Crawford & Crawford
[2021] FamCA 15
•29 January 2021
FAMILY COURT OF AUSTRALIA
Crawford & Crawford [2021] FamCA 15
File number(s): ADC 4656 of 2020 Judgment of: BERMAN J Date of judgment: 29 January 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Orders – Interim parenting orders formalising current arrangements made by consent.
FAMILY LAW – PROPERTY – Companies – Where the husband seeks that the wife resign as a director of a company – Where the wife opposes such an order – Where the wife is the sole director – Where the parties agree to appoint the husband as a director – Where the wife is concerned about a proposed business development – Where the husband considers the development is necessary for the financial viability of the business – Where a third party is unwilling to be involved in the development whilst the wife remains involved – Where there is insufficient evidence.
FAMILY LAW – PROPERTY – Interim – Where the parties are in dispute about the financial distributions to be made to the wife on a weekly basis for her personal and discretionary expenditure – Where the parties signed an Undertaking wherein the wife would receive $2,000 to meet her expenses – Consideration of the financial circumstances of both parties – Where the parties are in dispute about the amount to be used to purchase a motor vehicle for the wife – Where there is no reason for the higher amount as sought by the wife – Orders.
FAMILY LAW – INJUNCTIONS – Preservation of property – Where the parties agree to various injunctions – Where the parties agree the husband is to be restrained from dealing with his interest in a trades business subject to the normal course of business – Where the husband considers he should be permitted to deal with a proposed business development – Where the wife is concerned the proposed development may diminish the husband’s interest in the trades business – Where the husband holds a fifty percent interest in the company together with his father – Where the husband considers that without the development the financial viability of the business is at risk – Where there is not enough evidence about the proposed development – Where it is not a matter for the Court to consider every business decision that may be made by a party – Where it is likely that any development will require the consent of each of the parties – Orders.
Number of paragraphs: 91 Date of hearing: 14 January 2021 Place: Adelaide Counsel for the Applicant: Mr Robertson SC and Ms Miller Solicitor for the Applicant: Barnes Brinsley Shaw Lawyers Counsel for the Respondent: Mr Bullock and Mr Richards Solicitor for the Respondent: Howe Jenkin ORDERS
ADC 4656 of 2020 BETWEEN: MR CRAWFORD
ApplicantAND: MS CRAWFORD
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
29 JANUARY 2021
THE COURT ORDERS:
1.That during the period of the adjournment X born … 2007 shall live with the husband and spend time with the wife as agreed.
2.That during the period of the adjournment Y born … 2010 shall live with the wife and spend time with the husband as agreed.
3.That unless otherwise agreed handovers of X and Y (“the children”) which do not take place at the children’s school shall take place at the parties’ residences with the other party who is due to have the children in his or her care to collect the children from the other party’s residence.
4.That the parties do communicate regarding the children’s care, welfare and development by way of SMS text messaging.
5.That in the event that either party is unable to care for the children in accordance with the foregoing arrangements, then the other party be given the first option to care for the children.
6.That without admission, the parties each be restrained by way of an injunction from:-
(a)denigrating the other to the children or within their hearing;
(b)physically disciplining the children; and
(c)allowing or permitting any other person to denigrate either of the parties in the presence of the children or to physically discipline them.
7.That as soon as is practicable, the parties do all things necessary to jointly obtain a Family Assessment Report at their equal expense from either Ms B or Ms C of D Psychology (whoever is first available) or such other psychologist as may be agreed between the parties, with the report to be directed to the topic of what time and under what conditions the children should spend with each of their parents and any recommendations for further therapeutic counselling of the children NOTING that at first instance the cost of the Family Assessment Report shall be by way of draw down from the account of V Pty Ltd.
8.That the wife do forthwith take all such actions as may be necessary to appoint the husband as a director of G Pty Ltd.
9.That the wife be restrained and an injunction be granted restraining the wife from taking any action to remove the husband as a director of G Pty Ltd once appointed.
