Crand and Crand

[2013] FamCA 1051

FAMILY COURT OF AUSTRALIA

CRAND & CRAND [2013] FamCA 1051

FAMILY LAW – PROPERTY – Interim – Where the wife sought interim orders in relation to interim spouse maintenance, injunctions and a child support departure order – Relevant legal principles applied –– Where the court determined that the wife’s expenses are reasonable – Where the court determined that the husband has the capacity to make a payment of spouse maintenance to the wife – Where the court determined that it is just and equitable to make an order for child support departure.

Family Law Act 1975 (Cth) s 75(2)
Child Support (Assessment) Act 1989 (Cth) ss 114, 117(2), 117(2)(c), 117(4)

Mitchell & Mitchell (1995) FLC 92-601

APPLICANT: Ms Crand

RESPONDENT: Mr Crand

FILE NUMBER: SYC 5368 of 2013

DATE DELIVERED: 29 November 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 25 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: Newnhams Solicitors

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Delaney Lawyers

Orders

1. That within seven (7) days of this Order, the husband shall do all acts and things necessary to deposit into the Commonwealth Bank of Australia mortgage account BSB number …, account number … the sum of $105,000 and thereafter be restrained from withdrawing any funds from that account without the written consent of the wife, or further order of this Court.

2. That within seven (7) days of this Order, the wife shall do all acts and things necessary to deposit into the Commonwealth Bank of Australia mortgage account BSB number 062 370, account number 517999101 the sum of $105,000 and thereafter be restrained from withdrawing any funds from that account without the written consent of the husband, or further order of this Court.

3. That the husband shall pay all regular payments to the Commonwealth Bank of Australia due pursuant to the mortgage it holds over B Street, Suburb C as and when they fall due, and indemnify the wife in respect to those amounts.

4. That each of the parties are restrained from accessing, assigning or dealing with in any way the funds held in the Commonwealth Bank of Australia account number ...

5. That the wife is restrained from selling or encumbering, or otherwise dealing with the shares contained within the Commsec Share Portfolio No. …, other than to receive or deal with any dividends as she sees fit, without first giving the husband fourteen (14) days prior notice in writing of her intention to do so.

6. That the parties forthwith do all things and sign all documents to cause to be sold D Street, Suburb E at a sale price as agreed between the parties or failing agreement at a sale price nominated by a valuer appointed by the President of the Property Institute of New South Wales.

7. That upon the sale of the Suburb E property the sale proceeds shall be disbursed in the following priority

   7.1In payment of Agent’s Commission and all reasonable costs of sale;

   7.2In payment of all reasonable legal costs incurred on the sale;

   7.3In discharge of the mortgages or other secured interests;

   7.4In reduction of the Suburb C mortgage; and

   7.5Any balance is to be paid into a controlled money account to be held in the joint names of the parties pending further order of the Court.

8. That pending further order the husband be restrained from selling, mortgaging, assigning or in anyway encumbering any asset in which the husband has an interest either personally or in his capacity as a director and/or shareholder in any company in which he has an interest, without first giving the wife twenty-eight (28) days notice in writing of his intention to do so.

9. That pending further order the husband be restrained from calling for the holding of, or from attending and voting at any meeting of F Pty Ltd, G Pty Ltd, H Pty Ltd, I Pty Ltd, J Pty Ltd  or K Pty Ltd, (“the companies”) whereby it is sought to do any of the following without first giving the wife fourteen (14) days notice in writing of his intention to do so:

   9.1To issue any further shares in the companies or any of them;

   9.2To appoint any further directors to any of the companies, or to appoint any additional or alternate Secretary for any of the companies;

   9.3To make any loan or advance to any other person or other company or entity;

   9.4To guarantee any loan or contractual advance for any other person company or entity;

   9.5To alter or vary the signatories to the bank accounts of the companies;

   9.6To enter into any contract agreement instrument or other document.

