George and George

[2012] FamCA 413

FAMILY COURT OF AUSTRALIA

GEORGE & GEORGE [2012] FamCA 413

FAMILY LAW - PROPERTY – Interim Spouse Maintenance – Child support departure – Lump Sum payment sought by husband and wife – Injunction sought to restrain property being encumbered

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

APPLICANT: Ms George

RESPONDENT: Mr George

FILE NUMBER: SYC 7612 of 2011

DATE DELIVERED: 1 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 14 & 16 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: York Family Law

COUNSEL FOR THE RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE RESPONDENT: David Begg & Associates

Orders

1. The parties do all things necessary to cause the following sums to be paid from the controlled monies account holding the balance of the funds from the sale of the Hong Kong property:

   (a)A payment of $150,000 to the wife to be used as she determines and to be characterised ultimately by the trial judge;

   (b)A payment of $90,000 to the wife’s solicitors, York Family Law with such funds to be deposited into their trust account and used only for the payment of the wife’s future costs and disbursements;

   (c)A payment of $100,000 to the husband, the characterisation of which is to be determined by the trial judge;

   (d)Pending further order, the payment of each of the children’s school fees, cost of school uniforms, cost of school sports uniforms, cost of school books, cost of L’s excursion to South Asia in September 2012, all those payments to be characterised by the trial judge at the conclusion of the property proceedings.

2. All interest accruing on the controlled monies account is to be paid to the wife as interim spouse maintenance pending the completion of the financial and property matters in this Court. Such interest to be paid monthly, if that is possible, otherwise paid to the wife as it accrues.

3. The parties are to cause the rental payments received in respect of the property at … B Street, Suburb M (“the B Street property”) to be paid in equal amounts on the first of the month to each of the parties.

4. The parties’ applications for interim child support departure orders are dismissed.

5. The Court notes that the husband asserts that he is meeting the insurance premiums for the Medibank Private Family Health Care.

6. The Court notes that the husband asserts that he will be responsible for paying the outstanding Telstra telephone account standing in the wife’s name.

7. Pending further order, the husband is to meet the mortgage instalments payable in respect of … T Street, Suburb F (“the Suburb F property”) and … C Street, Town S (“the Town S farm”)  as and when they fall due. The husband is to forthwith pay any arrears on such mortgages.

8. Pending further order, the husband is to meet the Council rates and other outgoings in respect of the Suburb F property and the Town S farm.

9. Pending further order, the parties are to jointly meet the expenses associated with the B Street property, on the basis that they each contribute one half of such cost and they are to cause the rental to be divided equally between them.

10. Pending further order, each party is restrained from further encumbering any of the assets currently owned by them.

11. The wife is to provide the husband with copies of all correspondence received from Medibank Private Health Insurance including any electronic correspondence.

12. Pending further order, each of the parties is restrained from withdrawing any further monies from the Commonwealth Bank account number …05.

IT IS NOTED that publication of this judgment by this Court under the pseudonym George & George 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 7612 of 2011

Ms George

Applicant

And

Mr George

Respondent

REASONS FOR JUDGMENT

Introduction

1. The wife, Ms George seeks orders as contained in exhibit W2 in relation to interim spouse maintenance, child support departure, a lump sum payment and injunctions requiring the husband, Mr George to meet certain expenses of the parties. By exhibit W1 the wife also seeks the following further order:

   Pending further order:

   That the husband be and is hereby restrained from withdrawing any monies from the Commonwealth Bank Account number […05](mortgage account).

2. The husband seeks the orders set out in paragraph 5(b) of the Amended Response to Initiating Application filed by him on 14 May 2012.

3. The wife relies on specified paragraphs in her affidavit sworn 11 May 2012 and specified paragraphs in her affidavit sworn 13 December 2011. She also relies on her financial statement sworn 11 May 2012.

