DUCLOS & DUCLOS

[2015] FamCA 1100

FAMILY COURT OF AUSTRALIA

DUCLOS & DUCLOS [2015] FamCA 1100

FAMILY LAW – PARENTING – Interim arrangements – Where the wife seeks an interim order for sole parental responsibility as to education and health – Where the husband opposes that application – Where it is in the best interests of the children for an order for equal shared parental responsibility to be made on an interim basis – Where the husband seeks to spend more time with the children and increase that time from two nights a fortnight to five nights a fortnight – Where the husband seeks an order that the children spent half each school holiday period with each parent – Where neither party submitted there was family violence during the marriage – Where the children have good relationships with both parents but expressed a desire to see more of their father – Where  the wife raises concern with the adequacy of the father’s supervision and ability to make sensible judgment in relation to the children’s safety – Where it is in the children’s best interests and reasonably practicable for the children to spend five nights a fortnight with the father – Where orders are made for time during school holidays.

FAMILY LAW – PROPERTY – Interim – Spouse maintenance – Where the parties seeks a variation of current orders – Where the wife has secured new employment on a temporary basis – Where the wife’s expenses have increased since the making of the order and she seeks an increase in the amount she is paid weekly – Where the husband seeks the order be discharged – Where the husband has control of all matrimonial assets – Where both parties’ applications are dismissed.  

Family Law Act 1975 (Cth)

APPLICANT: Ms Duclos

RESPONDENT: Mr Duclos

FILE NUMBER: SYC 415 of 2015

DATE DELIVERED: 10 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton, SC

SOLICITOR FOR THE APPLICANT: Newnhams Solicitors

COUNSEL FOR THE RESPONDENT: Ms Falloon

SOLICITOR FOR THE RESPONDENT: Sexton Family Law

Orders

Parenting

Pending further order

1. The parties have equal shared parental responsibility for the two children B born in 2007 and C born in 2009 (“the children”).

2. The children live with the wife.

3. The children spend time with the husband during school term as follows:

   3.1.Each alternate weekend from their after school activity or if there is no after school activity then 6.00 pm Friday until the commencement of school Monday morning;

   3.2.Each Wednesday from after school until the commencement of school the following morning.

4. The children spend equal time with each parent during school holidays by agreement, or failing agreement, with the husband as follows:

   4.1.During the end of Term 4 2015 Christmas school holiday periods:

   4.1.1.From 6.00 pm 18 December 2015 to 9.00 am 26 December

   4.1.2.From 6pm 29 December 2015 to 5pm 10 January 2016

   4.2.From 2016 for one half of the school holidays at the ends of terms 1, 2, 3 and 4 as agreed between the parties and failing agreement for the second half of the school holidays in 2016 and every second year thereafter and the first half of the school holidays in 2017 and every second year thereafter.

5. Unless the parties agree and subject to any future court order, the children should be with their mother from 12.00 pm 24 December 2016 to 9.00 am 26 December 2016.

6. The parent with whom the children are living, in accordance with the orders, will do all acts and things to facilitate telephone calls at any reasonable time from the parent with whom the children are not residing at any given time as agreed or failing agreement, at 6.00 pm every second day.

7. If either parent intends to travel with the children outside of New South Wales, the travelling parent will notify the other parent of:

   7.1.The dates of travel; and

   7.2.The destination,

   At least 14 days prior to intended travel.

8. If either parent intends to travel with the children outside of Australia, the travelling parent will give at least 28 days’ notice to the other parent of:

   8.1.The dates of travel; and

   8.2.The destination.

9. If a parent who intends to travel does not possess the passports of the children, the other parent must provide the children’s passports to the travelling parent within 14 days of request. 

10. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), 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.

Property

1. The husband’s Application in a Case filed 9 September 2015 is dismissed.

2. The wife’s Response by way of order 3 sought in her Response to an Application in a Case of 17 November 2015 is dismissed.

3. It is noted that the husband has undertaken to forthwith pay or cause to be paid $37,096.32 to the Australian Taxation Office in compliance with order 4 dated 27 April 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duclos & Duclos 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 415  of 2015

Ms Duclos

Applicant

And

Mr Duclos

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Both the husband and wife made interim applications in relation to parenting orders and applications in relation to varying the current orders in respect of periodic spousal support.