10.That within seven (7) days the husband, if he has not already done so, do transfer the sum of THREE HUNDRED AND SIXTY THOUSAND DOLLARS ($360,000) to the ANZ account in the name of V Pty Ltd.
11.That the husband do forthwith take all such action as may be necessary to appoint the wife as a director of V Pty Ltd.
12.That the husband be restrained and an injunction be granted restraining the husband from taking any action to remove the wife as a director of V Pty Ltd once appointed.
13.That the husband be restrained by way of injunction from the following without the prior consent of the wife:-
(a)Selling, disposing of, transferring, encumbering or otherwise dealing with any interest the husband has in:-
(i)Crawford Pty Ltd (subject to the normal course of business including any development of premises for the operation of the business save as to H Street property as held by G Pty Ltd);
(ii)V Pty Ltd;
(iii)Crawford Family Trust;
(iv)J Trust; and/or
(v)In any property owned by him and/or the wife including but not limited to the boat, pending further order or written consent of the wife.
(b)Altering the trustees in Crawford Family Trust or J Trust without the prior written consent of the wife.
14.That within thirty (30) days each party do provide disclosure of all relevant documents.
15.That within seven (7) days both the husband and the wife each be permitted to draw from the account of V Pty Ltd the sum of SIXTY THOUSAND DOLLARS ($60,000) paid to their respective solicitors’ trust accounts on account of current and future legal fees.
16.That the parties do cause V Pty Ltd to pay:-
(a)Within seven (7) days the sum of SIXTEEN THOUSAND FIVE HUNDRED AND NINETY THREE DOLLARS AND FORTY FIVE CENTS ($16,593.45) to the wife’s ANZ Bank Visa Card account number #…85 being the balance owing as at 23 June 2020;
(b)The children’s school fees, books and uniforms, materials, equipment (including IT), excursions, private tutoring and occupational therapist costs;
(c)All outgoings for the former matrimonial home including but not limited to utilities, rates, emergency services levy, pool maintenance, security system, internet expenses and house repairs;
(d)The parties’ K life insurance and L health insurance;
(e)To the wife the sum of ONE THOUSAND THREE HUNDRED AND SEVENTY THREE DOLLARS ($1,373) per week;
(f)Contemporaneously with the return of motor vehicle 1 currently in the wife’s possession to Crawford Pty Ltd the sum of FIFTY THOUSAND DOLLARS ($50,000) plus stamp duty and other acquisition costs be paid to the wife to enable her to purchase a motor vehicle at her election and for her future use.
17.That the wife do within seven (7) days at a time nominated by her in writing to the husband’s solicitors make available for collection by the husband the following:-
(a)Old business files stored at the former matrimonial home;
(b)The husband’s tools;
(c)The husband's water sport equipment;
(d)The boat, wakeboard and water skiing equipment;
(e)One half of the wine collection of the parties either as agreed between the parties or in the absence of agreement on a pick by pick basis, with the wife to have the first pick.
18.That the husband do forthwith attend M Bank at P City to sign all documents to complete the opening of a joint interest bearing account in the names of the parties to receive the proceeds of sale of the motor vehicle 2, with neither party to withdraw, transfer or otherwise deal with those funds without the other party’s consent in writing or until further order.
19.That the wife be restrained and an injunction be granted restraining her from selling, disposing of, transferring or otherwise dealing with the personal property situated in or about the former matrimonial home subject to further order or written agreement.
20.That the proceedings be adjourned for further consideration to a date to be advised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crawford & Crawford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Amended Initiating Application filed 3 November 2020, Mr Crawford (“the husband”) seeks parenting orders in respect of X born in 2007 and Y born in 2010, collectively (“the children”) and orders for settlement of property.
By Response filed 7 December 2020, Ms Crawford (“the wife”) opposes the final orders sought by the husband.
By order of a Registrar on 3 November 2020 the interim orders sought by each of the parties were adjourned. The matter was listed for hearing on 14 January 2021.
PARENTING BACKGROUND
The parties were married in 2004 and separated on 1 February 2020. X is currently 13 years of age and Y is 10 years of age. Both children attend a school in P City.
