Green and Green

[2009] FamCA 660

FAMILY COURT OF AUSTRALIA

GREEN & GREEN [2009] FamCA 660

FAMILY LAW – PRACTICE AND PROCEDURE – Interim children and property issues

APPLICANT: Ms Green

RESPONDENT: Mr Green

FILE NUMBER: MLC 5160 of 2009

DATE DELIVERED: 25 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 25 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T.J. Puckey

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Ms B.A. Tulloch

SOLICITOR FOR THE RESPONDENT: Carew Counsel

Orders

BY CONSENT IT IS ORDERED

1. That the parties attend for a Conciliation Conference at 9.15am on 2 September 2009.

1. That in the event that the parties cannot agree via their solicitors as to the values of the following:

(a)     H property;

(b)    R property; and

(c)    the Husband's business,

(d)    on or before 4pm on 16 July 2009 a jointly appointed expert be instructed to value the said assets on or before 26 August 2009, the costs of the valuations to be shared equally between the parties.

1. That on or before 4pm on 16 July 2009 the parties each make full and frank disclosure of all documents in the possession of each of them including but not limited to the documents referred to in paragraph 11 of the Wife's Initiating Application filed 15 June 2009 and paragraph 7(a) – (f) of the Husband's Response filed 25 June 2009.

1. The parties and the children attend upon Mr D, psychologist, for the purposes of the preparation of a family report; the said report to be released on or before 26 August 2009 and the cost of the said report to be shared equally between the parties.

1. That until further order the Wife have sole use and occupation of the real property situate at H and further during such right of occupation pay all costs of the said property save for the mortgage.

1. That until further order the Husband have sole use and occupation of the real property situate at P and further during such right of occupation pay all costs of the said property.

1. The parties each forthwith do all such acts and things and sign all such documents as may be required to repay in full the following liabilities:

7.1        the house insurance in respect of H property (E$1,100); and

7.2        the Wife's HECS debt (E$2,400);

7.3        National Irish Bank MasterCard;

7.4        NAB MasterCard;

7.5        NAB car loan for Wife's Holden Zaffira;

7.6        GE loan for computer in possession of the children;

7.7        the costs of new queen size or double beds for the children,

such liabilities to be met from:

(a)     NAB Account Number …3930 ("The [P property] Account"); and

(b)    Bank of C Account Number … (which the Husband warrants contains approximately ₤16,000 sterling),

the balance of the said accounts to thereafter be divided equally between the parties.

1. That until further order the Husband make all payments as and when the fall due for the mortgages secured against the real properties situate at H and P.

1. That until further order the Husband pay until the end of the 2009 school year all school fees and expenses arising from the children C born … April 1993 and J born … May 1995 attending S School including extra expenses such as school uniforms, sports uniforms, excursions, school camps, sports fees, books, materials and computer levies.

1. That until further order the Wife pay until the end of the 2009 school year all school fees and expenses arising from the child N born … September 1997 attending Y Primary School including extra expenses such as school uniforms, sports uniforms, excursions, school camps, sports fees, books, materials and computer levy.

1. That until further order the Husband pay all costs associated with maintaining the current private health insurance family policy for himself, the Wife and the children at the current level. 

NOT BY CONSENT

1. That the parties each forthwith do all such acts and things and sign all such documents as may be required to draw down from the mortgage secured against H property the following sums:

(a)     $40,000 for the Wife; and

(b)    $40,000 for the Husband,

the characterisation of such payments to be determined by the Trial Judge.

BY CONSENT

1. That the Husband be permitted to forthwith collect his personal items and grandfather's dining table from the property at H property at a time to be agreed between the parties via their solicitors.

1. That until further order each party be and is hereby restrained by themselves and by their servants and agents from disposing of, encumbering or otherwise dealing with any of the assets or resources of either party save and except:

in the ordinary course of the Husband's business; and

to meet day to day expenditure and commitments pursuant to these orders,

without the prior written consent of the other party and in all cases keeping the other party fully informed of such dealings.

1. That the parties by themselves and by their servants and agents be restrained from:

(a)     abusing, insulting, belittling, rebuking or otherwise denigrating the other in the presence of the children; and

(b)    discussing these proceedings or the contents of any documents filed in or in connection with these proceedings in the presence or hearing of the children (or any of them).

Or from permitting any other person to do so including family members.

NOT BY CONSENT

1. That by way of spousal maintenance the Husband pay to the Wife's NAB Account Number …4524 the sum of $236 per week.

BY CONSENT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. Certify for Counsel.

NOTATION

1. That the interim orders have been made today on the basis of the current child support assessment being continued and that the payments ordered pursuant to these orders shall not be credited against the current child support assessment.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5160 of 2009

MS GREEN

Applicant

And

MR GREEN

Respondent

REASONS FOR JUDGMENT

1. The parties separated towards the latter part of last year.  They have three children who are presently living with their mother.  I do not yet know a lot about the arrangements in relation to them except that, sadly, at this stage they do not appear to be spending any significant time with their father, and quite properly arrangements have been made for a Family Report to try to resolve that aspect.

2. The parties also have pending property proceedings.  I have been handed quite detailed interim financial orders.  Most of the orders are agreed.  There are only two issues that now remain for me. 

3. The case will have a Conciliation Conference in just a couple of months’ time, on 2 September.  In the meantime, pursuant to the orders that are agreed, the parties will be doing all the sensible things that need to be done for full and frank disclosure and proper valuations.

4. The two remaining issues for me are: 

   (1) Whether the husband will pay the sum of $236 per week by way of spousal maintenance for the wife; and

   (2) whether a mortgage drawdown of $80,000 as agreed between the parties should be distributed as to $40,000 to each party as the husband proposes, or $60,000 to the wife and $20,000 to the husband as the wife proposes.

5. I shall deal first with the spousal maintenance issue.  There is no question, on the material at this stage, that the wife appears to have genuine need, although she is working.  She works as a teacher, but her earnings are very substantially less than the husband's earnings from his IT business.  She earns approximately $64,000 per year. 

6. His earnings are much harder to clarify at this point.  He claims that he earns about $145,000 a year, although the business receives about $200,000 a year.  He is in fact the business and it is hard to determine the overheads.  He runs his business from his home.  In fact, he mostly works in the clients' premises.  So it is quite difficult to determine his income precisely: it is not necessarily just the amount he chooses to pay himself by way of salary.

7. The husband will in any event contribute to some of the wife’s expenses.  Otherwise, despite the interpretation that Ms Tulloch for the husband has urged me to take of her client's own affidavit, I am satisfied that he has made it clear (in the combination of paragraphs 30 and 31, particularly when read with his financial statement), that he envisaged that his ongoing commitment would be to the additional sum of $236 per week.  That small amount for him is an amount that will be of significant assistance to the wife and I propose ordering that it continue until further order.

8. I emphasise that the orders today are short term, made only until further order, and the various sums to be paid will be categorised by the trial Judge in due course.

9. Turning then to the drawdown of $80,000, I am satisfied that the husband has committed to substantial payments in committing to pay the mortgages, the health insurance, and the private school fees for the two boys as well as for their extracurricular needs.  Together, those sums plus the assessed child support, come to about $84,000 per annum.  In those circumstances, with all the uncertainties around the actual income that he enjoys, I am satisfied that it is fair at this stage for each party to have access to $40,000 to be characterised, ultimately, by the trial Judge. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  25 June 2009