Ellison and Peters (No 2)

[2011] FamCA 860

FAMILY COURT OF AUSTRALIA

ELLISON & PETERS (NO 2) [2011] FamCA 860

FAMILY LAW – SPOUSAL MAINTENANCE

Family Law Act 1975 (Cth)

APPLICANT: Mr Ellison

RESPONDENT: Ms Peters

FILE NUMBER: SYC 1801 of 2011

DATE DELIVERED: 6 October 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 26 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

COUNSEL FOR THE RESPONDENT: Mr Wong

Orders

1. The father is to forthwith pay to the credit of a bank account nominated by the mother the sum of $6,000 with the categorisation of such sum as partial property settlement, lump sum maintenance or interim costs to be left to the trial judge.

2. Pending further order the father is to pay to the credit of the mother in a bank account nominated by her from time to time monthly in advance spousal support in the sum of $1,950 per month the first of such payments to be made on 7 October 2011 and on the 7^th day of each month thereafter.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1801 of 2011

Mr Ellison

Applicant

And

Ms Peters

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are interlocutory proceedings in which the mother seeks orders as to procedure, as to spousal maintenance ($5,000 per week is sought) and “interim costs in the sum of $75,000”.

2. The father in his Reply has opposed the making of the procedural orders and that the application for spousal maintenance and costs be dismissed.

3. The father filed a Financial Statement in these proceedings which provided the following information:

   a)he had a total average weekly income of $2,300

   b)he had total personal weekly expenditure of $2,776

   c)he had property to the value of $1,087,091

   d)he deposes that his liabilities amount to $1,260,922

   e)he says he has no financial resources.

4. Included in the assets of the father are a property at B Town said to be worth $1,050,000 and a motor vehicle of a value of approximately $25,000.  He owes he asserts on mortgage to his father an amount of $1,200,000.

5. The mother filed a Financial Statement on 22 June 2011 and in summary provides the following information:

   a)her total average weekly income is $360

   b)her total personal expenditure is $21

   c)the gross value of her superannuation is nil

   d)her liabilities amount to $5,000 and

   e)she says she has no financial resources.

6. Her source of income comprises a New Start allowance of $360 per week;  a Commonwealth income-tested allowance;  and she also receives, the Court is informed, an amount of $400 per week by way of an income-tested State rental payment subsidy.

7. The Court is informed that the State rental allowance is income tested.

8. The mother sets forth in her Financial Statement in Part N a list of her requirements for reasonable support and there is nothing in the Court’s view in the expenses claim which could be said to be excessive.

9. It is noted that the mother is presently paying rent of $550 per week.

10. In her affidavit filed on 21 June 2011 the mother deposes that she was born in 1975 in Country C and is the sole survivor of her family as a result of the Country C genocide.

11. She was brought to Australia in 1995 by the United Nations.

12. She suffered injuries and trauma and has been diagnosed with post-traumatic stress anxiety and depression as a result of her experience and has undergone psychiatric therapy and treatment.

13. There is not before the Court clear evidence to the extent to which that those illnesses affect her earning capacity if at all.  However the mother is not presently in employment.

14. The mother deposes that she does have either property or claims to property in Country C.  It is put to the Court that the family property there was occupied by others and in order to reclaim it she would need to go to Country C and commence proceedings in some sort of tribunal.  She has not presently she says the means to do so.

15. She is uncertain of the current status in relation to the property.

16. She deposes that she has some personal possessions, some of which were located in a property which she describes as a property “we own in City D at E Street, Suburb F.”

17. There has been a suggestion to the Court that that property is owned by the mother but the mother asserts that she is unable to further deal with property absent her return to City D.  She says she has not the means to do so and the Court accepts that that is so.

18. It has been asserted by the father that the mother has been addicted to drugs and she has been undergoing urinalysis at the direction of the Department of Community Services.  There is no evidence of the current use of drugs by the mother.

19. There are assertions made by the mother that the father has significant assets in the name of a trust or company associated with him.  Whilst in Spry and Kennon the definition of property is indeed wide, there is not evidence before the Court which would enable the Court to find that there is a pool of net assets available to the father.  That position of course may change.

20. The mother seeks lump sum maintenance in order to enable her to provide for her rental accommodation, her cost of living to provide for her medical needs and to permit her to travel to City D in order to regain financial independence to retrieve her personal belongings and to maintain her residency status there.

21. She deposes that she has presently legal costs unpaid of approximately $30,000 and she estimates in her affidavit that her future legal costs could be as much as $150,000.  It is asserted that costs will include counsel’s fees the sum of $30,000, forensic document expert expenses up to $10,000, a forensic accountant some $15,000 and subpoena conduct money of up to $2,000 (presumably to bring someone from City D).

22. It is noted that the Court does have power to allow such a witness to give evidence by electronic means.

23. The mother deposes that the father makes his money through trading futures and share trading.  She says that during their relationship he was receiving the sum of about $5,000 per week from interest alone.

