Glenning and Simons & Ors

[2016] FamCA 504

FAMILY COURT OF AUSTRALIA

GLENNING & SIMONS AND ORS [2016] FamCA 504

FAMILY LAW – PROPERTY – Sale of property – interim application by the husband and the husband’s parents for sale of the former matrimonial home and the application of the proceeds towards the payment of an alleged loan from the husband’s parents to the husband and the wife – where the wife claims the alleged loan was a gift – issues as to the circumstances in which a purported loan agreement was signed, interest payable under the loan and the quantum of the loan – application for sale of property refused

FAMILY LAW – SPOUSAL MAINTENANCE – Application by the wife for interim periodic and non-periodic spousal maintenance – where the wife is unable to support herself adequately – capacity of the husband to pay spousal maintenance considered – interim orders made for non-periodic and periodic spousal maintenance

Family Law Act 1975 (Cth)

Strahan and Strahan (Interim Property Orders) [2009] FamCAFC 166; (2011) FLC 93-446

APPLICANT: Ms Glenning

FIRST RESPONDENT: Mr Simons

SECOND RESPONDENT: Mr A Simons

THIRD RESPONDENT: Ms B Simons

FILE NUMBER: MLC 11963 of 2015

DATE DELIVERED: 22 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 8 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Blackwood Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Rubera

SOLICITOR FOR THE FIRST

 RESPONDENT:

Sebastian Rubera & Associates Pty Ltd

COUNSEL FOR THE SECOND AND THIRD

RESPONDENTS:

Mr Isles

SOLICITOR FOR THE SECOND AND

THIRD RESPONDENTS:

Sebastian Rubera & Associates Pty Ltd

Orders

(1)That pursuant to r 6.03 of the Family Law Rules Cth (2004) Mr A Simons and Ms B Simons be joined as parties to these proceedings.

(2)That until further order the wife have the sole use and occupation of the property situate at C Street, Suburb D in the State of Victoria (“C Street”).

(3)That until further order the husband pay or cause to be paid by way of spousal maintenance the following expenses in relation to C Street as and when they fall due:-

(a)Instalments of the mortgage;

(b)Municipal and water rates; and

(c)Home and contents insurance.

(4)That until further order the husband pay or cause to be paid to the wife by way of periodic spousal maintenance the sum of $1,040 per month, to be paid on the first day of each month by electronic bank transfer into an account nominated by the wife in writing.

(5)That the Application in a Case filed 26 May 2016, the interim orders sought in the husband’s Response to Initiating Application filed 22 March 2016 and the interim orders sought in the wife’s Reply filed 6 June 2016 be otherwise dismissed.

(6)That all extant applications be placed in the list of cases awaiting allocation to a Judicial docket.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Glenning & Simons and Ors 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 MELBOURNE

FILE NUMBER: MLC 11963  of 2015

Ms Glenning

Applicant

And

Mr Simons

First Respondent

And

Mr A Simons

Second Respondent

And

Ms B Simons

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter came before me in a Judicial Duty List on 8 June 2016. 

2. That day, the wife, Ms Glenning sought orders that:-

   ·She have sole use and occupation of the former matrimonial home at C Street, Suburb D (“C Street”);

   ·That until further order the husband pay by way of spousal maintenance:-

   (a)Instalments of the mortgage as and when they fall due with respect to C Street;

   (b)Municipal and water rates in respect of C Street;

   (c)Home and contents insurance in respect of C Street; and

   (d)Periodic maintenance in the sum of $2,973 per month.

3. Although the wife sought orders for injunctions and litigation funding in her Reply filed 6 June 2016, no submissions were made on her behalf with respect to those applications.  They were not matters pressed before me.  Accordingly, I will dismiss those parts of the wife’s application.

4. The husband, Mr Simons sought orders for the sale of C Street and that the proceeds of sale be applied towards the discharge of an alleged loan from his parents, the second and third respondents, in the sum of $250,000 and that the balance then remaining be held on trust pending further order.  It was conceded on behalf of the husband that in the event that that application was unsuccessful, the wife and children would continue to live in the property at C Street until further order.  The husband opposed the orders sought by the wife with respect to interim spousal maintenance.

