anor 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 ADELAIDE

FILE NUMBER: ADC 1027 of 2012

Ms Coopers

Applicant

And

Mr C Coopers

Respondent

And

Mr J Coopers
Intervener

EX TEMPORE REASONS FOR JUDGMENT

1. In the Application in a Case filed by the wife on 21 March 2014, paragraph 2(a) refers to a payment by way of lump sum, all arrears of payments due pursuant to the notations to the orders of 24 May 2012. 

2. There is no response to any of the matters in the Application in a Case, save and except the husband has filed an affidavit (which is not a formal response).  The husband has not complied with the rules or the specific order of the Court of 9 May 2014 where the matter was adjourned for further consideration to today.

3. The question, however, remains the basis upon which the Court would make an order for the payment of arrears due to a notation rather than an order.  The question may in due course become one where the husband could be dealt with for failing to meet an undertaking given to the Court if that is how it is interpreted.  This may have some significant consequences, both by way of variation of the orders in existence, and by way of dealing with the person who has failed to keep an undertaking to the Court by way of contempt. 

4. Those matters cannot be dealt with on an interim basis at this hearing, but may need to be dealt with later.  The question would also arise as to whether the provision of a lump sum spousal maintenance is currently a matter that is necessary for the maintenance of the wife which appears to be disputed (bearing in mind the funds which are still available to the wife in accordance with her own affidavit). 

5. In relation to the question of ongoing payments for the spousal maintenance for the wife and the adult child maintenance for the son (who is 18) I have heard the various submissions and taken into account the material in the affidavit.  The question is whether the Court continues with the notations, or has matters put specifically in orders of the Court, taking into account the capacity of the parties in this matter to disagree about matters and their failure to reach a sensible compromise or agreement in relation to the matters. 

6. The Court regrets that it is necessary to make orders rather than leave the matters as undertakings or notations. 

7. There appears to be few disputed issues in the evidence before me to date.  The wife is in need of spouse maintenance due to her present circumstances, and in particularly health issues.  There is also little dispute as to the husband’s capacity to pay those expenses.  What is in dispute is apparently the need for there to be specific wording of the items which are to be paid by the husband.  That seems to apply also in relation to the adult spouse maintenance in relation to the parties’ son AB.  (It appears from the material before me that the necessary provisions of the Act are met in relation to adult spouse maintenance). 

8. I take into account in relation to AB’s expenses that the husband has indicated that he is prepared to include in the expenses that are being paid for by way of food accounts, the food expenses in relation to AB which will be included in those bills. 

9. I also take into account the rent and utility expenses would include items which relate to AB’s upkeep, and therefore do not make any further order in relation to the same for his ongoing care.

10. Save and except as to the question of costs for both parties which will be adjourned to the consideration of the Judge at the final determination, the Application in a Case is dismissed, I have referred the matter to the Conciliation Conference, and it is otherwise listed before the Registrar for directions in due course.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 3 June 2014.

Associate: 

Date:  13 June 2014