Dirk and Dirk

[2011] FamCA 1032

FAMILY COURT OF AUSTRALIA

DIRK & DIRK [2011] FamCA 1032

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Husband’s ability to pay – where the Husband’s income has been reduced – where the Husband has been able to borrow from the company in the past – where the Husband is sole guarantor of the company’s loans – where the Husband’s solicitors are also solicitors for the company – found that the Husband is able to pay spousal maintenance by borrowing money or by causing his income to be increased – Husband to pay spousal maintenance of $350 per week.

APPLICANT: Ms Dirk

RESPONDENT: Mr Dirk

FILE NUMBER: SYC 4542 of 2011

DATE DELIVERED: 19 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 19 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bell

SOLICITOR FOR THE APPLICANT: KR Barnes & Co

COUNSEL FOR THE RESPONDENT: Mr Peattie

SOLICITOR FOR THE RESPONDENT: Catalyst Legal

Orders

IT IS ORDERED THAT

1. That the husband shall forthwith provide for the use of the wife a 6 cylinder station wagon 2007 model upon which he shall pay as they fall due the registration, the green slip insurance, the comprehensive insurance and reasonable maintenance.

2. The husband pay as and when they fall due the mortgage on the former matrimonial home the Council and Water rates, the building insurance and the medical benefit fund contribution.

3. That the husband pay by way of interim spousal maintenance the sum of $350 per week.

4. That the matter is otherwise stood over to the Conciliation Conference on 13 February 2012 at 9.30 am.

5. That there be liberty to apply to the Docket Registrar.

6. That the costs of both parties be reserved.

BY CONSENT IT IS ORDERED

1. That the husband do all acts and things and use his best endeavours to secure from Dirk Pty Ltd by way of a loan to the parties sufficient funds to pay the cost of valuing the parties interests in Dirk Pty Ltd, Dirk Family Superannuation Pty Ltd and Dirk Superannuation Fund.

2. That upon finalisation of proceedings between the parties for property, the husband and wife shall pay equally between them any monies advanced by Dirk Pty Ltd in payment of the valuation referred to in the previous order from their respective shares of matrimonial property to Dirk Pty Ltd.

3. That should the husband be unable to procure payment or that costs referred to in respect to the valuation referred to herein, the parties shall have liberty to relist the matter on short notice.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 4542 of 2011

Ms Dirk

Applicant

And

Mr Dirk

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court arise out of an application for spousal maintenance filed by the wife on 11 November 2011.  Her expenses set out in her financial statement were not seriously challenged, perhaps because she being the primary carer of the children claims weekly expenses of $1228 whereas the husband, who has less time with the children, claims weekly expenses of $1085.  The real issue in these proceedings is the husband’s ability to pay.

2. The husband filed a financial statement on 26 September 2011.  In that statement, he set out an income of $3000 per week and moneys in banks totalling $28,745.50.  In an amended financial statement filed today, the husband says that his income has been reduced to $754 a week although in an affidavit filed today at paragraph 6, he deposes to drawing a total of $2000 a week, the balance inferentially being a loan from the company which employs him.  The husband is a one-third shareholder in the company and his parents are owners of the other two-thirds of the shares.  In the documents filed today, the husband’s savings have been reduced to $2221, although there is no explanation at all for the disappearance of some $26,500. 

3. It is suggested on behalf of the wife that the reduction in the husband’s income is a device by the husband and his parents to diminish the appearance of his capacity to pay.  That is not an argument that I need to determine for the purpose of this application. 

4. I am entitled to take into account when determining what amount the husband can pay by way of maintenance for the wife, the fact that he has in the past been able to borrow $486,000 from the company, I am entitled to take into account the fact that although he says he is no longer a director of the company, he is in fact the sole guarantor of all of the company’s loans of $1,105,000.  And although it is asserted on behalf of the husband that he is in some way in conflict with his parents and with the company, I am entitled to take into account the fact that the solicitors for the husband are also the solicitors for the company.  I have, therefore, determined that the husband is able, whether by borrowing or by causing his income to be increased, to pay the order which I propose to make.

5. One of the aspects of the wife’s application has been her assertion that she needs a motor vehicle which is capable of towing a caravan which she uses for holidays with the children.  She asks the Court to make an order that the husband provide her with a four-wheel drive motor vehicle capable of towing the caravan and that it be fully maintained by the husband.  As Mr Peattie pointed out, in circumstances where there is only one income to support the family of the husband and the wife, neither of them will be able to maintain the standard of living which they previously maintained.  Mr Peattie, for the husband, offers on behalf of the husband to provide to the wife a six-cylinder station wagon, to pay registration, reasonable maintenance and insurance.

6. I propose to make that order.  Pursuant to the orders that I will make, the husband will continue to pay the mortgage on the former matrimonial home.  He will pay the rates, he will pay the building insurance and the medical benefits contribution for the family.  Those amounts total $966 a week.  The child support assessment is $154 a week.  The total of those amounts, therefore, is $1120, which the husband will pay directly for the benefit of the wife and the children.

7. The wife’s expenses as I calculate them are as follows:  Food $100, household supplies, half of the amount, $25, electricity, half of the amount, $37, telephone $50, petrol, half of the amount, $45, clothes $100, medical expenses excluding medical benefits payments, $45, entertainment, $50, holidays, $50, pharmacy, $15, books, $10, gifts, $10, hair dressing and toiletries, $35 and half of the FOXTEL, $12.  That totals $584.  The wife herself has an income from exertion of $250 and, therefore, I propose to make an order that the husband pay spousal maintenance in the sum of $350 per week.

8. The parties have reached agreement in relation to machinery orders for the valuation of the corporate interests.  I mark the minute of order exhibit A, and I make orders in accordance with the minute.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 19 December 2011.

Associate: 

Date:  31 January 2012