EAKINS & HIGGINS

[2017] FamCA 684

FAMILY COURT OF AUSTRALIA

EAKINS & HIGGINS [2017] FamCA 684

FAMILY LAW – CHILD SUPPORT – Where child support is not available as the children are not resident in Australia – Where the husband has ample funds to contribute to the children’s maintenance – Orders for the husband to pay $1,150 per week by way of child maintenance.


FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife has substantial savings – Where the wife is not unable to support herself – s 72 Family Law Act 1975 (Cth) – Application for spousal maintenance dismissed.

FAMILY LAW – PROPERTY – INTERIM – Where a payment to the wife of $200,000 would not be a payment that is not recoverable in the final hearing – Orders made for the husband to pay $200,000 to the wife.

FAMILY LAW – INJUNCTIONS – Interim orders made restraining the husband from disposing of properties.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) s 72

APPLICANT: Ms Eakins

RESPONDENT: Mr Higgins

FILE NUMBER: SYC 3807 of 2016

DATE DELIVERED: 6 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 5 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Millar

SOLICITOR FOR THE APPLICANT: Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: McDonell Milne Toltz Family Lawyers

Orders

IT IS ORDERED

1. That, pending further order, the husband pay maintenance for the children B born … 2008, C born … 2010 and D born … 2013, in the total sum of $1,150 per week ($383.33 per child), the first payment to be made on 8 September 2017 and thereafter weekly, payments to be made directly to the wife or as she may direct.

2. That within 28 days the husband pay to the wife the sum of $200,000 by way of interim property settlement.

3. That the wife’s application for spousal maintenance is dismissed. 

4. That the husband is restrained from selling, dealing with or otherwise encumbering the real property owned by him at E Street, Country F, G Street, Suburb H and J Street, Suburb K without giving the wife 28 days’ notice of his intention to do so.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eakins & Higgins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3807 of 2016

Ms Eakins

Applicant

And

Mr Higgins

Respondent

REASONS FOR JUDGMENT

1. Ms Eakins (“the wife”) and Mr Higgins (“the husband”) commenced co-habitation in 2004. They married in 2007. They have three children, B aged eight years, C aged six years and D aged four years.

2. When they commenced their relationship they were each in highly paid professional employment.

3. After the birth of the children, the wife was their primary carer and did not work to her full professional capacity.

4. The parties lived overseas during their relationship, primarily as a consequence of the husband’s employment.

5. They separated in June 2015. By agreement, the wife and the children then lived in Country L and the husband lived in Country F.

6. The wife proposes to move back to Australia with the children in December 2017. The husband will remain in Country F where he is in the process of selling the family home which is registered in his name.

7. The wife has made an application for interim orders for child support, spousal maintenance, interim property settlement and orders restraining the husband from disposing of property. Each of the parties has property in his or her sole control.

8. All of those orders sought by the wife are opposed by the husband although he proposes that he pay child maintenance in the sum of $3,000 per month while the children remain in Country L and he proposes interim, mutual restraining orders in relation to the disposition of property.

CHILD SUPPORT/CHILD MAINTENANCE

1. At the present time, the children are not resident in Australia. The wife lives in Country L and the husband lives in Country F. Counsel for both parties conceded that the wife cannot make an application for Child Support until she returns to Australia in December 2017.

2. In the meantime, because both the parents and the children are Australian citizens, and the Child Support (Assessment) Act 1989 (Cth) has no application, an order for child maintenance can be made. That order would remain in force only until there is an assessment of child support on the wife’s return to Australia with the children in December 2017.

3. Counsel for the wife sought, and was permitted, to amend her application to seek child maintenance.

4. It is convenient to set out here the parties’ present financial positions, such as are relevant to these applications.

5. The wife is not in employment. She is the full-time carer for the children. She has a small income from dividends of some $18 per week. She has recently received about $450,000 from the sale of a property owned by her before co‑habitation. She has shares and personal effects including small bank accounts.

6. The husband has a gross income of $9,109 per week. The excess of income over his expenses (excluding the amount he deposes he pays for the benefit of the wife and children) is almost $5,500 per week. In addition, the husband is the owner of the house in Country F, a unit in Suburb H and a property at Suburb K. Both Suburb H and Suburb K are subject to mortgages. The husband deposed to having $448,344 in the bank and investments, primarily shares in his employer company, of $352,868.

