Darcy and Darcy

[2008] FamCA 8

FAMILY COURT OF AUSTRALIA

DARCY & DARCY [2008] FamCA 8

FAMILY LAW – INTERIM – Property and child support issues

Child Support (Assessment) Act1989 (Cth)
Family Law Act1975 (Cth)

APPLICANT: Mr DARCY

RESPONDENT: Mrs DARCY

FILE NUMBER: MLF 3110 of 2005

DATE DELIVERED: 11 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 10 & 11 JANUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR PINNER

SOLICITOR FOR THE RESPONDENT: SCOTT FAMILY LAW

Orders

1. That the further hearing of all matters be adjourned to a date to be fixed for the purposes of judgment and that judgment otherwise be reserved.

2. That the orders of the Honourable Justice Brown made 30 March 2007 as amended by me on 9 November 2007 remain in full force and effect.

3. That the husband and wife each be entitled to draw $30,000 from the first available proceeds of the sale of any of the properties referred to in the orders of the Honourable Justice Brown, such sums to be taken into account upon the final distribution and interim property settlement.

4. That the husband lodge with the Australian Taxation Office, his income tax returns as follows:

   (a)     the year 2005/2006 by 31 January 2008; and

   (b)     the year 2006/2007 by 29 February 2008.

5. That in anticipation of the settlement of the sale of the T property and Queensland properties, the wife nominate an accountant of her choice but at the joint expense of the husband and the wife, to calculate the capital gains tax liability of the husband and the husband do all things necessary to cooperate with that accountant to give effect to this order.

6. That within 14 days after the last of the settlements of the sale of the Queensland and T properties, each party provide to my Associate in writing the final details of all monies available for distribution to enable the final orders to be then made.

7. THAT BY CONSENT from the first available proceeds of sale of the said properties, the sum then outstanding to M School, B, be paid to discharge the arrears which as at this date are approximately $14,000.

8. THAT BY CONSENT of the parties, there be a departure from any administrative assessment of child support for the period from 1 February 2008 until 31 January 2011 and that during that period, the husband pay periodic child support in the sum of $1000 per calendar month with the first payment to be made on 1 February 2008 to a bank account nominated by the wife. 

9. That the payments referred to in paragraph 8 hereof shall amount to 100 per cent of the liability of the husband in respect of the child support for the period referred to.

10. That the wife forthwith upon receipt of this order, serve upon the Registrar in Child Support, a copy of the order.

11. That the parties have liberty to apply on short notice in respect of:

    (a)     the child support issue; and

    (b)     the details of the sale of the T property and Queensland properties.

12. That in the event that the parties are unable to agree on the nomination of a practitioner to undertake the conveyancing work associated with sale of the T property within 7 days of this day, each party shall provide to Registrar Kaur, three names of their chosen appointees who must be willing to undertake the task and have nominated professional fees, and thereafter, pursuant to Rule 15.46(c) of the Family Law Rules 2004, Registrar Kaur shall nominate and appoint such conveyancer as an expert and thereafter that expert shall conduct the conveyancing in respect of the T property at the joint expense of the parties. In the event that M are not the appointed conveyancers, their fees be paid from the ultimate proceeds as a joint expense of the parties provided the costs and disbursements incurred are reasonable and the certificates required for the s 32 statement can be used.

13. BY CONSENT from the proceeds of the sale of all of the Queensland and T properties, a sum of $36,000 shall be paid to the wife to be held by her upon trust as security for the payments of the child support referred to in paragraph 8 hereof such sum to be paid from the ultimate entitlement of the husband under the final orders proposed.

14. That the wife place the said $36,000 in an interest bearing account in which she is nominated as trustee.

15. That should the husband fail to meet the obligations to pay any one payment by 4.00pm on it due date each month, the wife be at liberty to draw that sum of $1000 only to satisfy the husband’s obligation to pay that month’s child support (noting that in respect of the period between 1 February 2008 and the creation of the trust, any arrears during that period shall be taken from the trust as a single payment).

16. That the wife be restrained from otherwise accessing, charging or otherwise using the said trust funds for any purpose other than the payment of child support as and when it falls due.

17. That the wife provide to the husband every three months, a copy of the bank statements whether printed from the internet or by the bank showing any activity during the preceding three months and the balance then remaining.

18. That upon the completion of the 36 months commencing 1 February 2008, the wife do all things necessary to draw a cheque for the balance of the said trust account and immediately pay it to the husband.