The husband is employed as a director of and holds valuable interest in Crawford Pty Ltd.
The wife is not in current employment.
Y currently lives with the wife and X lives with the husband. The children spend limited time with the non-primary care parent and with each other.
Both parties accept that the current parenting arrangements are not ideal. The husband proposes that the children live with each of the parties on a week about basis, whereas the wife rejects that proposal but seeks an indication as to the psychological and emotional needs of the children before she is able to commit to orders.
It appears that the children may have taken an active role in the conflict between the parties.
For the present, the parties have agreed interim orders which will formalise the current arrangements pending the parties obtaining a family assessment report directed to the topic of the future parenting arrangements for the children.
At the commencement of the proceedings counsel for each of the parties tendered a proposed Minute of Order.
The parties have agreed interim parenting orders in terms of paragraphs 1 to 7 of the interim orders proposed by the husband.
PROPERTY BACKGROUND
The husband’s father and grandfather were owners of a business known as Crawford Pty Ltd. The business had been established by the husband’s grandfather. The husband commenced employment at the business in 1995. At that time, the husband’s father owned one half of the business with the balance being held by third party owners.
The husband purchased a property in R Street, P City (“the R Street property”) in December 1999.
At the time of the commencement of cohabitation in September 2001, the husband contends that the renovation work for the R Street property was completed.
During the early years of the marriage the parties subdivided the R Street property into three titles and constructed two new Torrens Title town houses.
In 2011 the parties purchased a four bedroom home at N Street, P City (“the N Street property”).
On 15 August 2002 the husband established the Crawford Family Trust. V Pty Ltd is the trustee of Crawford Family Trust. The husband is the appointor of Crawford Family Trust and the sole director of V Pty Ltd.
In about 2016 the parties sold the N Street property and purchased a new property in Q Street, P City (“the Q Street property”).
Following separation the wife remained in the Q Street property.
The husband is one of two directors of Crawford Pty Ltd. The husband’s father Mr S Crawford is the other director.
The shareholding of Crawford Pty Ltd is as follows:-
·Mr S Crawford owns a 20 percent interest;
·T Pty Ltd as trustee for Crawford Family Trust owns a 30 percent interest;
·The husband owns a 10 percent interest;
·V Pty Ltd as trustee for Crawford Family Trust owns the remaining 40 percent interest.
Accordingly, the husband both directly and indirectly owns 50 percent of Crawford Pty Ltd with the remaining 50 percent held directly or indirectly by the husband’s father.
It is uncontroversial that the core business of Crawford Pty Ltd is the sale of goods pursuant to four franchisers with F1, F2, F3 and F4.
With the departure of W Corporation from Australia, the husband considers that the financial position of the business is parlous. Whilst not the subject of agreement by the wife, the husband contends that the retention of the F2 franchise is critical. The husband asserts that unless there is a significant business venue development undertaken, the retention of the F2 franchise is not certain.
On 18 December 2018 the parties caused the establishment of the J Trust. The wife holds 100 percent of the shares in G Pty Ltd which is the trustee of the J Trust. The husband is the appointor of the J Trust, whereas the wife is currently the sole director of G Pty Ltd.
G Pty Ltd owns commercial real estate on H Street utilised by Crawford Pty Ltd.
The land, in conjunction with adjoining land rented from third parties, is used for the F2 franchise.
The husband contends that F2 now require a new business venue to be developed either at the H Street site of Crawford Pty Ltd or at an alternative site on Z Street.
The husband concedes that the development of the new business venue is a significant enterprise and is only possible with the support of the husband’s father and a significant financial investment by him.
According to the husband and with apparent corroboration by reference to the affidavit of the husband’s father, the husband’s father will not invest in the H Street development while the wife has any residual involvement. In summary, the husband intends to develop the H Street site and seeks orders that would remove the wife as a director of G Pty Ltd. The husband considers that the H Street site is superior to the Z Street site given its prominence in the P City area. The commercial aspects of the development are complicated by the G Pty Ltd land being valued in May 2020 at $1,425,000 but there being a debt to the ANZ Bank secured against the land with collateral security over the Q Street property of $1,475,000. The financial circumstances of the parties are made more complex by their mutual mistrust of each other.