10.The husband pay to the wife, up until the completion of the sale of the Suburb E property the sum of $225 per week representing the shortfall between the income and outgoings on the said property.

11.That the husband pay to the wife, or as she may direct, by way of spousal maintenance, the sum of $1,495 per week with the first payment to be made within seven (7) days hereafter and then weekly thereafter.

12.That the assessment issued by the Child Support Registrar in respect of the children L born … 2004, M born … 2007, N born … 2010 and O born … 2012 be departed from so that the husband pay periodic child support in the sum of $1,365 per week.

13.That leave is refused for the husband to make an oral application for the return of goods said to be owned by him or his parents.

14.That leave is granted for the parties to apply to relist the matter, by arrangement with my Associate, upon giving seven (7) days’ notice to the other party and to the Court

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crand & Crand 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 5368 of 2013

Ms Crand

Applicant

And

Mr Crand

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. In these proceedings Ms Crand (“the wife”), seeks a number of interim orders against Mr Crand (“the husband”), which can conveniently be divided into four groups: spousal maintenance; orders dealing with funds drawn down by both parties from the mortgage on the Suburb C property and repayment of that mortgage; restrictions on the husband’s business affairs and on the company owned by him entering into certain dealings and a child support departure order.

3. There was substantial agreement on the third category of orders with the difference being that the husband seeking that the restrictions sought to be imposed by the wife be limited to dealings other than in the normal course of business.  There was no agreement as to the other orders sought by the wife. 

4. The wife was born in 1975 and is 38.  The husband was born in 1972 and is 41.  There are four children of the marriage being:  L born in 2004, and aged nine; M born in 2007, who is aged six; N born in 2010, who is currently three and O born in 2012 and who is currently 12 months old (“the children).  All of the children reside with the wife in the former matrimonial home at B Street, Suburb C.  The parties separated on 9 May 2013.

5. The wife holds a Bachelor degree from the University P, Sydney, having graduated in 1996.  She became a qualified professional in October 1998.  In June 2002, she commenced studying for a post graduate degree, but withdrew from that course when she became pregnant with her first child.  In 2005, she commenced working three days per week but left that employment in September 2008.  For a few months, she was employed working for a company owned and controlled by her husband, F Pty Ltd (“F Pty Ltd”), attending to various office duties.  She has not been in paid employment since September 2008. 

6. The husband owns and operates a business and has done so since May 2010.  He originally worked for his father after he left school, commencing firstly as a regular employee, and then moving to a management position.  The husband controls a number of companies.  F Pty Ltd is said to be the head of the group which includes I Pty Ltd (“I Pty Ltd”), H Pty Ltd (“H Pty Ltd”) and J Pty Ltd (“J Pty Ltd”).  His father also has a number of companies which carry out the business of providing formwork and, in particular, one known as Q Pty Ltd (“Q Pty Ltd”). 

7. In response to the wife’s allegation that the husband had taken over his father’s business, the husband said the following.  He said that his father had not handed full control of his corporate entities to him.  The husband’s father was said by him to have retained his own business interest and assets.  The husband’s companies have commercial dealings with his father’s companies.  Q Pty Ltd, according to the husband, has retained the whole of its assets in relation to equipment. As this is used by the husband’s companies I infer the husband’s company hire that equipment. 

8. Another company owned and controlled by the husband’s father, R Pty Ltd (“R Pty Ltd”), owns premises at S Town.  The S Town property is used by the husband’s companies for storage and processing purposes.  R Pty Ltd also owns premises at Suburb T which are used as office premises by the husband’s company.  The husband said his companies pay rent of $35 000 per month to his father. 

9. F Pty Ltd presently has a contract to provide work in relation to the first stage of the U Project. 

10. Notwithstanding the inter-relationship between the businesses thus described, the husband denies he has taken over the business of his father.  The husband’s companies pay to his father $820 per week for what the husband described as ‘advice and guidance in respect of the conduct of the business of my companies’.  There is obviously a significant relationship between the business of the husband and the father.  A further example is that the husband’s car, the wife’s car, and the husband’s father’s car are all owned by one of the husband’s father’s companies, however, all outgoings are paid by one of the husband’s companies. 