5. The second and third respondents, being the husband’s parents, Mr A Simons and Ms B Simons sought orders in the terms of their Application in a Case filed 26 May 2016.  That application sought that they be joined as parties to the proceedings and also sought orders for the sale of the property at C Street, the re-payment of the loan said to be owing to the second and third respondents and otherwise the balance remaining to be divided by agreement between the husband and the wife or by judicial determination.  Again it was conceded on behalf of the second and third respondents that in the event that no order was made for the sale of C Street that the wife and the children could continue to occupy that property until further order.

6. That the second and third respondents be joined as parties to the proceedings was not in issue.  Given the issues between the parties with respect to the alleged loan agreement, I am satisfied that it is appropriate that I make orders to that effect.

Material Relied Upon

1. The wife relied upon the following material:-

   ·Reply filed 6 June 2016;

   ·Financial statement of the wife filed 6 June 2016;

   ·Affidavit of the wife filed 6 June 2016; and

   ·Affidavit of Mr E filed 7 June 2016.

2. In addition the wife relied upon Exhibits W1 to W6 inclusive being:-

   ·Notice of Assessment for the husband for year end 30 June 2015 (Exhibit W1);

   ·Profit and Loss statement for the husband for year end 30 June 2015 (Exhibit W2);

   ·NAB Internet Banking transaction history for account number … for period 7 March 2016 to 31 March 2016 inclusive (Exhibit W3);

   ·NAB Internet Banking transaction history for account number … for period 14 April 2016 to 1 June 2016 inclusive (Exhibit W4);

   ·NAB Internet Banking transaction history for account number … for period 22 March 2016 to 1 June 2016 inclusive (Exhibit W5); and

   ·Cheque stub for account number … dated 2 August 2007 (Exhibit W6).

3. The husband relied upon the following material:-

   ·Response to Initiating Application filed 22 March 2016;

   ·Financial Statement of the husband filed 22 March 2016;

   ·Affidavit of the husband filed 22 March 2016; and

   ·Affidavit of the husband filed 8 June 2016.

4. During his submissions the husband’s lawyer tendered the wife’s pay slips for the period April – May 2016 (Exhibits H1 and H2).

5. The second and third respondents relied upon the following material:-

   ·Submissions filed 8 June 2016;

   ·Application in a Case filed 26 May 2016;

   ·Affidavit of Mr A Simons filed 26 May 2016; and

   ·Affidavit of Mr A Simons filed 8 June 2016.

6. The matter was conducted on the papers. Each party relied upon the material referred to above and their counsel’s oral submissions. Given the nature of the hearing, contentious facts cannot be determined without evidence being properly tested. Accordingly, in determining the matter, I have relied upon those facts which are agreed or not in issue. The standard of proof is the balance of probabilities in accordance with the provisions of s 140 of the Evidence Act 1995 (Cth).

Background

1. The wife is aged 47 years and lives at C Street with the two children of the marriage.  She is engaged in part-time employment.  In addition to her income from that employment the wife receives family tax benefits.  Her Financial Statement filed 6 June 2016 discloses that the wife’s income from her employment is approximately $818 gross per week.

2. The husband is aged 42 years.  He is a health care professional and conducts his own business.  The husband earns income from his work and also from rent received from other health practitioners who sub-let rooms from him.  It was conceded by the husband’s lawyer during the course of his submissions that the husband’s income from all sources is approximately $3,543 per week (and not $3,200.00 per week as deposed to in the husband’s Financial Statement filed 22 March 2016).

3. The husband lives in rental accommodation in Suburb F.  The wife alleges that the husband has re-partnered and is living in a domestic relationship and further that the husband has failed to disclose his partner’s income and expenses.  The husband does not admit the allegation that he is in a domestic partnership.  I am unable to make any findings with respect to that matter at this interim hearing, where the evidence is untested.   