2. There are no parenting orders currently in place.

ADJOURNMENT APPLICATION BY THE HUSBAND

1. This matter was first mentioned in a duty list at 10.00 am. The hearing of the matter commenced at about 12.07pm and subject to some interruptions, was not concluded until after 5.00 pm. The husband sought by way of a financial order a discharge of an order made in the wife’s favour on 27 April 2015 for periodic payments. That application had been filed by the husband on 9 September 2015.  The wife had filed a response and supporting evidence on 17 November 2015 (which was on the Tuesday of the week before the hearing).

2. The wife in her response to the husband’s application in a case for financial orders sought a dismissal of the husband’s application, an order for the husband to pay arrears under the order, an order for variation of the order by increasing it by $200 per week, and an order requiring the husband to comply with a previous order for the payment of an amount of approximately $37,000 to the Australian Tax Office.

3. Both counsel had prepared a case outline in relation to both the parenting and the property matters. Each case outline summarised the arguments by both the parties in relation to all applications. Senior counsel for the wife tendered some additional documents and both counsel made supplementary oral submissions. At the end of her submissions, counsel for the husband made an adjournment application in respect of the whole of the interim financial proceedings on the basis that the husband had not been afforded procedural fairness of having an opportunity to respond to the material that the wife had filed on 17 November 2015. The timing of this application was, to be kind, unusual, given that it was made in virtually the last breath of oral submissions by counsel for the husband at around 5.00 pm.

4. It was in part based upon an assertion that there were factual errors that the husband could demonstrate in relation to the schedule of payments which the wife had prepared at page 128 of the affidavit filed 17 November 2015 (10 pages without annexures). In relation to that particular issue, given that both parties had experienced lawyers and that this matter should be a factual matter that could be resolved by reference to the relevant banking records, I indicated that I would make a direction that that exercise be undertaken prior to me making any ruling in relation to arrears.

5. I otherwise dismissed the oral application by the husband for an adjournment for the following reasons:

   7.1.The extreme lateness of the application given that the hearing had all but concluded at the time the application was made;

   7.2.That the husband had the wife’s material in sufficient time to consider it;

   7.3.That the husband had prepared a written case outline document which set out in two and a half pages the dot points of the husband’s submissions.

APPLICATIONS

1. The wife seeks an interim order for sole parental responsibility as to education and health, that the children live with her, and that the current regime as to parenting during the school term continue whereby the children spend alternate weekends with the husband from Fridays until Sundays and for periods during school holidays.

2. The wife is offering 8-10 nights during each school term holidays.

3. The wife seeks that the children be transported only in private vehicles and notification given 7 days ahead of the children travelling outside the Sydney metropolitan area. The wife also wishes school term holiday time to be conditional upon the husband not working during those periods.

4. An issue in relation to where the children would continue at school next year was resolved by the husband indicating that he would agree that they would continue at their current school, D School. 

5. The husband’s application to take the children for a holiday to Country E between 30 December 2015 and 10 January 2016 was determined by way of consent orders made 23 September 2015.

6. The husband opposes the wife’s interim order for sole parental responsibility in relation to education and health and seeks an order for equal shared parental responsibility.

7. The husband seeks that the children live with him during school terms in alternate weeks from 6.30pm Friday until 8.30am on Monday and in the alternative week, from Saturday 12 noon until 7.00 pm. In addition, he wishes to have the children overnight every Wednesday night from after school until 8.30am on Thursday (the husband’s proposal during school term on an interim basis is to move from two nights a fortnight to five nights a fortnight and from having the children on three separate days a fortnight to having the children on nine different days a fortnight).

8. The husband seeks an order for half school holidays. The husband proposed 14 days notice if the children were to travel outside New South Wales and 28 days notice if they travelled overseas.

9. The husband seeks that order 1 made 27 April 2015 for payments of $1,500 per week to the wife be discharged.

10. The wife asks that the husband’s application be dismissed and asks for orders increasing payments to her from $1,500 per week to $1,700 per week.

BACKGROUND

1. The husband is 49 years of age and the wife is 43 years of age. The parties commenced cohabitation in 2005, married in 2006 and separated in January 2014.