11. No doubt the extent of the relationship between the husband and his father and their respective companies will be the subject of careful consideration at a final hearing.  At an interim hearing, and in the present state of the evidence, it is difficult to make much of it. 

12. The husband asserted that F Pty Ltd made a loss of $336 000 in the year ended June 2012.  The accounts for 2013 have yet to be prepared.  The husband provided a set of the accounts for the year ended June 2012 for F Pty Ltd to the wife.  These accounts do indeed show a loss of $336 625.  They show a revenue for that year of $20 736 631.  Raw materials and consumables used appear in the sum of $20 258 906.  The other expenses are described as $1 452 669.  When one turns to those expenses, one can see that rent was paid in the sum of $570 210.  Although there is a figure for staff training and welfare of $500 and employees’ amenities of $11 682, there is in fact no item listed in the expenses for wages, salaries, management fees or directors’ fees. 

13. It may be that raw materials and consumables referred to earlier includes such fees or subcontractor’s fees.  

14. Also in evidence was a further set of the same company’s accounts for the same period, but this time provided to its banker.  Although they purport to be accounts for the same period for the same company, they are quite different.  Even the formatting is different, although both sets of accounts purport to have been prepared by the same accountants. 

15. The revenue figures and the figure for raw materials and consumables are the same as in the accounts disclosed to the wife.

16. The expenses are quite different, a total of $893 074, as opposed to $1 452 669.  The figure for rent in the accounts given to the bank is only $260 535.  An amount of $309 676 appears as management fees.  As I have said, there was no entry at all for this in the accounts given to the wife.  There are many other differences of lesser importance.  A most significant difference is that the accounts given to the bank show a profit before income tax of $204 615 and $141 527 after payment of income tax.  This is, of course, remarkably different to a significant loss.

17. It is not presently possibly to determine which sets of accounts is correct.  It may well be that neither is at all accurate.  For present purposes, credence cannot be given to one over the other.  What can be drawn from the accounts are these, firstly, the F Pty Ltd, on any view of both sets of accounts, has a significant turnover.  Secondly, given that the husband has apparently provided one set of the accounts of F Pty Ltd to the wife and a strikingly different set of the same accounts to his bankers, there must be a real concern about the quality and extent of any disclosure given by the husband and his financial circumstances.

18. In that position, the court is permitted to take a less cautious approach to making the interim orders then it otherwise might have taken. 

19. Leaving aside the companies, the parties have the following assets: the property at B Street, Suburb C, which is valued at $2.3 million which presently has a mortgage of some $400 000, they also own D Street, Suburb E, valued at $610 000 with a mortgage of $382 000.  According to the wife’s Financial Statement, she has control of a CommSec share account, presently standing at $330 498.  She has a Commonwealth Bank of Australia account described as being in trust for the children of $279 699 and a Bankwest account of $341 575.

20. As at 4 November 2013, the Bankwest account stood in the sum of $302 654.

21. The husband also has two bank accounts with the Commonwealth Bank of Australia, one in the sum of $116 703 and one described as a Commonwealth Bank of Australia debit account with a sum standing to a benefit of $95 959.  Each of the parties also has a number of accounts with approximately $1000 or less in them.  The husband’s Commonwealth Bank of Australia account with the balance of $116 703 was opened on 7 May 2013 with a deposit of $200 000.  As at 24 October 2012, the balance was $108 146.  I shall return to that account shortly.

22. The parties have an interest of some $264 000 in a superannuation fund, according to the husband and of $121 864 according to the wife.  The wife asserts and the husband denies that he has an interest in the KBSG Properties Campbelltown Trust.  Apart from the mortgages, the only other agreed liabilities are some credit card expenses.