24. She deposes as to statements made by the father as to income derived by the father from his trading activities.  She further deposes that the father purchased a teak plantation in Country G in her name for the sum of $80,000 which is under his control at present.

25. She deposes that he purchased some $40,000 worth of seed and planted teak trees in about 2009.

26. The property in which the mother holds an interest in City D is an undeveloped island.  Her interest is asserted by her to be held with business partners of the father.

27. The mother says that when they were in a relationship the weekly expenses were approximately $10,000 per week.

28. She refers to representations made to her by the father during their cohabitation that he had an interest at H Street, Suburb I of an estimated value of $4 million.  This is not conceded by the father.

29. The mother says that she is unable to produce evidence of her ownership of the properties in City D and says in any event they remain under the father’s control.

30. The mother deposes as to her understanding of the father’s business interests including interests in companies and trusts.  She says that she believes that one of the trusts may have received the proceeds of an inheritance in the sum of

    
    

    $2 million from the father’s grandmother.  This is denied by the father.

31. The father filed affidavits by himself and his father.

32. The father’s father gives evidence as to contributions he has made to the financial position of the parties including contributions made by way of loan secured by mortgage to enable the purchase of a home at B Town.

33. The father’s father claims that the total amount outstanding to him at the present time is $1,194,376.  He confirms he has exercised his right as a mortgagee in possession of the former matrimonial home at B Town and sold it for $1,050,000.

34. The father will be obliged to pay under the arrangements with his father the balance of the funds owing of $168,000.

35. The father’s father also deposes as to making some payments on account of legal fees of the father and confirms that on 27 July 2011 the father paid to him the sum of $80,000.

36. The father’s father gives estimates that the total liability of his son to him after the completion of the sale of the B Town property will be $249,205.

37. The father’s Financial Statement filed on 7 September 2011 deposes that he has an average weekly income of $2,300 and asserts that his personal expenditure is $2,776.  He asserts he has property to a value of $1,087,091 and liabilities of $1,260,922.

38. Included in his assets are:  a credit in his bank account of some $12,091;  a Hyundai motor vehicle of $25,000.

39. The father deposes that he receives 80 per cent of monthly profit on his futures trading from his employer but is bound to make up trading losses before the profit share is received.  He says that for the current financial year he has incurred trading losses of $33,155.97.

40. He resides with his father and mother at Suburb I.  It does not appear he pays any rental or board in respect of that and it appears that he is to a significant extent supported domestically by his mother and father.

41. He does clearly have expenses in relation to the children.  He is obliged to pay amounts to their benefit and those amounts he asserts include kindergarten fees of $598, and personal costs of some $300.  He deposes that he is presently paying supervision costs in relation to the children in the sum of $918 per week.

42. The father denies that he has any significant assets and says that he does not hold a beneficial interest in any assets that are held in any other person’s name.  He says he has disposed of no assets since separation.  However the fact is he has paid to his father a sum of $80,000 and has disposed of some money in the purchase of a motor vehicle.

43. He has paid to others who cared for the children an amount which he says they expended on the children and says he is obliged to pay further sums.  There is no independent or other corroborative evidence of that expenditure or of any legal liability to make the payments.

44. He asserts that in June 2011 the mother withdrew the amount of $60,000 from his savings account without consultation.  The father had permitted the mother access of the savings account.  There is no evidence that there is any unexpended portion of this sum presently available or accessible by the mother.

45. He deposes that so far as he is aware the mother does not own any property in Country G and denies that he has purchased a teak plantation in his name or any person’s name.  He denies that he has ever been in partnership with others in City D.  The father denies that he owns property other than the property at B Town (subject to the mortgagee’s sale).  He denies the assertions made by the mother as to his resources and property.

46. He concedes that he has established two trusts for each of his two children.  He says of the trusts that they have no assets and have never traded.

47. He denies that his grandmother has bequeathed any inheritance to him or his children.  He says that his grandmother was a pensioner who had no assets.

48. The father denies that he has any capacity to meet any order for spouse maintenance or interim costs.  He asserts that the mother has capacity to work and has worked previously in her own business in City D.  He expresses his belief that the mother may be working.  There is no independent evidence to support this belief or demonstrate that it is a fact.

49. The provisions of the Act are such that I am first obliged to determine whether by reason of age, ill health, necessity to care for children or for any other adequate reason the mother is unable to adequately support herself having regard to her income, property and financial resources.  In considering that issue I am obliged to ignore any amount received by her by way of income-tested pension, allowance or benefit.

50. The Court finds that she is presently unable to support herself by reason of the fact that she is unemployed and she appears to have no available assets which could be realised.  She is in receipt of income-tested pensions, allowances or benefits which I am obliged to ignore.  The Court finds that the need for maintenance has been proved at this time.