The wife is not necessarily opposed to the H Street development but she argues that without more information there is the potential for the husband’s interest in Crawford Pty Ltd to be significantly diminished. The wife considers that the husband’s interest is a significant asset available to the parties.
Following separation the parties engaged in negotiations in an attempt to resolve interim issues.
The negotiations resulted in an agreement between the parties set out in an Undertaking being Annexure “B” to the wife’s affidavit filed 7 December 2020. The husband now seeks to resile from some of the terms and conditions of the Undertaking whereas the wife resists those changes.
THE SEPARATE PROPOSED MINUTES OF ORDER
The following issues are either agreed or require determination:-
(1)The parties agree that the wife will do all that is necessary to appoint the husband as a director of G Pty Ltd.
(2)The husband seeks that the wife resign as a director of G Pty Ltd. The wife opposes her forced resignation.
(3)The wife seeks that the husband appoint the wife as a joint director of V Pty Ltd. The husband considers that it is unnecessary to do so but is not strongly opposed.
(4)The parties are agreed that the wife be restrained from taking any action thereafter to remove the husband as a director of G Pty Ltd.
(5)The parties are agreed that within seven days the husband do transfer the sum of $360,000 to the ANZ Bank account in the name of V Pty Ltd. It is agreed that the monies have already been transferred, however the wife also argued that a further sum of $30,000 should be the subject of order. Whilst still pressed, the wife accepts that it is a matter that can be dealt with at a final hearing.
(6)The parties are agreed that without the prior written consent of the wife, the husband will be restrained by way of injunction from selling, disposing of, transferring, encumbering or otherwise dealing with any interest the husband has in:-
· Crawford Pty Ltd;
· V Pty Ltd;
· Crawford Family Trust;
· The J Trust;
·Altering the trustees in Crawford Family Trust or the J Trust without the written consent of the wife;
·Any property owned by him and/or the wife, including but not limited to, the boat pending further order or the written consent of the wife.
(7)The husband seeks that the injunction in respect of dealing with any interest in Crawford Pty Ltd be subject to the normal course of business (including any development of premises for the operation of the business).
(8)The parties are agreed to provide disclosure of all relevant documents.
(9)The parties are agreed that they each draw from the account of V Pty Ltd a sum to be paid to their respective solicitors trust accounts on account of current and future fees.
(10)The parties are agreed that the husband do cause V Pty Ltd to pay:-
·$16,593.45 to the wife’s ANZ Bank Visa Account being the balance owing as at 23 June 2020;
·The children’s school fees, books and uniforms, materials, equipment (including IT), excursions, private tutoring and occupational therapist costs;
·All outgoings for the former matrimonial home, including but not limited to, utilities, rates, emergency services levy, pool maintenance, security system and internet; and
·The parties K life insurance and L health insurance.
(11)In addition, the wife seeks the sum of $2,000 per week for her personal and discretionary expenditure, whereas the husband considers that the sum of $800 per week is the appropriate amount.
(12)As at the date of separation, the wife had the use of a motor vehicle with an agreed value of $50,000. The parties have been in dispute in respect of the retention of the vehicle by the wife. Crawford Pty Ltd had purportedly sought that the wife return the vehicle to the business. The wife has refused to do so. The husband has proposed that the sum of $50,000 be withdrawn from V Pty Ltd and paid to Crawford Pty Ltd in order to acquire motor vehicle 1 such that it can remain in the wife’s possession. The wife’s position has now altered and she no longer seeks to retain the motor vehicle but rather seeks that $70,000 be utilised for the purchase of a motor vehicle of her choosing. The husband is prepared to concede $50,000 and there remains a dispute between the parties as to the extent that a further $20,000 should be withdrawn from the Crawford Family Trust account for use by the wife to purchase a motor vehicle of her choice.