2. The wife commenced proceedings at the beginning of 2015.

3. There are two children of the marriage, B who is currently 8 years of age and in year 2 at D School and C who is 6 years of age and is in kindergarten at D School.

PARENTING

1. The competing positions in relation to the interim applications of the parties requires some preliminary consideration of the matters referred to in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”).

2. A child responsive program memorandum dated 17 September 2015 was prepared by a family consultant who met with both the parties on 2 September 2015 and with the parties and the children on 9 September 2015.

3. The current arrangements in relation to the children are that they ordinarily live with their mother at the home of the maternal grandmother and step-father. The wife works four days a week form 8.30am to 3.00 pm. The husband lives in the former matrimonial home at Suburb F. He has two other children of a previous marriage, G aged 14 years old and H aged 12 years old, who they are with him five nights each fortnight. The husband is assisted in caring for the children by a nanny.

4. The current informal arrangement is that the children spend every second week from Friday after school until Monday before school and half school holidays with their father. When interviewed by the family consultant in September this year, the wife sought that those arrangements not be disturbed but before me she now seeks that the children’s time with their father every second weekend be reduced so that they return to her 6.00 pm on Sunday rather than being with their father until Monday morning.

5. The husband informed the family consultant that he would like the children to live in an equal time arrangement, but given the wife would not agree to that, and considering his work schedule, he indicated he would be seeking that the time that the children spend with him be increased to a block period of five days each fortnight from after school Wednesday until before school Monday. That is not the interim application that he is now seeking before me.

6. At the time the parents saw the family consultant, the husband was seeking to withdraw the children from D School and re-enrol the children in a State school for their primary schooling and return them to the private system for years 7 to 12. The husband no longer maintained that position before me.

7. Whilst the parties were together, they adopted more traditional roles, with the wife being the primary care giver of the children in the home and the husband out working. There is no issue that the wife has provide care and attention to the upbringing of the children as their primary care giver and they have developed very well according to their childhood milestones (notwithstanding B’s physical challenges).

8. B has been diagnosed with the physical challenge of hypermobility. He attends an occupational therapist and there is advice that he should not engage in particular activities and sport.

9. Each parent told the family consultant that physical threats or violence were not a feature of their relationship, but both agreed that there was mutual high conflict arguments occurring on a weekly and sometimes a daily basis during their relationship. The wife told the family consultant that the husband was verbally, emotionally and financially abusive of her. The wife expressed the view that the husband took advantage of her as G and H’s step-mother, “which was a source of her feeling exhausted, undervalued and which created much tension in the marriage”.

10. Both parents described B as a sensitive, caring and academically able child who despite his difficulties with coordination and mobility has a positive approach to physical activity, especially swimming and going to school and making friends. C has an easy personality and is popular and academically able. The family consultant said that during the interviews the children were articulate and impressed as generally relaxed, uninhibited and unguarded in their conversations.

11. B described a positive relationship with both his parents. He described feeling close to and like his mother, and encouraged by, and comfortable with his father. He told the family consultant that he feels sad “because I barely see Dad” and that his relationship with his father had become less close “like he’s become my step-dad”. B said that he now feels closer to his mother’s step-father, Mr I, than his father and expressed the view that he would like to see more of his father because to do so would feel like “he’s more like dad”.

12. B is aware of the conflict between the parties. He has no memory of his parents ever “getting on”. He is also worried because sometimes his mother “gets sad” if she knows he has “nice times with dad”.

13. C also has recollections of his parents arguing when they were together and thought that they may be arguing about him on occasions. C is clearly aware of the continuing conflict between his parents and hears the way that they both talk to one another on the phone.

14. C has good relationships with both his parents and expressed the view to the family consultant that he misses his father “a lot” and sometimes starts to forget him when he has not seen him for a while. C, at the age of 5 years old, expressed the view that he would like to stay with his father more than “two days” at a time.

15. The significant risk factor identified by the family consultant is the acrimony in the co-parenting relationship that was evident during the assessment. The family consultant identified the source of that tension and stress as being the recency of the separation, the degree of arguing prior to the separation and the ongoing and unresolved financial and parenting issues. The risk to the children arises from the fact the children are fully aware of the parents’ high level of conflict.