4. The parties commenced cohabitation in 2002 and married in 2007.  Separation occurred in April 2015. 

5. There are two children of the marriage, G, aged 12 years and H, aged 10½ years.  The children live with the husband and the wife on a week-about basis. 

6. The wife commenced proceedings by way of Initiating Application filed 21 December 2015. That application seeks orders for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The wife did not particularise the final relief sought by her in her Initiating Application.

7. In her Reply filed 6 June 2016 the wife seeks orders for a transfer to her of the husband’s interest in the property at C Street as part of her final property settlement.

8. The husband filed his Response to Initiating Application on 22 March 2016.  The final relief sought by him included an application for the sale of C Street and the division of the proceeds of sale after the discharge of the alleged loan to his parents upon the following basis:-

   ·60 per cent to the wife;

   ·40 per cent to the husband.

9. The parties attended a Case Assessment Conference on 29 March 2016.  That day orders were made listing the matter in the Judicial Duty List for determination of the issues with respect to interim maintenance and sale of the property.

Applications To Sell C Street

1. The parties have a modest pool of assets, the two principal assets comprising of their interest in the property at C Street and the husband’s business.  There is no evidence before me as to the current value of those interests, although the husband and the wife both estimate the value of C Street to be approximately $900,000.  The husband’s business is yet to be valued; the husband alleges it has a value of $30,000 and the wife does not provide an estimate as to its value, it being her position that there needs to be further disclosure by the husband and a valuation of the interest undertaken by a single expert valuer.

2. It is common ground between the parties that they purchased C Street in 2007 for the sum of $640,000. It is also common ground that the husband’s parents advanced the sum of $64,000 to assist with payment of the deposit and that they provided a further cheque in the sum of $116,360 at settlement. 

3. The husband’s parents allege that those monies, together with a further sum of approximately $69,000 were advanced to the husband and the wife by way of loan.  They rely upon a document which purports to be a loan agreement signed by the husband and wife and the second and third respondents which is dated “July, 2007”.  The husband accepts those allegations.

4. The wife disputes the allegation that the money advanced by the second and third respondents is a loan re-payable to them.  The wife alleges that the monies were advanced by way of gift.  The wife addresses the circumstances around the purchase of the C Street property at paragraph 25 of her Affidavit filed 6 June 2016.  Further, at paragraph 93 of that Affidavit the wife deposes as to the circumstances in which she executed the alleged loan agreement, stating that she did not read the document carefully and received no advice prior to executing the document.  She also deposes that at the time of execution of the document the husband said to her words to the effect of “you know that we will not have to pay it back”.  The wife alleges that the document was presented to her for signing in November 2007, being approximately four months after settlement of the purchase of C Street. 

5. The second and third respondents caused a caveat to be lodged over the title to C Street on 24 April 2015.  The grounds of claim relied upon by them is that there is an agreement with the registered proprietors to the property dated 1 July 2012. 

6. As noted earlier, the alleged loan agreement annexed to the Affidavit of Mr A Simons filed 26 May 2016 is dated “July, 2007”. 

7. It is alleged by the second respondent in his Affidavit filed 26 May 2016 that the settlement of the purchase of C Street occurred on 20 September 2007 and that the monies were advanced by he and his wife in anticipation of that settlement.  He deposes at paragraph 10 of that Affidavit that the alleged loan agreement was prepared and delivered to the husband prior to the settlement of C Street.  In support of that position he relies upon an email sent by the conveyancing lawyers to the husband dated 20 July 2007 which attaches a final loan agreement for execution and return.

8. In her Affidavit filed 6 June 2016 the wife annexes at AG-1 a copy of the contract note for the purchase of C Street.  That contract note indicates that settlement of the purchase was to occur on 20 July 2007, being the date the draft loan agreement was emailed to the husband.  The wife deposes in that Affidavit that indeed settlement of the purchase occurred that day.  The wife also relies on the letter received from the conveyancing solicitor dated 21 August 2007 (Annexure AG-1).  That letter confirms that settlement of the purchase of C Street occurred on 20 July 2007. 