19. THAT BY CONSENT on T’s birthday in each year, it being in the school holidays, the parent with whom T is not spending the time shall have care of him from 12 noon until 4.00pm on that day.

20. THAT BY CONSENT, each party provide authority to all schools and health professionals with directions to provide to the other parent all details as they may request about the education, health and welfare of the children. 

21. THAT BY CONSENT, each party keep the other informed of all details concerning schools and health professionals that the children attend to give effect to paragraph 20 hereof.

22. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Darcy & Darcy.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3110  of 2005

Mr Darcy

Applicant

And

Mrs Darcy

Respondent

REASONS FOR JUDGMENT

1. This is an interim judgment in a property and child support issues.  These reasons relate to the child support issue.  I have reserved judgment in respect of the property matter to be determined when the proceeds of the sale of three properties are in case form.  I have heard the submissions of all parties in relation to what should otherwise be done.

2. In final submissions, the parties reached agreement on the child support issue.  Both parties have consented to an arrangement under which for the ensuing three years commencing 1 February 2008, the husband will pay child support in the total sum of $1000 per calendar month.  As security for the payment of that sum, from the proceeds of the sale of the real properties, an amount of $36,000 will be set aside with the wife as trustee to cover any payment not made on time by the husband. 

3. These reasons relate to the fact that the parties have made an agreement in respect of the departure from the administrative formula. 

4. Before turning to those issues, there is a significant dispute between the parties about the attendance by their 8 year old daughter at M private school in B.  There was evidence before me that the parties have had disputes about what sums are credited against child support obligations and I have indicated to them that child support relates to the feeding and clothing of the children rather than private school fees and that is clearly what I intend under the orders that I have made this day.

5. Before me, there was scanty evidence in relation to the husband’s financial position but I am satisfied that on the documents provided by the wife and upon which she was cross-examined by the husband, his financial position is such that when he was an employee professional up until 2005, he was earning somewhat in excess of $100,000.  Since that time however, the picture is nowhere near as clear.  In one of the exhibits of the wife to her affidavit in relation to financial matters, she pointed to the fact that his income was about $56,000 and in a statement of financial circumstances filed in March 2007, he deposed to the fact that he was earning about $63,000 by way of income from his practice.  He was earning in excess of that but that was as a result of collecting the rent from the commercial properties which are the subject of the property orders and have been sold.

6. Section 118 of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) says that a court may make a variety of orders under the Division. However, by s 118(3), the court must give reasons for making an order if the carer entitled to child support concerned is in receipt of an income-tested pension, allowance or benefit. That is clearly the situation here as the wife deposes to her income situation being predominantly from the Centrelink source.

7. In addition, this is an order made by consent of the parties. 

8. Under s 117(1) of the Act, the Court may make an order in the special circumstances of a case where it is satisfied that one of the grounds for departure exists and that it would be just and equitable in relation to the children as well as the payer and payee but also that it is otherwise proper.

9. The wife points to the fact that the current assessment is inadequate because it is based upon an income of $25,000 per annum which is not only inconsistent with the husband’s own evidence but also the understanding of the wife as to his lifestyle and past earning capacity.  To allow that situation to continue would be unjust and inequitable having regard to what I accept is the husband’s financial situation as I have roughly detailed it above.  It is important to note that the information is scanty because of the fact that the husband failed to provide the affidavit material he was so ordered and as a consequence, his role in the property application was limited to cross-examination of the wife.  Needless to say, I am satisfied that the picture that has emerged is a clear indication of what his financial position certainly it.  If that is not right, the problem will no doubt be exposed in three years time.

10. I am satisfied therefore that there is a ground for departure. 

11. I am satisfied also that on the material I have read, it is just and equitable for the parties as well as for the children for the child support to be fixed at $1000 per calendar month as that will provide some of the basic necessities for the children.  Under the orders for property settlement which I propose to make in due course, the wife will end up with a home which will be encumbered to the extent of $80,000.  She does have some working capacity but it seems to me that in the circumstances, $1000 per month on a regular basis secured by the trust funds that I have nominated, is just and equitable regarding all parties and the children.

12. The third issue obviously related to the protection of the public purse and I have to be satisfied that it is proper to make that order.  Having regard to the extraordinary debate that has gone on between the parties over the last twelve months about the financial positions and the fact that the wife is not able to produce any other material to show that the purported income that I have mentioned is wrong, I am satisfied to say that it is proper that the amount be fixed in the sum of $1000 per month vis a vis the tax payers of Australia.

13. Under those circumstances I am satisfied to say that it is appropriate to make the order.

I certify that the preceding Thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 January 2008