16. The wife raised with the family consultant numerous concerns about the children spending more than two days with their father. Those concerns relate to adequacy of supervision and the husband’s ability to make sensible judgments in relation to the children’s safety. She does not believe he has the experience to care for the children for more than two days and does not have the time or skills to help them with homework and the everyday needs that arise from their routine. She complains the children return to her exhaustive and sometimes sick and that he has become a part time “fun dad”. She is critical of that aspect of his parenting style.

17. She is unconvinced that he will attend to their routines or properly use safety equipment such as helmets and car seats.

18. The husband relies upon an affidavit by his former wife, Ms J, filed 1 September 2015. His former wife is the mother of the two children G and H (the girls) who are aged 14 and 12 years old respectively and who spend five nights a fortnight with their father. The husband separated from his first wife when those children were aged 3 and 1 years old and since the date of the separation, his daughters have spent five nights a fortnight in their father’s care together with half the school holiday. The husband’s first wife indicates that because of work commitments of her husband, the girls are often at their father’s home more than five nights a fortnight. The husband’s first wife has no concerns about his ability to care for their daughters and I infer she never has had even when they were very little. She gives him a positive reference in relation to his ability to seek appropriate medical assistance when their daughters were ill and gives examples of him doing so. She speaks in positive terms about his involvement in his daughters’ extra-curricular activities and is overall very complimentary about his capacity as a parent. Her observation is that the children’s relationship with the girls is also a close one and I infer from that she would not anticipate any difficulty for the children being in the husband’s household at times when the girls are also in the husband’s household.

19. The husband expressed the fear to the family consultant that he was “losing touch” with the children. The husband has a senior position in his work place and asserted that he had flexibility to be available for the children during the week but on the other hand said that he had a difficulty in December leading up to 18 December 2015 in accommodating an arrangement whereby the children would be with him for an extended period of time during school holidays.

20. The husband indicated to the family consultant that he was mindful about ensuring the children ate well, got enough sleep and were well rested with him. The husband rejects the notion that any difficulties that the children have on their return in terms of exhaustion and being sick arise from his care of the children. The husband has expressed the view to the family consultant that he wants to extend his role with the children beyond being a weekend “fun” dad. He wishes to develop the ability to parent the children across a range of routines and activities.

1. The wife seeks sole parental responsibility for making major decisions concerning education and health in relation to the two children.

2. Both parties acknowledge that their current relationship was characterised by ongoing tensions and arguments, although they both accepted that the overt conflict had decreased over time due to their lack of face to face contact with each other.

3. Whilst there has been conflict between the parties about medical matters (see page 82 of the wife’s affidavit), there is no evidence before me that the parties have reached a deadlock in relation to a decision about a major long term medical issue concerning the children. The family consultant opined that both parties are intelligent enough and have sufficient reflective capacity and skills to understand how destructive it is for their children’s future psychological wellbeing for them to witness a highly conflictual co-parenting relationship.

4. Senior counsel for the wife asserted that family violence existed in this case as a result of aggression and intimidation by the husband towards the wife. No notice of risk has been filed. Senior counsel for the wife pointed to [22] to [25] of the wife’s affidavit in support of his submission. The complaint in [22] is the husband did not take up a proposal for more time with the children when the wife offered it. The complaint in [23](a) is the husband leaving the children in the care of a friend whilst he went out on a Saturday night when the children were in his care. Paragraph [23](b) alleges that the children climbed on the top of the roof of a motor vehicle and caused some damage to it. Paragraph [24] complains the children were allowed to climb onto the platform in a tree which was built by the husband five metres off the ground. The wife told the husband that she would call the police if he did not take it down and he then subsequently took it down. Paragraph [25] alleges that the husband has allowed the children to watch inappropriately classified movies (classification “M”) and has put the children to bed “too late”. Nothing in the paragraphs referred to could remotely be supportive of the notion that family violence has been perpetrated by the husband against the wife nor even that he has adopted an intimidating or aggressive approach towards the wife.

5. There is insufficient evidence before me on an interim basis to find that family violence existed in the relationship between the parties.