9. Having regard to that evidence it would appear unlikely that the alleged loan agreement was executed prior to prior to the settlement of the purchase of C Street.  Further, I am satisfied, having regard to the second respondent’s Affidavit filed 26 May 2016, that at the time of the settlement of the purchase, the second and third respondents had advanced to the husband and the wife a total of $180,360.58, not $250,000 as is provided in the alleged agreement. 

10. I note that the second respondent alleges in his Affidavit filed 8 June 2016 that a further sum of $69,634.00 was advanced by him and the third respondent to the husband and the wife on 2 August 2007, which based upon the wife’s material would have been after settlement of the purchase.  The wife does not admit that allegation.

11. Following the separation of the husband and the wife, the second respondent caused a demand to be served upon the husband and the wife seeking re-payment of the alleged loan of $250,000 together with interest alleged to have accrued thereon.  The second respondent alleges that a total of $185,717.45 is the amount of interest payable on the alleged loan (Annexure HSS-7). 

12. The second respondent relies upon the alleged loan in support of the application for a sale of C Street. 

13. It is evident from the material to which I have referred that there are serious factual issues to be determined, including:-

    ·the circumstances in which the alleged loan agreement was executed;

    ·the quantum of any loan;

    ·the amount of interest payable under the alleged loan (if any).

14. I am unable to make findings with respect to those issues at an interim hearing where the evidence of the parties is unable to be tested.  The proceedings were listed before me in a busy Judicial Duty List.  Until such time as the evidence of all parties with respect to the above identified issues has been tested, in my view there can be no determination of the claims of the second and third respondents. 

15. A perusal of the alleged loan agreement highlights some of the issues to be determined at trial.  For example:-

    ·The question of whether the agreement is enforceable in circumstances where it is dated “July 2007” and un-stamped;

    ·The purported agreement provides that the borrower shall pay interest at a rate of seven per cent payable quarterly in arrears.  The first demand for payment of interest under the alleged agreement did not occur until 14 December 2015.  Hence, the question of liability for interest which is said to have accrued since 2007 is a matter to be determined;

    ·It is asserted on behalf of the second respondent that the alleged agreement provides to him a second mortgage over the property at C Street.  Reliance is placed on paragraph 3.6 of the document which purports to incorporate “Special Covenants” into the alleged agreement.  However, the copy of the agreement annexed to the second respondent’s Affidavit does not include any “Special Covenants”.  The Schedule to the document, at page 11,  notes the “Special Securities” to the alleged agreement and provides that:

    The loan is secured by a Caveat and a Second Mortgage from the borrowers over the property…

    The borrower agrees that all legal fees incurred in preparing mortgage documents will be borne by the borrower. 

    Notwithstanding that clause, no mortgage documents were ever prepared and the caveat referred to therein was not lodged until April 2015. 

16. In my view, these anomalies highlight that there are serious factual and legal issues with respect to the purported loan agreement to be determined at trial. 

17. The Court has powers to make interim property orders pursuant to s 79 of the Act. In Strahan and Strahan (Interim Property Orders) [2009] FamCAFC 166; (2011) FLC 93-446 (“Strahan”) it was recognised by the Full Court that there may be circumstances which justify the exercise of the power pursuant to ss 79 and 80(1)(h) prior to the final hearing. Boland and O’Ryan JJ note at paragraph 118 of their judgment that the approach to be taken to the hearing of an application for an interim property order is as follows:-

    … There are two stages to the hearing of such an application where the power is to be exercised pursuant to s 80(1)(h) of the Act. This is recognised by the fact that although the power under s 79 should ordinarily be exercised on a once only basis, “circumstances may arise before there can be a final hearing” where the power is exercised. Thus the first step is to resolve whether to exercise the power before a final hearing and if it is resolved to do so then the second step involves the exercise of that power.