4. The husband relies on specified paragraphs in his affidavit sworn 17 January 2012 and specified paragraphs in his affidavit sworn 14 May 2012. He also relies on his financial statement sworn 14 May 2012.

5. On 17 January 2012 interim consent orders were made providing for the wife to be paid the sum of $125,000 from the proceeds of the sale of the Hong Kong apartment. Her solicitors were also to be paid $50,000 on account of costs. At that time, the balance of the interim orders then being sought were adjourned for hearing before me on 14 May 2012.

6. Having paid out the wife the amounts required pursuant to the order of 17 January 2012 a balance of $1,150,245 was deposited in a controlled monies interest bearing account held for the parties.

7. The amount of the proceeds from the Hong Kong apartment held on behalf of the parties does not include an amount of approximately $187,500 which was retained by the husband being the balance of the 10% deposit which had been paid in respect of the sale. The husband had the sum paid to himself and it is the complaint of the wife that he has failed to account for how he has spent those funds.

8. The $50,000 paid to the wife’s solicitors on account of legal costs has now been expended. The wife has been billed a total of $56,501 since the commencement of their acting for her. There remains $15,324 in credit as at 11 May 2012.The wife seeks a further $90,000 be allocated to her on account of her legal costs.

9. As at 11 May 2012 the wife had spent all but $45,356 of her $125,089 received pursuant to the orders of 17 January 2012. Part of the money spent included a transaction on 4 May 2012 where the wife loaned to her father $1,128. She anticipates that will be repaid shortly. On 2 March 2012 the wife also repaid one loan of $33,871 to R Garner and $22,307 to J Garner. This was a repayment of monies loaned to her by family members. She also paid $962 to former solicitors who had acted for her. She bought flights for herself and the children totalling $3,729 on 2 March 2012 in order to fly to Hong Kong to renew entry into Hong Kong.

10. The wife also seeks a further cash payment of $150,000 to be ultimately categorised by the trial judge.

11. The wife says that although the husband has traditionally paid the Medibank Private health insurance instalments he has not done so since 16 March 2012 and their cover has ceased. She further says there is an outstanding Telstra telephone account of $6,352.23 relating to services attached to T Street, Suburb F (“the Suburb F property”), C Street, Town S (“the Town S farm”) and the children’s mobile telephones. She is unable to pay that amount to Telstra. The accounts stood in her name and the failure to pay them is reflecting on her credit rating. She seeks that the husband pay the outstanding Telstra account forthwith.

12. In her affidavit sworn 13 December 2011 the wife provides the following background evidence. She is 43 years of age and the husband is 50 years of age. They have four children, L aged 15, H aged 14, D aged 12 and E aged 7. Cohabitation commenced between the parties in August 1994 and they were married in July 1995 in the United Kingdom. They separated in about January 2011 albeit under the one roof. The wife and children moved physically from the former matrimonial home on 24 June 2011. The wife and children now reside in rented accommodation two streets from the former matrimonial home in Suburb F.

13. At the commencement of cohabitation the husband owned two pieces of real estate in Australia. The wife had some limited savings. Throughout the cohabitation the husband has been in employment.

14. In December 1994 the husband moved to Indonesia to work as a manager. The wife accompanied him however she was unable to work in Indonesia. In March 1996 the parties relocated to Hong Kong.

15. In October 2001 the husband was retrenched from his then position in Hong Kong. In early 2002 he set up his own business as a consultant.

16. In December 2005 the parties moved from Hong Kong to Sydney. In March 2006 he commenced working for G Company as an associate partner.

17. At the commencement of cohabitation the wife was employed in the education field. She was unable to work in Indonesia. In 1996 she obtained employment in Hong Kong working on a part time basis in the education field. In January 2002 her work changed to full time work. In 2003 she ceased working as a result of the SARS epidemic in Hong Kong. She has not worked in Australia since their return in 2005. In February 2010 the wife commenced a bachelor’s degree at university. She anticipates finishing in about June 2013.

