FILMER & FILMER

[2012] FamCA 783

FAMILY COURT OF AUSTRALIA

FILMER & FILMER [2012] FamCA 783

FAMILY LAW – SPOUSAL MAINTENANCE – interim orders – application by the husband seeking that previous orders for spousal maintenance be discharged or alternatively, be varied – where the wife seeks that the amount of spousal maintenance be increased with the husband to pay the costs of the maintenance of the former matrimonial home – where there are significant issues about the financial circumstances of the husband – where the Court was not in a position to make a determination based on the material it had before it – application adjourned and orders that the parties file further material.

Family Law Act 1975 (Cth)

APPLICANT: Ms Filmer

RESPONDENT: Mr Filmer

FILE NUMBER: ADC 3244 of 2010

DATE DELIVERED: 28 August 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 28 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Burrell

SOLICITOR FOR THE APPLICANT: David Burrell & Co

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

Orders

UPON NOTING THAT the husband is to file and serve a notice of address for service within 7 days from today.

(1)The applications filed by the husband and the wife are adjourned to 3 December 2012 at 9.15am.

(2)During the period of the adjournment the current orders are to remain in place.

(3)The parties file and serve any further affidavit material which is to be relied on at the adjournment by no later than 26 November 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Filmer & Filmer 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 ADELAIDE

FILE NUMBER: ADC 3244 of 2010

Ms Filmer

Applicant

And

Mr Filmer

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an Application in a Case by the husband filed on 5 July 2012.  In that Application in a Case, the orders sought by the husband were that the order for spouse maintenance made on 21 December 2011 be discharged, or in the alternative “that the order be varied to such other sum as the Honourable Court deems just and equitable”.  The application sought “that it be heard at the earliest opportunity”.

2. When that application was lodged, the husband was represented by solicitors.  Accompanying the application was an affidavit of the husband also filed 5 July 2012. 

3. In response, the wife has filed a response to the application in which she seeks orders that the application by the husband be dismissed and that the spouse maintenance be varied by substituting $1500 for the figure of $1000, or by substituting the figure of $1250 for the figure of $1000, with the husband to forthwith pay, or organise and pay the reasonable costs of maintenance to the former matrimonial home.  That response to the application was also accompanied by an affidavit sworn by the wife. 

4. On the hearing of the interim application, the wife is represented by Mr Burrell.  The husband appears unrepresented.  He says that his solicitors ceased to act for him only yesterday.  He has been directed to file and serve a Notice of Address for Service within seven days from today. 

5. I have considered the affidavit material and the oral submissions put to me by counsel and the husband in person.  It must be emphasised that this is an interim application and I have before me affidavit material which raises serious issues which cannot be resolved simply by reference to that affidavit material.

6. One significant feature is that the husband asserts, in his affidavit filed on 5 July 2012, that he:

   Mistakenly omitted from his Financial Statement that he owns a property at [Town M].

7. The husband refers to purchasing a property at Town M on 18 April 2011 for a purchase price of $910,000.  He then sets out that he also purchased furniture for the property in excess of $40,000 making the total cost in excess of $1 million.  He then sets out the basis upon which the funds were raised for that purchase in April 2011, including an interest only loan from National Australia Bank in the husband’s name for $668,000, savings of some $25,000, proceeds of sale of a property owned by one of the trusts and monies borrowed from other persons. 

8. The purchase of this property was clearly an issue.  The wife’s affidavit refers to it in terms in which it is suggested that the husband had deliberately withheld the information concerning the purchase of the property until pressed. 

9. The wife’s affidavit also annexes documents obtained from subpoenaed material which suggests that the banks were informed that the husband’s net income recently was as much as “actual income paid of $167,800” (one of the documents in annexure “C” to the wife’s affidavit).  This is in stark contrast to the material provided in the Financial Statement of the husband which was filed on 5 July 2012, in which the husband asserts that his average weekly income is $1916 by way of total salary or wages, and has no other income. 

10. These issues concerning the available income are matters which cannot be determined simply by referral to the current documents on file. 

11. It is significant that the husband’s business activities also relate to various company and trusts which, according to the husband’s Financial Statement, have a value of $402,500. 

12. In the submissions I have heard this morning, the husband maintains that he is the sole income earner and the wife is not earning any income.  He refers to working seven days a week and up to 80 hours a week. 

13. It is clear from the information before the Court that the wife does not have an available income.  On the material provided to the Court she is in need of maintenance.  The only significant issue to be determined is the capacity of the husband to pay any amount to assist in the support of the wife.

14. The husband has said, from the bar table, that his first priority is to make payment to the bank.  That payment due to the bank is a matter which may, in fact, alter upon the sale of other properties and the repayment of loans in relation to those properties.  What is significant is the Consent Order made in December 2011.  This was a Consent Order made for the husband to make those payments at a time when he had already purchased the property at Town M and was already aware of the significant amounts outstanding and to be repaid in relation to the various entities and debts.

15. At this stage of the proceedings, although it is easy to accept that the values of the properties may have reduced and there have been difficulties in effecting the sale of the properties, I am not sufficiently convinced that that is a basis upon which to discharge a Consent Order which was made as recently as December 2011. 

16. The Financial Statements cannot be considered as reliably setting out all of the financial circumstances of each of the parties.  Taking into account that it is an interim matter and the material before the Court at this stage it is not appropriate to discharge the order.  I will adjourn the matter (both the application by the husband and the application by the wife) to a date in December 2012 to ascertain whether there is more reliable information available to the Court to make the appropriate decision. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 28 August 2012.

Associate: 

Date:   12 September 2012