18. The circumstances in which the Court might exercise its power to make orders for partial property settlement was considered by the Full Court at paragraph 132; whilst acknowledging that it is preferable that there be one final hearing in s 79 proceedings the Court concluded:-

    … in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

1. Having regard to the clear dispute between the parties as to whether the monies advanced by the second and third respondents was a loan or a gift, in my view it would be premature to exercise the power to make interim property orders at this time.  That view is bolstered in circumstances where the wife seeks to retain the property at C Street as part of her final property settlement.  Until such time as there has been a determination of whether the husband and the wife have a liability to the second and third respondents, the question of the entitlements of the husband and the wife cannot be determined. 

2. In the circumstances, I am satisfied that it would be premature to exercise the powers pursuant to s 79 at this time. To do so would be to defeat the wife’s claim before a hearing of the matter where all of the relevant evidence can be placed before the Court and tested. Accordingly, I will dismiss the applications of the second and third respondents and the husband seeking a sale of C Street.

Spousal Maintenance

1. Section 72 of the Act provides that a party to a marriage is liable to maintain the other party to the extent that that first mentioned party is reasonably able to do so, if and only if that other party is unable to support himself or herself adequately for one of the reasons set out therein.

2. Section 74 of the Act provides that the court may make such order as it considers proper for the provision of maintenance. The matters to be taken into account in determining an application for spousal maintenance are set out in s 75(2) of the Act.

3. Hence, a court can only make an order for spousal maintenance if the party claiming maintenance is unable to support herself or himself adequately.  Adequately is a relative concept which varies from case to case; the standard of living which the parties enjoyed prior to separation is a relevant consideration (Bevan and Bevan (1995) FLC 92-600; Mitchell and Mitchell (1995) FLC 92-601).

4. The wife bears the onus of proof with respect to her application for interim spousal maintenance. 

5. The wife seeks orders that the husband continue to meet payments under the mortgage together with rates and insurance in respect of C Street.  She further seeks an order that the husband pay to her periodic maintenance in the sum of $2,973 per month. 

6. In support of that application, the wife relies upon her Financial Statement filed 6 June 2016.  That document discloses the wife’s income at $818 per week.  Initially, the husband sought to challenge the wife’s income, asserting that she had understated it in her Financial Statement.  However, the husband’s lawyer abandoned those allegations during the course of his submissions when an examination of the wife’s payslips (Exhibits H1 and H2) disclosed that the wife had in fact likely overstated her income.

7. The wife alleges her expenses total approximately $1,571 per week.  Those expenses include the sum of $404 attributable to expenses for the children.  Hence, the wife’s weekly expenses are approximately $1,167 per week.  Therefore, she has a shortfall of approximately $349 per week (or $1,512 per month) between her income and expenses.

8. The husband sought to challenge some of the wife’s expenses.  In particular, he was critical of her claim for rates ($67 per week), motor vehicle registration ($15 per week) and music lessons for the children, they being expenses which have either been paid (in the case of the motor vehicle registration) or are not currently being paid by her. 

9. The wife acknowledged that she was not paying the rates or cost of music lessons in her Financial Statement.  I have already excluded the cost of the music lessons from the wife’s claimed expenses as they are expenses related to the children.  The wife seeks an order that the husband meet the costs of the rates.  Accordingly that is an amount I will deduct from her expenses.  I will also deduct the cost of the motor vehicle registration from her claimed expenses as this is an amount that has been paid.  After making those adjustments the shortfall between the wife’s income and expenses is $267 per week.

10. Having regard to the shortfall in the wife’s income as against her expenses as detailed herein, I am satisfied that the wife is not able to support herself adequately.

11. The wife sets out the history of the husband’s financial support since separation in her Affidavit filed 6 June 2016.  At paragraph 48 of that Affidavit she deposes as to the arrangements implemented in August 2015.  At that time, the husband proposed to meet expenses in relation to C Street, including the mortgage payments, internet, landline, house insurance and rates and in addition to pay to the wife the sum of $285 per week.  That arrangement continued until 14 November 2015. 