18. In relation to child support the wife says that currently there is a child support assessment, however, it is insufficient to meet the children’s needs. The evidence suggests that the child support payment is $591 per week. However, the two eldest children attend private schools and the younger two are expected to do so as they reach high school age. The husband has met these fees in the past. The children engage in extra curricular activities that require uniforms and equipment. They also play musical instruments which require them to receive tuition.

19. In relation to the wife’s claim for spouse maintenance she says that on 12 August 2011 she removed from the parties’ joint account the husband’s salary of approximately $11,800. She used those monies to meet the expenses of herself and the children.

20. Until about March of this year the wife was able to draw on a Citibank account into which rent from a property owned in Suburb M was paid. This provided her with between $1,000 and $1,500 for every 4 to 6 week period.

21. In October 2011 the wife borrowed the sum of $20,123 from her parents.

22. The wife’s case is that during the course of the cohabitation the parties lived a very comfortable lifestyle. When they lived in Hong Kong the children attended private schools. The parties and children enjoyed private health cover in Hong Kong and Australia. Between 1996 and 2005 the parties had a maid who helped with housework and baby-sat the children in Hong Kong. In Hong Kong they lived in an affluent suburb and joined the K Sports Club.

23. When living in Hong Kong the parties ate at restaurants one or two meals a week. Each year before moving to Australia and while they lived in Hong Kong the wife and children visited the United Kingdom to see her parents. They generally stayed for up to 8 weeks during the summer holidays. Generally during the marriage the parties had holidays approximately twice a year until they moved to Australia where it was agreed their holiday time would be spent on the farm at Town S. During the marriage the wife said that she generally shopped at high-end stores and was able to afford expensive or designer items. The children have also become used to a comfortable lifestyle and have expectations in relation to travel and holidays. They have enjoyed expensive toys for birthdays and Christmas.

24. The wife claims that the husband has failed to pay the Town S farm mortgage which is registered against the property in their joint names. She seeks an order that he make those payments as and when they fall due.

25. The wife annexed to her affidavit copies of child support assessments. For the period 29 July 2011 to 5 September 3011 the monthly rate payable by the husband to the wife was $3,372.33. For the period 6 September 2011 to 28 October 2012 the monthly rate is $2,563.

26. The wife has made requests of the husband to pay the following amounts:

    a)Telstra $5,413.77 ( now increased to over $6,000);

    b)I School fees for H, $8,696;

    c)Z Educational Support for D, $120:

    d)Medibank Family Health Care Insurance, $323.75 per month; and

    e)HSBC Life Insurance, $8,000 Hong Kong Dollars per annum.

27. The husband opposes the orders sought by the wife and seeks other orders as set out earlier in these reasons.

28. By way of explanation for the withdraw of the 10% deposit arising from the sale of the Hong Kong property the husband says he withdrew the funds because the wife had withdrawn funds from other accounts. He says he has used these funds to pay matrimonial debt and living expenses.

29. Many of the paragraphs relied upon by the husband from his affidavit really deal with matters which are peripheral to the consideration of the applications currently before the Court (no criticism intended). They nonetheless answer allegations raised by the wife in her affidavit.

1. In paragraph 45 of his May 2012 affidavit the husband advises that he has lodged an appeal against the child support assessments currently in place for the children. That appeal has been lodged with the Child Support Agency. The husband annexed a letter dated 14 May 2012 from his solicitors to the wife’s solicitors providing details of how the 10% deposit retained by him from the sale of the Hong Kong apartment was spent. The amount retained was $181,622. He has $9,586 left. All but $5,071 of the account has been paid for legal expenses. The sum of $5,071 was expended on a trip to Hong Kong at the end of June 2011.