6. The presumption of equal shared parental responsibility therefore applies.

7. Senior counsel for the wife emphasised the effect that the high conflict between the parties might be having on the children and the fact that the current incapacity of the parties to operate flexibly with one another and communicate in a businesslike manner with one another was a contra-indicator to both orders for equal shared parental responsibility and substantial and significant time. Senior counsel for the wife submitted that this was more than just a case where there was different parenting styles.

8. I find that notwithstanding the heightened level of parental conflict that currently exists, it would be premature to decide that it is not in the best interests of the children for an order for equal shared parental responsibility to be made on an interim basis.

9. Given that an order for equal shared parental responsibility will be made on an equal basis, then the provisions of s 65DAA of the Act are enlivened.

10. The husband does not suggest that on an interim basis an equal time order should be made, but does press for an order for substantial and significant time with the children.

11. The wife complains about the husband’s lack of supervision. He refers to [23] and [24], which paragraphs do not evidence a lack of supervision. He further refers to [25] to [27]. The only significant complaint is in [27] where the wife says that in November 2014 the children were on a camping trip with their father and C got poked in the eye with a stick and burnt with a flaming stick on the back of his leg and the wife alleges those injuries were left untreated, and that the husband did not mention the injuries to her when the children were returned. The latter is consistent with the current difficulties in the conflict between the parents. The former does not necessarily indicate a lack of supervision but it is of concern. The wife did end up taking C to emergency for an infected scratched cornea (see [29]). I take into account that incident was over a year ago and that no complaint has been made that the children have been injured in the husband’s care since.

12. The husband told the family consultant that he agreed to and will place the children’s safety as a priority when they are with him, including arranging his work schedule to ensure that he can supervise them. He also stated that he will ensure the use of safety equipment such as helmets and car seats. The wife has received the assistance of an experienced psychologist, Mr K, and although the parties do not seek any order in relation to it, I note that the family consultant recommends that the parents may benefit from counselling either as individuals or as a parenting couple, about how to minimise disagreements with each other and maximise compromise in their decisions around B and C.

13. The husband’s proposal to have the children each weekend gives the wife no recreation time with them on weekends and that form of order as sought by the husband is not in the children’s best interests.

14. The wife highlights the need for B to have a consistent and regular sleep routine (at [66]). I have evidence that the husband is mindful of the need for the children to be well rested and although I accept the wife has a concern that B is not kept in the proper sleep routine at his father’s home, I am unsatisfied on an interim basis that that concern is well-founded.

15. Senior counsel for the wife also alluded to the fact that extra-curricular activities can change and the children having time with their father mid-week overnight might become problematic depending on those extra-curricular activities. I have no evidence that would allow me to place any weight upon that submission.

16. There is no reason at all in my view to disturb the current alternate weekend arrangement which has the advantage of, at least on a Monday, the children going directly to school from their father’s home.

17. It is in the children’s best interests and reasonably practicable for the children to be with their father at least five nights a fortnight and the husband’s proposal of each week from after school on Wednesday until 8.30am on Thursday gives the children that amount of time with their father, This matter was dealt with in a busy duty list. Had I had time I would have suggested to the parties as an alternate proposal from after school Wednesday to before school Friday in the off week and the parties might like to consider that as an arrangement which they might agree to as an alternate to the order I shall make. It would mean the children were moving between the two households less frequently on a fortnightly basis, but I do not intend to make an order in that regard given that neither party were given an opportunity to make any comment in respect of that alternate arrangement.

Christmas 2015/January 2016

1. The parents currently cannot agree on the configuration of time that the children will be with them during the December 2015/January 2016 school holidays. The wife seems to make a proposal which would have the children moving between the parents on about ten occasions.

2. The order that the wife seeks is set out in order 5 of annexure A to the wife’s case outline document.

3. The husband’s proposal is set out in order 4 of the orders attached to his case summary.

4. Both parents have family functions scheduled for the afternoon of Christmas Day, 2015.

5. The wife in her affidavit indicates that there was a negotiated agreement for Christmas holiday period during 2014/2015. The children spent the whole of Christmas Day 2014 with their mother, having 26 December 2014 to 2 January 2015 with their father.

6. The husband says that December is ordinarily a busy month for him and that he expects to be busy in December this year with his work commitments up until 18 December 2015. For that reason he is seeking that the children be with him from 18 December 2015 to 26 December 2015. This is in circumstances where there is already an agreement in place that the children will be with their father from 29 December 2015 to 10 January 2016.