12. The wife deposes at paragraph 51 of her Affidavit that in October 2015 the husband ceased meeting payments in respect of her mobile telephone and Eastlink tolls as well as car insurance, home internet and landline for C Street. 

13. On 4 November 2015 the wife was informed by the husband’s lawyers that the husband proposed to implement a new arrangement for interim support which included that the husband pay mortgage payments, house insurance, private health cover and the sum of $285 per week by way of child support.  The wife further deposes that as a result of the husband’s changes to the interim financial arrangements she caused an application to issue seeking final property orders in December 2015.  She did not file an application seeking interim spousal maintenance at that time.

14. In February 2016 the husband informed the wife through his lawyers that he would no longer make the periodic payment of $285 per week.  Since 29 February 2016 the husband has paid interest-only in respect of the mortgage liability secured against C Street.

15. The wife asserts that the husband has the capacity to continue to pay the expenses claimed and periodic maintenance.  She relies upon the husband’s Financial Statement filed 22 March 2016 in support that submission.  It was submitted by the wife that the income amount set out in the financial summary of Part B of that document, which discloses a weekly income of $3,200 is inaccurate.  In support of that submission reliance was placed upon  Part O of the husband’s Financial Statement where the husband deposes as follows:-

    The Respondent Husband estimates that his gross income for the year ending 30^th June 2016 shall be the sum of $184,270.00…

16. On the basis of that evidence it was submitted that the husband has an income of $3,543 per week.  The husband’s lawyer sought his client’s instructions in relation to the inconsistency in the Financial Statement and confirmed during his submissions that in fact the appropriate amount to allow for the husband’s income is $3,543 per week.

17. It was submitted on behalf of the wife that the husband had over-stated some of his expenses. The total personal expenses claimed by the husband at Part B of his Financial Statement are $3,813 per week.  At Part G of his Financial Statement the husband claimed an average weekly amount of $1,034 in respect of his income tax liability.  However, his income tax assessment for the year ending 30 June 2015 (Exhibit W1) discloses that in fact the husband’s taxation liability for that period was $45,334 per annum, or $871 per week.  Hence, it was alleged that the husband had overstated his income tax liability by $163 per week.  The husband’s lawyer conceded that this was the case during the course of his submissions. 

18. Further, the wife alleged that notwithstanding the husband’s claim at paragraph 25 of Part G of his Financial Statement that he has a liability for life insurance in the sum of $128, no such payment is made by the husband from his income and in fact the premiums for his life insurance policy are paid by his superannuation fund.  The husband disputed that allegation.  In circumstances where the evidence cannot be tested I am unable to make a finding with respect to that issue.

19. At paragraphs 26, 27 and 28 of Part G of his Financial Statement the husband claimed expenses for his motor vehicle insurance, motor vehicle registration and lease on his motor vehicle.  The claimed expenses totalled $152.  It was alleged on behalf of the wife that those expenses were in fact paid by the husband’s business and were not expenses borne by him personally and therefore should not be included in his Financial Statement.  This was a matter also conceded on behalf of the husband by his lawyer.

20. At Part N of the husband’s Financial Statement he claims chemist and pharmaceutical expenses of $115 per week.  It was submitted on behalf of the wife that due to the husband’s profession those pharmaceutical products are sourced and paid for by the husband’s business and not the husband personally.  This was also conceded by the husband during his lawyer’s submissions. 

21. As a result of the concessions made on behalf of the husband the following amounts should be deducted from his claimed expenses:-

    ·Income tax  $163

    ·Motor vehicle expenses  $152

    ·Pharmaceutical expenses  $115

    TOTAL           $430

22. Accordingly, the husband’s expenses, taking into account those adjustments are approximately $3,383 per week. 

23. The wife also challenged the husband’s claim at Part N of his Financial Statement in respect of $50 per week for “other necessary commitments” and $100 per week for holidays.  No submissions were made in response to that challenge.  Having regard to the parties’ current financial circumstances I am satisfied that provision for those expenses pending the final hearing is unreasonable and will disallow those claimed expenses.