2. The husband says that in addition to paying child support he continues to pay school fees, school uniforms, texts and stationary, co-curricular school activities and after school activities including sport, dance, children’s mobile phones, significant family health cover, orthodontists and additional medical expenses. He has additionally cared for the families two pet dogs. He has paid utilities, rates and insurance and other expenses in relation to the Suburb F property and the Town S Farm and the property at B Street, Suburb M (“the B Street property”).

3. During the course of the hearing I was told there was general agreement that the Suburb F property had a value of about $1.5 million and a mortgage of $439,000. The property at Town S had a value of about $900,000 and a mortgage of about $330,000. The B Street property had the value of about $425,000 and there was no mortgage. The parties had the sum of $1,165,000 in a controlled monies account. Clearly there is a large sum of equity which the parties hold in these assets.

4. The husband’s financial statement shows that he has an income of $4,270 per week from his work with G Company and an income of $320 per week from the rental of the B Street property. That property is owned jointly by the parties and so the husband attributes one half of the rent only to his income. He has a small income from shares and dividends and the parties jointly earn income on the interest bearing deposit which contains the balance of the sale proceeds of the property in Hong Kong.

5. The wife shows her income as consisting of family tax benefits and a pension together with the child support payments. Without the weekly arrears figure of $321 in respect of child support, her income from those sources is almost $1,100 per week. The amount received by her for pension and other government payments is not a figure which can be taken into consideration in determining a spouse maintenance application. But can be taken into account in relation to determination of a partial property order or alternatively the payment of a sum of money which ultimately will await the determination of a trial judge as to how it might be categorised.

6. In part N of the wife’s financial statement she sets out the breakdown of everyday expenses associated with her own support and the support of the children. I will refer to those figures later in these reasons.

The Wife’s Oral Submissions

1. The wife provided oral submissions during the course of the hearing and also written submissions in reply. In her oral submissions she took the Court to several exhibits starting with exhibit W4. This exhibit contains bank statements produced by the Commonwealth Bank of Australia(“CBA”). The accounts relate to the husband and I was taken to three marked tabs to be shown total withdraws of $118,000 by the husband between 13 July 2011 and 23 November 2011. It is submitted by the wife that the husband has not accounted for those payments. The account being drawn against was the mortgage account which opened with a debit balance of $386,000 on 13 July 2011 and closed with a debit balance of $439,000 on 23 November 2011.

2. The wife referred to exhibit W3 which are bank statements in the husband’s name for an account with HSBC. This showed that on 17 January 2012 the account had a balance of HKD$878,276. In the husband’s last financial statement he asserts that he has AUD$50,000 in deposit in that account. It is submitted that no explanation has been provided for the balance.

3. Exhibit W5 is a statement in respect of CBA shares held by the husband. The husband discloses in his financial statement 2,805 shares in the CBA. However, the total number of shares according to exhibit W5 is 4563. The wife submits there is no explanation for the difference.

4. The wife made submissions in relation to the husband’s financial statement. Firstly, she submitted that he receives the whole of the rent from the B Street property which is $320 per week and not $160 per week as asserted by him. Next she drew the Court’s attention to the fact that the husband makes additional voluntary superannuation payments of $379 per week. She submits that is over and above that paid by his employer.

5. The wife proposes that she should receive a total payment by way of spouse maintenance of $2,000 per week. That would provide $1,000 per week rental for her and $1,000 living expenses. She is prepared to offset that against any money she receives from the controlled monies accounts by way of income or periodic payment.

6. In relation to the child support departure order, sought by the wife, it is conceded that she, like the husband, could lodge an appeal against the assessment with the Registrar of the Child Support Agency.

7. In relation to the orders sought in exhibit W2 the wife addressed paragraph 8 and acknowledged that the husband has agreed to pay the Telstra telephone account as identified in that order. She also acknowledged that the I School fees and the Z Educational Support fees for D’s special needs lessons had been paid. The Medibank family health care insurance is still outstanding.