7. The wife points out that if the husband’s orders are made, the children will be with their father for 21 out of 24 nights.

8. Whilst I accept that the wife has concerns about the husband’s ability to supervise the children, given their age, the fact that the children are effectively with their father for a block period of three weeks, albeit with a break of three days in the middle to be back with their mother, is not in my view an excessive period of time during long school holidays.

9. Given what happened at Christmas last year, the husband’s evidence about his work commitments and the lack of weight I put on the wife’s submission in respect of the extended period of time, I find the children should be with their father this year and that the husband’s proposals are to be preferred in the children’s best interests.

10. I note I have not made any order in relation to Christmas school holidays in 2016 as requested, in the hope and expectation that the parents will heed the recommendation of the family consultant and seek to improve their parenting relationship with professional assistance. If the parties are unable to agree, further court intervention may be necessary next year if the matter has not resolved or been reached in the list for final determination. By way of a partial order however for next Christmas school holidays the children are to be with their mother from noon Christmas Eve to 9.00 am Boxing Day.

11. The next birthday of a child is in mid 2016. I do not intend to make any orders in relation to birthdays or other special days at this point. There was no submissions made to me about those days.

12. I note that the provisions of s 65DAE of the Act provide that the parents do not need to consult on issues that are not major long terms issues when the children are spending time with them and I decline to make orders as sought by the wife imposing conditions on the husband when the children are with him.

13. Both parties sought orders in relation to notice if the other party is travelling with the children away from Sydney. No submissions were made in respect of those orders. The orders sought are different. I will make the orders in accordance with the orders as sought by the husband as they seem more appropriate and give a better period of notice.

SPOUSAL MAINTENANCE

1. The husband seeks a variation of the current orders.

2. Senior counsel for the wife in a busy duty list decided to run a technical argument asserting that the order that the husband sought to vary was not a spousal maintenance order but rather a property order and therefore an application based on s 83 of the Act should be summarily dismissed and that there was no sufficiently established ground for an alternate application under s 79A of the Act. Counsel for the husband did not seek to amend the application and relied on s 83 of the Act.

3. The notion that the order that was made was a property order seemed to be without any basis for the following reasons:

   73.1.Whilst the order was that the wife be paid by way of trust distributions, the income of the trust from time to time was income associated with the husband’s personal exertion as a partner in his law firm;

   73.2.The payments to the wife are regular periodic fortnightly payments;

   73.3.The wife in her own affidavit refers to this order as a spousal maintenance order;

   73.4.The application upon which the consent order was made was a spousal maintenance application.

4. Notwithstanding these matters, senior counsel for the wife did not seem to resile from the submission that he made. The order looks like a spousal maintenance order and I find that it is.

5. The changed circumstance which the husband asserts is that since the consent order was made, the wife has obtained paid employment.

6. The wife’s employment is a one year contract. It is a temporary position, filling in for a person who has taken maternity leave.

7. Section 83 of the Act allows for modification of spousal maintenance orders if, since the order was made, the circumstances of a person for whose benefit the order was made have so changed, so as to justify the court so doing and also in a case where the order was made by consent (as it was in this case) that the amount ordered to be paid is not proper or adequate. In doing so, the court shall have regard to the provisions of s 72 and s 75 of the Act.

8. It is the husband’s case that pursuant to s 72, the wife can no longer assert that she is unable to support herself adequately without the benefit of the order.

9. The wife’s evidence about her current income is contained in [45] to [49] of the longer affidavit filed 17 November 2015. The wife refers to her financial statement filed in January 2015 which set out her income at that time in the sum of $1,970 per week. The income of $1,970 was $470 payment of child support by the husband and $1,500 in accordance with the order that the husband seeks to discharge.

10. The wife gives evidence that since filing her financial statement, she has commenced work on 20 July 2015 on a contract of one year. She says that annual contract is for a salary of $73,059 which averaged on a weekly gross basis is $1,405. She asserts that her net weekly salary is $1,082 after having paid $323 tax. The wife’s total net income for the one year contract is the approximate amount of $52,000. The wife’s current weekly income is $3,052 ($1,082 + $1,970).