The Issues

1. I now turn to the particular issues to be determined.  It is necessary to recognise that the groups of issues are interdependent to some degree and that there is some considerable degree of overlap in the matters that need to be considered.

2. Dealing firstly with the mortgage drawings, the Suburb C property has a mortgage with a redraw facility.  As at 26 April 2013, the balance was merely $667.57.  On 30 April 2013, the husband withdrew $94 800.  On the 1 May, the husband withdrew $100 000.  On 2 May, the husband withdrew a further $100 000, making total withdrawals of $294 000.  These funds were deposited into the husband’s Smart Access account. 

3. On 30 April 2013, $90 000 was transferred from that account. Its fate remains unknown.  On 7 May, $200 000 was withdrawn.  Given the dates of its withdrawal and the date of the deposit of $200 000 into the CBA account to which I have just referred, it is much more likely than not that the source of the funds in the husband’s NetBank Saver account is the $200 000 withdrawn from the Suburb C mortgage on 1 and 2 May 2013. 

4. The husband said of these transactions:

   The mortgage facility is also to provide capital funds for the business.  The moneys removed by me from the joint account are necessary for my companies to provide capital for business expenditure, school fees, rent for my unit, furniture and legal fees.  The applicant has refused me access to the bank accounts, holding joint funds in excess of $350 000.

5. On 2 May 2013, the wife withdrew $100 000 from the Suburb C mortgage account and $5000 on 3 May, taking the facility to its limit of $400 000.  These funds were retained by her and are presently held in her Bankwest account. 

6. As a consequence of these withdrawals, the mortgage repayments have increased from $3.25 per month to $1853 per month.  The wife proposes that the parties deposit bank into the mortgage account the moneys they drew from it and be restrained from drawing further funds and take steps to discharge the mortgage.

7. The husband proposes that he continue to pay the mortgage.  He proposes that he also pay the Suburb E mortgage.  In order to do so, he seeks an order that the rentals from the Suburb E property, presently paid to the wife, be paid to him.  He proposes orders for the sale of Suburb E property.  The orders for sale are not opposed.  The husband further seeks orders restraining the wife from dealing with the bank account containing the $280 000 on the basis that he agrees it is held in trust for the children. He asserts that the CommSec account is also held in trust for the children.  The wife consents to the restraint on the first of those two accounts.

8. The upshot of these proposed orders is that the wife will have available to her $341 000, including the $105 000 taken from the Suburb C mortgage account and, thus, the husband proceeds to submit, she cannot then demonstrate that she cannot adequately maintain herself.  The consequence of the above orders is, that, as the husband puts it, the wife will be unable to satisfy the court that she is entitled to a spousal maintenance order.  It is thus necessary to turn to this issue before returning to the fate of the mortgage.

The wife’s application for spousal maintenance

1. The wife seeks spousal maintenance in the sum of $1495 per week.  According to her financial statement of 12 September 2013, her income is $1517 per week, consisting of the Suburb E rent of $520, shared dividends of $277, child support actually paid by the husband of $464 and interest of $256 per week.  Her expenses are both mortgages, that is $464 and $588 a week, rates, insurance and taxes totalling $1561 per week.  Her personal expenditure is said, therefore, to be some $2548.

2. An order for spousal maintenance can be made only if the wife can demonstrate she is unable to support herself adequately by reason of the care of children under 18, capacity for gainful employment or any other reason, having regard to the relevant matters referred to in section 75(2) of the Family Law Act 1975 (Cth) (“the Act”).

3. The husband submits that the wife has the means to support herself, this is because she has $341 000 available to her and she has the capacity to work.  She has, in fact, not worked since 2008.  She has the care of three children, aged nine, five, three and nine months.  She has carried on the role of a full-time parent by agreement with the husband for some seven years.  Although she was paid $120 000 per annum by J Pty Ltd until 23 April, her evidence is that she did not work for the company to receive that.