(13)The parties are agreed as to the return to the husband of the following:-
· Old business files;
· The husband’s tools;
· The husband's water sport equipment;
· The boat, wakeboard and water skiing equipment.
(14)The parties are not agreed as to what would comprise the husband’s wine collection. The wife considers that the wine collection should be divided equally between them.
(15)The parties also agree that they will do all that is necessary to open an M Bank account to receive the proceeds of the sale of the motor vehicle 2.
(16)The parties agree that the wife will be restrained from selling, disposing of, transferring or otherwise dealing with the personal property situated in and about the former matrimonial home without further order or agreement between the parties.
G Pty Ltd and H Street development
The wife is currently the sole director and shareholder of G Pty Ltd. The husband seeks to be appointed as a director of G Pty Ltd but seeks that the wife resign her directorship. The wife is opposed to such resignation.
It is likely that the wife was placed in the role of sole director of G Pty Ltd in order to protect the assets of the J Trust. As discussed, G Pty Ltd owns property on H Street, P City purchased from the husband’s father with the intention that it may be the subject of a business venue development.
The wife acknowledges that since 2018 the parties have considered the possibility of redevelopment, initially in respect of premises to be used by Crawford Pty Ltd but more latterly in respect of a business venue development as part of the franchise arrangements with F2.
The wife argues that there is no legal basis for her removal of as a director. At this stage she challenges the factual basis for removal.
The wife is not opposed to the husband being appointed as a co-director of G Pty Ltd. By reference to the affidavit of the husband’s father filed 24 December 2020, further aspects of the complexity of the financial circumstances affecting the parties are expressed.
Mr Crawford records his strong preference for the development of the H Street site in preference to the Z Street site, however, he also considers that the Z Street site could be developed to meet the requirements of F2 necessary for the franchise to continue.
The current H Street site is comprised of land owned by G Pty Ltd but also includes rented land owned by Mr and Ms S (“the S Land”).
Mr Crawford opines that the S Land could be purchased for about $1 million and the refurbishment and development of the consolidated site would cost about $1.5 million.
Mr Crawford annexes correspondence between F2 and Crawford Pty Ltd concerning the current inadequacy of the F2 display business venue and seeking confirmation by 31 July 2020 of the plan to undertake the necessary development.
The further consideration of Mr Crawford contemplates the possibility that F2 may well be looking to terminate its trades business arrangement with Crawford Pty Ltd, influenced by the withdrawal of W Corporation from the market.
Mr Crawford has been attempting to negotiate a resolution with the wife and on 24 July 2020 a proposal was put to her that if she relinquished her directorship of G Pty Ltd he would ensure that the wife was released from any personal guarantee given by her and would cause a renegotiation of the current collateral security over the former matrimonial home.
The parties have not been able to reach agreement.
For reasons that are not explained, Mr Crawford considers that G Pty Ltd would not be able to obtain commercial finance whilst the wife remains in control. Mr Crawford considers that the finance arrangements would in any event be unsuccessful unless he was prepared to commit $1 million in support of the finance application. He is not prepared to do so whilst the wife remains involved.
The wife’s opposition to her removal as a director of G Pty Ltd and possibly to the proposed H Street development is in part borne of her mistrust of the husband arising from her assertion that without her consent or knowledge he withdrew $390,000 from the account held by V Pty Ltd. The husband rejects the wife’s allegation that it was done to disadvantage her and argues that in any event the sum of $360,000 is now to be restored to the V Pty Ltd account.
The wife further contends that notwithstanding the extensive discussions between the parties and the husband’s father the proposed development is at best embryonic. Her concern is that there is not a clear business plan that would give her confidence that if the development proceeds it will not adversely impact upon the current value of the husband’s interest in Crawford Pty Ltd. The husband would argue that without the development the financial viability of the business is at risk.
There has not been evidence presented that would support the financial viability and implication for Crawford Pty Ltd and therefore the husband’s direct and indirect interest in same.
There is potential merit in the position adopted by each of the parties. In the absence of evidence the Court has no ability to determine, whether if orders are made as sought by the husband, they will have the effect of preserving the value of the assets of the parties.