8. In relation to paragraph 9 it is submitted that the husband is the only person who could meet the payments. He wishes to retain the Town S farm and he lives in the Suburb F property. It is submitted that it is appropriate that he should meet those expenses at this time.

9. In relation to paragraph 10 the wife asserts that there are arrears now owing in respect of the mortgage secured against the Town S farm.

10. In relation to paragraph 11 the wife seeks an order that she be permitted to lodge a caveat over the Suburb F property. That property stands in the husband’s sole name. The husband for his part submits that an order sought by him in the following terms is sufficient to safeguard the wife. That order is as follows:

    That the husband and wife refrain from further encumbering the [Town S] farm and [Suburb F] property.

11. Paragraph 12 sought by the wife is no longer pressed as the husband has now made disclosure of how the funds received by him from the 10% deposit on the sale of the Hong Kong property were applied.

1. In relation to paragraph 13, which sets out the orders sought by the wife in respect of the income from the deposit with the controlled monies account, she proposes that income be applied to her and deducted from the husband’s obligation to make payments of spouse maintenance to her pursuant to these orders.

2. In relation to paragraph 14 of the application of the wife, she submits that there is no particular reason to have selected a figure of $150,000 as opposed to $100,000 as promoted by the husband. However, if she was paid $150,000 it would extend the time during which she would not have to make further applications to the Court. She submits that the amount sought for interim costs in paragraph 14 (b) is not unreasonable.

3. The parties have not yet had a conciliation conference and there are still outstanding valuations to be obtained which may take two to three months.

4. By way of summary, the wife submits that the husband’s income is far greater than he has disclosed. He has the capacity to pay spouse maintenance. He has had access to the funds which were not made available to the wife. The husband’s non disclosure means the Court does not have to be cautious about his ability to pay. It is submitted that having regard to Part N of the husband’s financial statement it is not possible to ascertain what he actually spends to support himself. He has not made a division of his costs between himself and his children. It is submitted that this lack of compliance with the requirement to provide the division of expenses should not adversely affect the wife’s application.

5. It was conceded that from the date of separation until March 2012 the wife received the entire rental income available to the parties from the B Street property.

The Husband’s Oral Submissions

1. The husband first addressed the allegations of the wife that the husband had withdrawn $118,000 from the CBA mortgage account between 13 July 2011 and November 2011. The husband through submission was able to show that the withdrawals were not as asserted by the wife. On 20 July a figure of $60,000 said to be withdrawn by the husband was not in fact withdrawn at all. The entry for that day reflects a banking accounting process. In total it appears that the husband has withdrawn about $50,000 which has been used to meet his expenses including legal expenses and expenses for the children.

2. In relation to the shares said to be held by the husband in the CBA, the husband asserts, as disclosed in his affidavit at page 41, that the ownership of the second parcel of shares referred to by the wife represents only one third to himself. He owns those shares in partnership with his father and brother.

3. It is contended on behalf of the husband that there is no jurisdiction to grant interim child support. Section 139 of the ChildSupport (Assessment) Act 1989 (Cth) refers to urgent child support which can be the subject of an order by the Court.

4. It is submitted that if the court makes an order for departure from the child support assessment then it should be for a specified period. That could be a period concluding with final orders being made in respect of the financial proceedings.

5. It is submitted that if the wife was to receive the $150,000 lump sum payment from the interest bearing account that would provide her with $195,000 in a bank account. It is submitted that the Court would then have to determine whether the wife was still in need of spouse maintenance.

6. In submissions the husband addressed the wife’s need for spouse maintenance. He addressed item 21 in the wife’s financial statement. That sets out a rental for the wife’s residence of $922 per week. It is submitted that as the children live with the wife the Court can not take into account the whole of that rental but only a part, otherwise a spouse maintenance order may indirectly be a child support departure.

7. In Part N of her financial statement the wife shows her share of total expenses at $615 per week. To that should be added only 20% of the other expenses associated with the household, bearing in mind that there are five persons occupying the property including the children. It is submitted that an expense claimed for computing of $135 per week is excessive.