4. Although the husband said the payments to the wife by J  Pty Ltd stopped because she was no longer able to provide any services to that company, he never described what those services were.  As I have said, the wife does not assert that she provided any.  Although the wife clearly has a capacity to work, given her qualifications that capacity is clearly limited by the care of the children.  At best, one could expect her to work part-time for limited hours.  There was no evidence as to such work that might be available and what any remuneration for such work might be.  It is thus impossible to identify what income that limited capacity could generate.

5. As to the $341 000 held by the wife, if orders are made for the repayment of the sums from the mortgage account, it will reduce the sum to $236 000.  In any event, it is not necessary for an applicant to use up all her assets in capital in order to satisfy the requirement that she is unable to support herself adequately.  Where the line is to be drawn depends on a number of circumstances (see Mitchell & Mitchell (1995) FLC 92-601 at page 81,995). The shared dividends and the interest on the bank account are being taken into account to determine her income. Any reduction in the bank accounts held by her or restriction on the use would, of course, reduce the funds available to her, particularly in respect of interest and, thus, increase the shortfall.

1. The husband’s submissions are thus rejected. 

2. The husband further submits that the wife’s expenses are excessive.  The parties had a very comfortable lifestyle.  In 2012, for example, the parties spent six weeks in Europe.  They live in a comfortable home.  These are relevant factors to take into account.  The wife cannot be expected to adopt a merely subsistence lifestyle.  In the circumstances, I find her expenses to be reasonable.  It is to be recalled that until recently she had the benefit of $120 000 to assist with her expenses and those of the children.

3. As the wife agrees to an order restraining the parties from dealing with the account containing the $280 000 on the basis it is asserted that those funds are held in trust for children, the interest in that account will not be available to her.  There is no such consensus as to the CommSec account.  There is a dispute between the parties as to whether or not that account is held in trust for the children.  The better course to deal with that account is to limit the wife dealing with those shares by requiring her to give 14 days notice of any intended dealing with the shares.  She will, however, be entitled to use any share dividends for her benefit.

4. This will preserve the shares, but will permit appropriate consensual dealings with the parties and will not increase the shortfall between her income and outgoings.  Whilst the CommSec income will be available, the interest in the bank accounts will reduce, pursuant to the orders in relation to the bank accounts.  Her expenses will fall by a significant amount if the repayments are made to the Suburb C mortgage and the Suburb E property is sold.  The sum sought by the wife is thus an appropriate sum for her maintenance.

5. The husband says that he cannot pay the sum as his only sources of income are his wages of $2280 per week and a fringe benefit of $155 per week relating to his use of his motor vehicle. 

6. As submitted by the wife, it is rather surprising that a person controlling and having the benefit of owning a company with a turnover of some $20 million per annum receives such a modest wage.  I have already referred to the parties’ holiday in 2012.  In 2010 there was a seven week trip to Europe and Hong Kong for the entire family.  In 2011, the family took holidays to Melbourne, Fiji and the Gold Coast.  In July 2012, the parties advanced $250 000 to F Pty Ltd.  The parties have, as would be obvious, accumulated the various sums in the bank accounts and CommSec Share accounts referred to earlier.  These are substantial sums.

7. F Pty Ltd rents premises at S Town from one of the father’s companies.  The wife asserts that F Pty Ltd has spent in excess of $1 million in improving and developing that property, notwithstanding it was a tenant.  In response, the husband said, ‘The amount expended is not in excess of $1 million’.

8. The wife asserts that F Pty Ltd pays the loan repayments on behalf of the S Town property in the sum of $25 820 per month.  In response, the husband said:

   [F Pty Ltd] pays rent for the premises, which consists of storage yards and offices.