11. Counsel for the husband referred to the payslip that is at page 126 of the wife’s affidavit which shows earnings at $2,826.70 and submitted that this was inconsistent with the evidence the wife gives in her affidavit (on the assumption the wage slip was for a fortnight). However the wage slip rather than being for a fortnight seems to be for a month, but it is the month the wife started work (when she probably did not work the full month) so it would be unsafe to rely upon anything other than the annual salary figure on the document to draw any conclusions. That document does confirm the wife’s assertion that the annual salary is $73,059.36.

12. Counsel for the husband further submitted that the court should not accept as accurate the reworking by the wife of the weekly amount she says she requires to be able to adequately support herself. In her financial statement filed 27 January 2015, the wife estimated her weekly expenses in the sum of $3,679 but that amount was broken up as to $1,405 for the wife and $1,921 for the children.

13. In a reworking of her currently weekly expenditure at [50] of her affidavit filed 17 November 2015, the figures have now been recalibrated so that the total amount required by the wife for her weekly expenses is $3,712, being now $2,775 for herself and $937 for the children. The wife has added $500 per week for board (which I assume she asserts she is paying to her parents for them to provide accommodation for herself and the children whereas in January no charge for board was being made by her parents). There are some items that have been added which appear to be items relating to the children that have made their way into the wife’s column, being violin tuition, creating writing, occupational therapy and number works and possibly swimming (those amounts total about $400). The wife has leased a car, the leasing expenses being $190 per week and has other registration and insurance costs in relation to that motor vehicle which she previously did not have. The wife’s dry cleaning expenses have increased and the wife is now paying for child care.

14. The increase in the wife’s expenses seem to be consistent with her obtaining a new job (car lease, registration and insurance; child care and dry cleaning; and her now being in a position to pay something to the owners of the property where she is living with the children (board)). When those amounts are taken into account, there is no significant inconsistency between the expenses claimed by the wife in the January 2015 statement and those claimed by the wife in her November 2015 affidavit. Once the costs incorrectly attributed to the children in the wife’s column in her affidavit are taken out, her expenses on a weekly basis for herself are about $2,375 ($2,775 - $400). The income the wife receives from the trust combined with her current income is $2,582 ($1,500 + $1,082).

15. It would seem the wife has a $207 surplus but it is important in an interim matter to take a broad brush approach. On the wife’s evidence, she is getting $470 payment for child support but has expenses relating to the children in a weekly sum of $1,337 ($937 + $400).

16. The wife’s income will be received only for a limited period and I have no information about what her future employment prospects may be. In the context of this interim hearing, I am not prepared to find that the wife can now adequately support herself without the benefit of the original order which the husband seeks to vary.

17. Relevant to the exercise of discretion, I take into account the husband’s financial position. He currently has control of virtually all the matrimonial assets. He owns and resides in the former matrimonial home at Suburb F and has the benefit of the vast majority of the contents of Suburb F. He has control over an account which has in excess of $100,000 in cash. He drives a motor vehicle. He retains his interest in his legal partnership and the entities and loan accounts associated with that partnership. He receives, at least in the first instance, the bulk of the income that he derives which is in the order of ten times that derived by the wife.

18. The wife seeks by way of variation, an increase of $200 per week to the original consent order that was made. I am not sufficiently confident on the information that has been provided that the wife has made out a case for an increase.

19. I find it would not be proper to interfere on an interim basis with the previous interim consent order that was made and I will dismiss both parties’ applications in relation to changing that order.

20. At the hearing, the wife alleged arrears under the orders of 27 April 2015 totalling $19,460 and sought enforcement of the order. As indicated above, I ordered the lawyers for the parties to consult to attempt to reach agreement on the quantum of arrears (if any). The parties have subsequently provided a joint letter indicating the husband paid about $20,000 to the wife in respect to arrears and the wife no longer presses her application.

21. Counsel for the husband indicated that he would forthwith pay or cause to be paid $37,096.32 to the Australian Tax Office in compliance with order 4 of annexure A of the orders made 27 April 2015. I accept that undertaking and do not intend to make any further order in that regard.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 10 December 2015

Associate: 

Date:  10.12.2015