8. The Court’s attention was drawn to section 141(g) of the Child Support (Assessment) Act. This section is said to support the power of the Court to make an interim child support departure.

9. The husband says that a proper analysis of the wife’s needs establishes that her requirement for spouse maintenance is about $461 per week and not in excess of $2,000 per week as claimed by her.

10. It is asserted on behalf of the husband that he has no capacity to meet a spouse maintenance order as claimed by the wife. He currently pays child support in the sum of $591 per week, life insurance premium of $83 per week, health insurance of $75 per week and $596 per week in school fees. His non discretionary payments account for all but $600 per week of his net income.

11. The husband submitted that the balance of the fund holding the proceeds of the sale of the Hong Kong property should be used to apply the income to the wife for her support and that matter taken into account in the final hearing.

12. It is submitted that the Town S mortgage should be discharged and then each party be restrained from further encumbering any of the real estate.

13. In relation to paragraph 6 sought by the wife, additional amounts claimed by her should not be the subject of Court order. The husband asserts that he is not in a position to pay the mortgage on the Town S farm.

14. It is submitted that if the wife receives a payment of $150,000 which is not categorised then the Court should determine that she does not have a need for spouse maintenance with approximately $200,000 in capital available to her at this time.

15. In relation to the child support departure application it was conceded that the Registrar has not been served with a copy of the application sought by either party.

16. The husband contended that the children’s school fees should be met, at this time, from the funds standing to the credit of the parties in the joint account being funds remaining from the sale of the Hong Kong property.

Wife’s Written Submissions in Reply

1. In her written submissions the wife consents to an order, pending further order, that the parties cause to be paid from the controlled monies account the children’s school fees, cost of school uniforms, costs of school sports uniform, costs of school books and costs of L’s excursion to South Asia in September 2012 with the payment of those amounts to be characterised by the trial judge.

Determination

Spouse Maintenance and Lump Sum Capital Payment

1. The wife seeks a payment of $2,000 per week by way of periodic spouse maintenance together with payment of other incidental expenses including motor vehicle registration and insurance expenses, her mobile phone account, her life insurance premiums, the husband’s life insurance premiums, Medibank Private Health Cover at the top extra cover level for the family and repayment of her rental bond of $3,680.

2. This is an application pursuant to sections 72 and 74 of the Family Law Act 1975(Cth)(“the Act”). As such the applicant must first establish that she is unable to support herself adequately by reason of having the care and control of the children, who have not attained the age of 18 years, or by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason having regard to any relevant matter referred to section 75(2). The Court has power under section 74(1) of the Act to make such an order as it considers proper for the provision of maintenance in accordance with Part VIII of the Act.

3. Section 75(3) requires that in exercising jurisdiction under section 74 of the Act a Court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension allowance or benefit.

Assessment of Need

1. The assessment of the wife’s need starts with a consideration of Part N of her financial statement. She calculates a requirement of $615 per week. Part of that claim is a significant payment of $135 for computing expenses. The wife does not explain the reason for the extraordinary payment. In my view it would be inappropriate to have regard to that expense in this type of application where there is no capacity to explore the precise nature of an expense. Accordingly from item 60 I would accept the wife has expenses of $480 per week.

2. In addition to those expenses the wife has a rental payment of $922 per week. That property houses herself and the four children and therefore her share should be properly calculated as 20% of that sum. That represents $184 per week and when added to the item 60 expenses increases her weekly expenses to $664 per week. In addition, she has expenses for life insurance cover, car insurance and registration bring her total expenses to $719 per week.

3. The only income which the Court can have regard to in determining the wife’s needs is her entitlement to one half of the rental income from the B Street property at $160 per week and one half of the interest accruing on the investments of the balance of the proceeds from the sale of the Hong Kong property. She would also have interest accruing on the $45,000 still standing to the credit of her bank account. Those amounts, apart from the rental, are not capable of being quantified at this time.