9. As earlier said, he asserts that the total rent to be paid for all the premises to be some $35 000 per month.  Whether the payments to the husband’s company are properly to be described as rent or not, there are clearly substantial regular payments being made by F Pty Ltd to his father’s companies.  F Pty Ltd pays $820 a week to the husband’s father for guidance and advice.  The parties acquired the Suburb C property and redeveloped it.  It is valued at 2.3 million.  Until recently it was not burdened by a mortgage of any significance.

10. F Pty Ltd pays the outgoings and expenses, including the lease expenses, for three vehicles, one is Vehicle 1, purchased in September 2012 for $160 000.  The husband has ordered a SUV at a cost of at least $170 000.  Until April this year, J Pty Ltd was paying the wife $120 000.  In 2011 and 2012, J Pty Ltd made superannuation payments for the benefit of the parties and also the benefit of the husband’s parents. 

11. The wife asserts that at times cash in excess of $100 000 has been held at the safe at their home.  She says that prior to separation there was some $50 000 cash, but that it was removed by the husband at that time.

12. She says that the husband said to her, ‘I took it, it is mine.  I need some of it to pay bonuses to the foreman’.  In response to that the husband merely said:

    The safe is a small unit under a desk to hold jewellery, other important valuable objects and some moneys from time to time.  I have no access to the safe.  The applicant holds the keys.

13. Thus, whilst there would appear to be a dispute as to who took the money, there would not seem to be a dispute that some $50 000 cash was held there at the time. 

14. On 26 September 2013, the husband spent $15 680 at a sporting venue. 

15. All this indicates that the husband has ready access to funds and assets that extend far beyond his declared wage.  Taking into account his attitude to disclosure as demonstrated by the two sets of F Pty Ltd accounts and his failure adequately to describe the fate of the $90,000 taken from the Suburb C mortgage, a less than cautious approach can be taken to findings about his capacity to meet the payment sought by the wife.

16. I am comfortably satisfied that the husband has the means to meet the sum sought by the wife.  All of these matters support the making of an order for the payment of spousal maintenance, the sum of $1495 per week.

17. Returning then to the issue of the sums taken from the Suburb C mortgage.  Repayment of the sums removed from the mortgage account has two advantages. It preserves the capital of the parties for a final hearing.  It would also reduce the burden on the husband, as it will reduce the monthly mortgage payments to be made by him, pursuant to the orders he seeks. 

18. The wife retains the funds that she took from the account.  The position of the husband is not clear.  He has approximately $108 000 in an account into which was placed the $200 000 he took from the Suburb C mortgage account.  The fate of the balance of $90 000 remains unexplained.

19. It may be inferred that he still has those funds, but the safer course is for the court to proceed on what is clear.  That sum, no doubt, will have to be accounted for at a final hearing. 

20. Since each party has in their possession at least $105 000 taken from the mortgage account, there will be an order that each party will, within seven days, repay $105 000 into the Suburb C mortgage account.  There will be a restraint on redrawing.  The husband will pay the mortgage repayments.  The husband’s proposal is that he also pay the Suburb E mortgage, pending the sale of that property.  In order to do so, he seeks an order that the wife pay to him all the rentals received by her in respect of that property.

21. The wife said that the shortfall between the rent received and the outgoings, that is the mortgage repayment, strata levies and the like is some $900 per month.  The simpler course is merely to have the husband pay the shortfall to the wife until the sale is completed, thus there will be an order for a payment of him of $225 per week for that purpose, the wife will continue to receive the rent and pay the mortgage.

22. Thus, taking these further matters into account, I am satisfied that the order proposed earlier in relation to spousal maintenance is a proper order for the provision of spousal maintenance.

The wife’s application for child support departure

1. The wife seeks an order for child support departure in the sum of $1925 per week.  The husband proposes an order in the sum of $1000 per week. 

2. On 18 June 2013, a child support assessment issued requiring the husband to pay child support in the sum of $427.51 per week. 