51. The question then remains whether there is a sufficient sum to enable the father to meet any or all of the mother’s needs by payment of maintenance having regard to his income, property and financial resources taking into account his reasonable needs.  The mother does not depose to any present financial resources but she probably does have a capacity to work subject to her finding work.

52. The Court finds that the father has not demonstrated that he has any nett property save for the balance in his bank account.

53. The father has property but that is subject to liabilities which exceed its value.  Nevertheless the father has since separation chosen to pay to his father the sum of $80,000 in reduction of debt and it does appear that he does receive from time to time significant income.  He has money standing to his credit in a savings account.  The ability of the father to procure loans from his family is in the nature of a financial resource.

54. He deposes that his income is intermittent and success related.  He has at the present time to recoup losses it appears already incurred by him before he can receive further income.  He has however had significant income and has a demonstrated capacity to earn income.

55. The Court has considered the following additional matters under the provisions of section 75(2)

56. The father is aged 40 years.  The mother is aged 36 years.

57. The mother suffers from the illnesses referred to above.  There is not evidence that the father is other than well.

58. The income, property and financial resources of the parties has been considered.  The mother has some past demonstrated capacity for appropriate gainful employment but it is uncertain whether her illness is any bar to her continued employment.

59. She is presently seeking employment but there is no evidence she has procured it.

60. The father has an ability to earn income in his current occupation and the extent of that income has been discussed earlier.

61. The father has the care and control of two children of the marriage who have not attained the age of 18 years and included in that obligation is an obligation to pay for supervision of the time spent by the children with their mother.

62. I have considered the commitments of the father that are necessary to enable him to support himself.  In that regard the father is greatly assisted by his parents who provide accommodation and apparently food for him.

63. The mother sets forth her needs as set out above and they are considered not unreasonable.  Neither party so far as the Court is aware has a currently invoked responsibility to support any other person although the mother is the mother of other children.  The mother is eligible for income-tested allowances and benefits as set forth above.

64. The mother deposes as to having no superannuation entitlement.  The father deposes as to having no superannuation entitlement.

65. It is noted the parties are separated.

66. The mother lives in rented accommodation and the father resides in his parents’ home located at Suburb I.

67. The standard of living proposed by the mother in her Financial Statement would, in the Court’s view, be a standard which is reasonable.

68. The father’s current standard of living is reasonable having regard to his present commitments.

69. It is not suggested that the mother is proposing to undergo a course of education or training but is simply seeking employment.

70. There is significant money owed to the father’s family and to some extent one has to consider the priorities as between the support of the mother of his children and his obligation to repay his father’s and mother’s debt.

71. The Court proposes that the order that it intends to make will strike such an appropriate balance.

72. It appears that the mother has contributed albeit indirectly to the income earning capacity, and financial resources of the father and vice versa.

73. The mother and father each desire to continue their roles as parents and there are parenting issues awaiting determination.

74. So far as the Court is aware the mother is not cohabiting with any other person.

75. The father resides with his parents.

76. No order is presently made under section 79 of the Act.  There are proceedings foreshadowed seeking such orders.

77. The Court has considered the obligation the father may have to pay child support for his children in the future, and has taken into account at least the theoretical possibility (and given it little weight at this time) to the obligation that the mother may have to pay child support with respect to children of prior relationships as well as the children of the marriage.

78. The Court nevertheless believes that the father has some capacity to make payments to the mother at this time but not capacity to meet the claim which might otherwise be considered to be reasonable.  In the circumstances the payment will have to be adjusted to an amount within the Court’s view of his capacity to pay.

79. Accordingly, the father and on this basis it is proposed that the father will pay to the mother an amount of $450 per week.

80. As to the claim for a partial property settlement, the Court is not satisfied on the evidence at this stage that there is a pool of assets from which reasonably such a sum could be met.  It is not satisfied that, having regard to the current demands on the father’s income, and, giving some priority to his need to provide care for the children, and to provide supervision of contact, an amount which would provide an amount by way of lump sum maintenance which would meet the mother’s need for interim costs as alleged, exists save for his savings of some $12,000.

81. The mother has a need for representation.  She is Country C by birth.  She has been unable to procure legal aid by reason of the existence of property to which she says she may have claim.

82. It appears at the moment at least that such a claim is unable to be sustained by her given her resources.  Accordingly, she has no assets available to her immediately to fund her litigation.

83. It is noted that there are parenting issues of importance and at this stage the Court takes the view that the father should pay to the mother by way of lump sum the sum of $6,000.00 with the reservation to the trial judge of the categorisation of that payment as lump sum maintenance, partial property settlement or interim costs.  It is recognised that the sum is small but, given that there are parenting issues, it is in the interests of the children that the Court hear from each of the parents and that they and the Court has, if possible, their evidence presented in a way which assists the Court to determine the issues.

84. There are no additional matters which the justice of the case requires be taken into account.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 6 October 2011.

Associate: 

Date:  6 October 2011