I do not ignore the potential for difficulty to be created if F2 were not to renew their franchise in the absence of a suitable business venue development, nor the obvious issue that will arise if Crawford Pty Ltd does not renew its lease arrangement with G Pty Ltd in circumstances where G Pty Ltd would have no ability to cover the loan repayments in respect of the H Street property.
It is not for the Court to exercise its discretion in the absence of evidence that it thinks will either preserve the property of the parties or prove to be financially advantageous.
I accept that at this stage there is not sufficient evidence that would enable the Court to make an informed decision and on that basis whilst I consider there is merit in the husband becoming a co-director of G Pty Ltd, I am not prepared to order the wife’s removal as a director even were that to be a possible course of conduct.
If the parties are now faced with financial uncertainty then the obvious way forward is for each of them to engage in a negotiated resolution.
As discussed with counsel, I am prepared to entertain a fresh application where better evidence than is currently available is put forward.
V Pty Ltd
V Pty Ltd is the trustee of Crawford Family Trust. It holds 40 percent of the issued shares in Crawford Pty Ltd and now a significant cash sum from which the parties have agreed there are to be certain withdrawals.
The wife seeks to be appointed as a director of V Pty Ltd whereas the husband is opposed but not strongly so.
Whilst it is likely that little turns on the decision, in circumstances where the husband is prepared to be the subject of injunction and restraint in terms of his ability to deal with the property of V Pty Ltd, there is some advantage to the wife being appointed as a co-director.
Conditions of restraint upon the husband
The parties are agreed that the husband will be the subject of wide injunction.
The parties are agreed that the husband’s order of injunction should allow for dealings in respect of Crawford Pty Ltd in the normal course of business. The wife opposes any dealing in respect of development or premises for the operation of the business.
The husband does not control Crawford Pty Ltd. He holds a 50 percent interest together with his father.
I accept that Crawford Pty Ltd must be able to adapt and react to changing financial circumstances including the complex financial and contractual relationships that it has with its business suppliers.
It is not a matter for the Court to consider each and every business decision that may be made by a party as to whether it will bring financial success. Provided that a party does not engage in reckless, wanton or wilfully neglectful conduct, commercial reality is such that not every business decision will bring financial reward.
I propose to make orders that accord with the husband’s position, noting that a development on any site will likely require the consent of each of the parties and the husband’s father.
Wife’s motor vehicle
The wife’s initial position was to retain motor vehicle 1 currently in use by her.
The husband proposed that the funds of the parties held in the V Pty Ltd account be used to purchase the motor vehicle for the wife to retain.
That no longer appears to be the position of the wife. She is now prepared to return the motor vehicle but seeks $70,000 to purchase a motor vehicle of her choice. The husband resists the wife’s application but is prepared to agree to $50,000 being used to enable the wife to purchase a motor vehicle.
Whilst I am able to understand the wife’s position in respect to the retention of either her current motor vehicle or at least to have sufficient funds to replace the vehicle, there is no evidence as to the basis of a further $20,000.
The wife’s application for funds sufficient to purchase a motor vehicle is an application for partial settlement of property. I accept that the wife is not required to satisfy a threshold test that the sum as sought by her arises from a compelling need. Equally, the preferred position is that there be a single and comprehensive hearing to determine property settlement as between the parties. For that reason there must be some basis for the order as sought by the wife. There is none. Accordingly, I consider that the wife’s application for $70,000 should be rejected. However, the sum of $50,000 as proposed by the husband should be referrable to the purchase price of the motor vehicle and there should be an additional sum made available to the wife to cover the costs of acquisition.
Personal and discretionary expenditure of the wife
As at the date of the Undertaking for interim financial arrangements, the parties agreed that the wife would remain in the former matrimonial home with the parties’ children (noting that one child only remains with the wife currently) and on that basis she would receive the sum of $2,000 per week to be paid from V Pty Ltd to the wife’s nominated ANZ Bank account provided that she would thereafter meet the costs of her housekeeping, gardening and lawn mowing, furnishings and maintenance. The husband is prepared to agree $800 per week.