24. Having regard to those matters I am satisfied that the husband’s expenses total approximately $3,233 per week and that he has a surplus of income over expenditure of approximately $310 per week. 

25. The husband makes allowance in the expenses claimed in his Financial Statement for payment of the mortgage in the sum of $666 per week and the insurance on the home of $34 per week.  Hence, I am satisfied that he has the capacity to continue to meet those payments. 

26. The rates payable on C Street are approximately $67 per week.  I am satisfied that the husband has the capacity to meet that expense.

27. The wife submits that the husband’s income is in fact greater than that disclosed by him.  She relies upon the husband’s disclosed bank statements to support that submission.  In particular she points to his recent expenditure on his Visa card numbered … (Exhibit W4) which discloses expenditure by the husband on 12 May 2016 and 19 May 2016 on bicycles, that expenditure totalling $3,349.  In the same month the husband spent a total of $3,349.33 at Ikea.  It was submitted on behalf of the wife that expenditure at that level is not consistent with the husband’s position that he cannot afford to continue to support the family at the level sought by the wife.

28. It was conceded on behalf of the husband that he had in fact expended the amounts alleged at Ikea and on bicycles.  It was submitted on behalf of the husband that the purchases at Ikea were in relation to bedding and a wardrobe and that the husband’s parents had advanced the money to enable him to purchase a mountain bike for his birthday. 

29. The wife’s counsel was also critical of the manner in which the husband has dealt with the parties’ assets in the post-separation period.  In particular, the wife relied upon the husband’s sale of shares held by him in CommSec on 13 May 2016.  The proceeds from the sale of those shares totalled approximately $62,000.  It was conceded by the husband’s lawyer that the husband had sold those shares without prior notice to the wife.  The sale proceeds were then applied by the husband in pre-payment of his taxation liabilities, payment of $15,000 to the husband’s parents, purportedly in repayment of a loan, and a further $10,000 paid to the husband’s lawyer.

30. Whilst there may be some force in the criticisms of the husband as to the manner in which he has dealt with the parties’ shares, ultimately this is a matter for consideration at trial. 

31. Nonetheless, having regard to the concessions made on behalf of the husband as to his income and expenses, coupled with the findings I have made with respect to the husband’s claimed expenses I am satisfied that he has the capacity to meet the payments in respect of C Street as sought by the wife.  After deduction of the rates liability from the amount I have found the husband has by way of surplus, the husband has approximately $243 per week.  Accordingly, I am satisfied that the husband has the capacity to pay periodic spousal maintenance to the wife in the sum of $240 per week or $1,040 per month.

32. Accordingly, I make orders as follows:-

    (1)That pursuant to r 6.03 of the Family Law Rules Cth (2004) Mr A Simons and Ms B Simons be joined as parties to these proceedings.

    (2)That until further order the wife have the sole use and occupation of the property situate at C Street, Suburb D in the State of Victoria (“C Street”).

    (3)That until further order the husband pay or cause to be paid by way of spousal maintenance the following expenses in relation to C Street as and when they fall due:-

    (a)Instalments of the mortgage;

    (b)Municipal and water rates; and

    (c)Home and contents insurance.

    (4)That until further order the husband pay or cause to be paid to the wife by way of periodic spousal maintenance the sum of $1,040 per month, to be paid on the first day of each month by electronic bank transfer into an account nominated by the wife in writing.

    (5)That the Application in a Case filed 26 May 2016, the interim orders sought in the husband’s Response to Initiating Application filed 22 March 2016 and the interim orders sought in the wife’s Reply filed 6 June 2016 be otherwise dismissed.

    (6)That all extant applications be placed in the list of cases awaiting allocation to a Judicial docket.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 22 June 2016.

Associate: 

Date:  22 June 2016