7. The wife does not have the capacity to contribute to the children’s maintenance from income.

8. The husband did not dispute that he has a capacity to pay.

9. The husband has paid the rent on the villa in Country L until the end of the year, the children’s private school fees, their medical insurance and the costs of security for their home.

10. In addition to those expenses, the wife deposed that the children’s reasonable expenses are $1,880 per week which included their school fees. There was no real challenge to the reasonableness of those expenses. The husband offered $3,000 per month by way of maintenance for the children, or $692 per week. There was no explanation for the payment of the shortfall in the children’s expenses.

11. If I have misunderstood the husband’s case, and it is his case that the wife should pay the shortfall from her $450,000 in the bank, I reject that submission.

12. The husband treated the amount held by the wife as something of a magic pudding. It was submitted on his behalf that the amount could be used to pay the wife’s reasonable living expenses, thus obviating the need for an order for spousal maintenance, and it could be used to pay her legal fees and her moving expenses, thus obviating her need for an order for interim property settlement which she sought in the sum of $200,000.

13. The husband has ample funds to contribute to the children’s maintenance and should pay their reasonable expenses which I find to be $1,150 per week.

14. I propose to make an interim order in that amount, pending the issue of a Child Support Assessment.

SPOUSAL MAINTENANCE

1. The wife sought spousal maintenance in the sum of $1,872 per week. If, as the husband contends, he pays the costs of security, her claim is reduced to $1,787.

2. The threshold test in relation to spousal maintenance is found at s 72 of the Family Law Act 1975 (Cth).

3. On behalf of the husband it was submitted that, having over $450,000 in the bank, the wife cannot contend that she is unable to support herself.

4. I accept that submission.

5. The wife’s application for spousal maintenance will be dismissed.

INTERIM PROPERTY SETTLEMENT

1. The wife seeks an order for the payment of $200,000 by way of interim property settlement. She deposed that she will need that sum to pay for her costs of moving back to Australia with the children and for her legal fees. That evidence was not challenged.

2. It is the husband’s case that the wife should receive 55 per cent of the net assets. The wife estimates those assets to be about $4,000,000. It is clear that a payment to the wife of $200,000 could not be a payment which is not recoverable in the final outcome.

3. On behalf of the husband, who has $448,344 in the bank, it was not submitted that he did not have funds to pay or that such payment would cause him hardship.

4. Rather it was submitted that the wife could use the $450,000 she has in the bank to pay her legal fees and moving expenses.

5. The wife does not need to show how she proposes to use the funds, but only that they are available and within her likely entitlement. Both of those things have been demonstrated.

6. The order for interim property settlement will be made as sought by the wife.

RESTRAINING ORDERS

1. The wife seeks orders restraining the husband from dealing with his properties in Country F, Suburb K and Suburb H. She also asks that he be restrained from drawing on his liquid assets without her prior written consent other than for the purpose of paying ordinary costs of living, paying maintenance for the children and meeting mortgage payments.

2. The husband proposes mutual restraining orders to the effect that each party must give 30 days’ notice of his or her intention to deal with property in excess of $200,000.

3. Each party asserts non-disclosure on the part of the other. The husband asserts that the wife did not tell him that she had sold her property in Suburb M. The wife asserts that the husband did not tell her that he was in the process of selling his property in Country F. The wife asserts that the husband has disposed of funds. The husband denies that he has done so although he admits that he has moved funds.

4. Each is distrustful of the other and asserts that property will be disposed of.

5. There is no present evidence that the husband needs lump sum funds which would need to be raised by selling or further mortgaging his real estate. He has adequate income to meet his day to day expenses.

6. The wife has no significant assets except for her bank account.

7. After the husband complies with the order for interim property settlement, they will each have about $600,000 in liquid assets and they will each have to account for those funds in the final hearing.

8. I propose to make an order restraining the husband from encumbering or dealing with his real property without first giving the wife 28 days’ notice. He will also need funds to pay legal fees and I do not propose to restrain him from using the funds he has in the bank and in shares.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 September 2017.

Associate: 

Date:  6/09/2017