The husband considers that there has been a change in the parties’ circumstances in that now both children no longer reside with the wife in the former matrimonial home.
The husband also questions the quantum of the periodic amount to be paid to the wife in circumstances where all costs are being met in respect of the former matrimonial home (excluding housekeeping, gardening, furnishings, maintenance and pool maintenance) and that the wife will not be called upon to contribute to the children’s curricular and extra-curricular activities.
The husband refers to the wife’s Financial Statement wherein the wife contends that her total average weekly expenditure is $2,087 and thereafter the husband seeks to challenge the extent of the wife’s purported expenditure.
The wife’s argument in support of the sum of $2,000 per week is based upon the husband’s Undertaking and what she considers is the unfair ability of the husband to withdraw significant sums of money from the V Pty Ltd account and his ability to control the valuable assets of the parties.
It is not the wife’s position that the order she seeks is by way of spousal maintenance. There is no suggestion that the wife’s claim should be limited in circumstances where the husband considers she has a capacity to engage in paid work.
The parties have each filed Financial Statements. I consider that the financial information disclosed is evidence that is relevant to the determination of the amount that should be made available to the wife.
I also accept that the parties’ standard of living should be considered as high. During the course of the relationship the parties and each of them had access to significant funds and enjoyed holidays, water sports, generous accommodation and the ability to purchase clothing, and engage in personal grooming.
I note the wife’s contention that the expenditure as set out in her Financial Statement should be of limited value only in determining the dispute between the parties.
The husband’s Financial Statement filed 2 November 2020 discloses a salary of $1,800 per week and income from G Pty Ltd of $1,780 with a total average weekly income of $3,686. There is a small fringe benefit arising from motor vehicle expenses paid by Crawford Pty Ltd in the sum of $88.
At first consideration there appears to be nothing remarkable in respect of the Part G fixed expenses of the husband. The total of his Part N discretionary expenses is $1,278 which is comprised of the husband’s personal expenses of $481 and $797 for the children.
I am uncertain as to the basis upon which the husband records gifts in favour of the children of $48 and other children’s costs totalling $184 although it may include occupational therapy expenses.
The wife’s Financial Statement filed 7 December 2020 discloses her current income in the sum of $2,366 which includes a Job Seeker payment of $310, a Family Tax Benefit payment of $56 and drawings from V Pty Ltd in the sum of $2,000.
I am uncertain as to the basis upon which the wife continues to receive a Job Seeker benefit, however the husband’s stated position is that over and above the amount that the Court considers should be distributed to the wife, she is able to supplement her expenses by any income received from employment and by necessary implication the extent of any Job Seeker payment.
The most significant Part G fixed expenditure item is the sum of $536 per week being the purported minimum payment in respect of the wife’s ANZ credit card. Given that the parties have agreed to withdraw from the V Pty Ltd account a sum sufficient to discharge the wife’s outstanding credit card, I propose to exclude the minimum payment as recorded.
Of the total sum for Part N discretionary expenses of $1,633, $493 are expenses that relate to the children. That amount is significantly less than the sum of $797 claimed by the husband for children’s expenses. On that basis I do not propose to take an unnecessarily detailed forensic approach and propose to do no more than reduce some of the wife’s personal expenses.
The only evidence that I have is as contained in the Financial Statements of the parties. I do not propose to be unnecessarily prescriptive in respect of the expenditure items as detailed by the wife but consider that there should be some reduction in the cleaning of the house and pool in circumstances where I propose to order that pool maintenance and house repairs be the subject of payment by V Pty Ltd.
I propose to reduce the item described as “other necessary commitments” by $60 and by $100 in respect of house and pool cleaning together with $100 for house repairs.
Accordingly, I propose to make an order that the wife receive drawings from the V Pty Ltd account in the sum of $1,373.
I make orders as appear at the commencement of these reasons.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 29 January 2021
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Commercial Law
Legal Concepts
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Injunction
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Consent
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Jurisdiction
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Remedies
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Discovery
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