The Husband’s Capacity to Pay

1. The husband’s financial statement sworn 14 May 2012 is not completed in a manner which is capable of being readily understood. However, I am prepared to accept that the expenses attributed at item 60 of his financial statement reasonably account for $1,800. The balance of his weekly expenses including his tax and the basic child support payment of $591, I accept at $4,481. All up his expenses therefore amount to $5,690 per week. He has a total income of $4,438 per week. He also pays the children’s school fees and other expenses associated with the children. If he is to be accepted then clearly his expenses exceed his income by a significant proportion and consequently he will have depended upon capital to meet his short fall which capital may have included part of the funds received by him from the sale of the Hong Kong property.

2. Clearly there is a need to support the wife who is not earning any income at this time. The source of funds to meet her need can be found in the following:

   a)The rental from the B Street property being approximately $330 per week;

   b)The interest accruing on the deposits held jointly for the parties in the controlled monies account; and

   c)A payment of capital from the parties’ controlled money account.

   Capital can be characterised by the trial judge at the conclusion of the hearing.

3. Likewise the husband is clearly not able to meet his expenses from his income, at this time. He seeks an order for a distribution to himself of some capital from the parties’ controlled monies account.

4. It will be some time before the Court can determine the parties’ financial disputes and consequently a sum of money payable to each which might allow them to meet their various commitments until such time as the Court can hear and determine the matter is required.

5. In relation to child support neither of the parties has given any notice to the Child Support Registrar of an application for departure. That is a prerequisite to the court hearing such an application. The parties have agreed that the children’s school fees should be paid from their joint funds held on deposit. The husband has appealed against the child support assessment and the wife has the capacity to also do that. There are prescribed pathways through the child support legislation to deal with parties’ dissatisfaction with assessments. At this time those pathways should be pursued rather than expending funds in payment of legal fees to have child support departure orders made.

6. I propose to make orders then that take all those matters into account.

Husband’s application to discharge the mortgage on the Town S property.

1. The husband has applied for an order that would see the mortgage on the Town S property discharged from the sale proceeds of the Hong Kong property. His case is that the wife had agreed to the discharge of that mortgage from that source however now she opposes the order. He says it makes good economic sense to pay out the mortgage as the interest charged on the mortgage is greater than the interest earned on the deposited fund.

2. The wife opposes the payout of the mortgage on Town S. She seeks that the interest bearing deposit currently held in the controlled monies account be used to fund her support. The parties have now agreed that the fund will also meet the schooling expenses for the children.

3. There is merit in the husband’s case. It would make good economic sense to discharge the mortgage if the interest being charged is greater than the interest the fund earns in the controlled monies account. There is also a tax impost to bear in mind arising from the earning of the interest.

4. On the other hand the husband has appealed against the Child Support Assessment currently levied against him. He seeks to have the amount he is required to pay reduced. He will now no longer be required to fund school fees and expenses from his income. He may be successful in having his child support payment reduced. I have found that the husband has no present capacity to meet spouse maintenance. In so assessing his ability I have considered as a cost the mortgage payment he is required to pay.

5. The greater the movement in the parties’ asset position at this time the more their ability to choose which assets they individually will seek to retain is reduced.

6. The parties will shortly partake in a conciliation conference and that may give rise to a resolution of all the financial and property matters.

7. The time the parties will be required to wait for a hearing of their property disputes will to some extent depend upon their ability to prepare their cases for hearing and to some extent by the delays in the court. They would expect a hearing date later this year or early next year were they to be docketed to a judge now.

8. Once the husband’s child support appeal is determined it may be appropriate to consider the impact upon both parties of discharging the Town S mortgage from the controlled money interest bearing account fund if they are still in dispute about this matter.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 1 June 2012.

Associate: 

Date:  1 June 2012