3. In order to make a child support departure order the court must be satisfied that one or more of the grounds for departure mentioned in section 117(2) of the Child Support (Assessment) Act1989 (Cth) (“the Child Support (Assessment) Act”) exists and that it would be just and equitable, as regards the child, the care entitled to child support and the liable parent, and otherwise proper to make a particular order under this division.

4. Pursuant to section 117(2)(c) of the Child Support (Assessment) Act a ground will exist where, in special circumstances of the case, the application in relation to a child of the provisions of this Act relating to an administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income, property and financial resources of other parent or the earning capacity of the other parent. I have already found on the evidence before me that the husband has the capacity to pay spousal maintenance, notwithstanding his declared income. For precisely those same reasons, I am satisfied that the property, financial resources and earning capacity of the husband would indicate that the administrative assessment of child support is unjust and inequitable.

5. The husband accepts this in proposing a child support departure order requiring payment of $1000 per week. This recognises the needs of the children are not being met by the administrative assessment. Thus I am satisfied, in these special circumstances, it would be unjust and inequitable for the child support to be determined by the administrative assessment within the meaning of section 117(2)(c) of the Child Support (Assessment) Act.

6. Regard must be had to the provisions of section 117(4) of that Act.  Most of those matters have already been discussed and I will not repeat them.  The focus by the parties at the hearing was on what constituted the proper needs of the children.  The wife asserts that these needs are valued in the sum of $2 437 per week.  The husband pays school fees of $514 per week, giving rise to the sum sought by the wife of $1925.  The husband submits that the claimed expenses of the children are excessive and do not represent their needs.  In particular, reference was made to the claimed child minding fees of $560 per week, costs for cleaning the house and pool of $94 per week, gifts of $89 per week, which makes a total of $743.

7. The criticism of the first two items was they have not been shown to be necessary, given that the wife was not working.  Whilst some child minding could well be necessary, it has not been established that child minding to the degree claimed is necessary.  As to the other matters, having regard to the matter in which the children have been raised, are being raised and the manner in which the parents expect the children to be cared for and educated, I am not satisfied that those expenses are excessive.  This reduces the amount to $1365 per week.

8. It was next submitted by the husband that even if $1365 or a similar amount represents the needs of the children, because of the objects of Part 7, Division 4, as stated in section 114 of the Child Support (Assessment) Act the orders proposed by him should be made. The objects so stated include ensuring that the needs of the children are met from the resources of both parents and that both parents should share equitably in the support of their children.

9. The difficulty is that the parties’ financial property, resources and income are not yet finally known.  This is particularly so in relation to the husband’s companies and the dealings with his father and his companies.  It is not yet known how the assets of the parties will be apportioned between them, pursuant to a final hearing.  The only available financial resource presently available to the wife will be the sum of some $235 000 remaining in her bank account after repayment of the Suburb C mortgage account.  For the reasons given earlier, she should not be required to resort to that capital to support the children.  This is all the more so given the apparent assets under the control of the husband.

Conclusion

1. I find it is just and equitable, therefore, to make an order for child support departure in the sum of $1365 per week, taking into account all of the matters referred to above and the other orders being made, it is otherwise proper to make that order.

2. The next order to be determined is the extent of the restraint on the husband dealing with the companies and his assets.  He submits that the order proposed by the wife should be limited to dealings other than in the normal course of business.  Even the more usual phrase, “ordinary course of business”, contains within it some vagaries.  The better course is to require the husband to give prior written notice of dealings.  That notice is already incorporated in one of the orders proposed by the wife. In relation to the other, a period of 14 days notice will be given.  The reason for the shorter notice is to permit greater business efficacy.

3. The husband sought an order for the return of certain goods.  No notice was given of that proposed order.  No evidence in support of it was adduced.  Leave to make an oral application or that order is thus refused.  Accordingly, the orders are as will be handed out shortly.

I certify that the preceding sixty - nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 29 November 2013.

Legal Associate: 

Date:  21 January 2014