Harper and Pint (No 2)

[2010] FamCA 571

FAMILY COURT OF AUSTRALIA

HARPER & PINT  (NO. 2) [2010] FamCA 571

FAMILY LAW – PROPERTY – Interim

Family Law Act 1975 (Cth)

Strahan and Strahan [2009] FamCAFC 196

APPLICANT: Mr Harper

RESPONDENT: Ms Pint

FILE NUMBER: MLC 8394 of 2009

DATE DELIVERED: 28 June 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Cronin

HEARING DATE: 28 June 2010

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That P Fencing Pty. Ltd. pay to the applicant mother MS PINT, the deposit held by them in respect of the property of the parties and upon receipt by Ms. Pint of such sum, it be paid into the mortgage encumbering the said property by the Westpac Banking Corporation.

2. That paragraph 5 of the orders made on 20 January, 2010 is discharged. 

3. That immediately being in a position to do so, the father MR HARPER lodge with the Australian Taxation Office his 2009/2010 Income Tax Return and upon receipt of the anticipated refund, the sum be immediately paid to the mother who shall thereupon immediately pay the received sum into the mortgage account with the Westpac Banking Corporation.

4. That the payments in respect of the Australian Taxation Office refund and the return of the deposit by P Fencing Pty. Ltd. be matters for determination by the trial judge. 

5. That the mother provide P Fencing Pty. Ltd. with a copy of these orders forthwith. 

6. That the application of each party filed respectively on 1 June, 2010 be otherwise dismissed. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8394 of 2009

MR HARPER

Applicant

And

MS PINT

Respondent

REASONS FOR JUDGMENT 

1. Before me in the duty list I have two applications filed on the same day.  This is part of an ongoing dispute which needs to be resolved.  The matter came before the court on 20 January 2010 at which stage Barry J made a number of orders relating to interim financial arrangements associated with mortgage payments and mortgage obligations. 

2. Subsequent to that day, a further application came before me in February 2010 at which Mr Harper, who is one of the applicants today, gave evidence.  At the time, he was cross‑examined about what had happened to some money which Barry J had been told was in his possession, and he conceded at the time that his counsel had told his Honour something that was just not true.  That was not a reflection on counsel but on Mr Harper.  It transpires that the money that Barry J anticipated would be used was, in fact, spent at a casino.  At that time I made various orders. 

3. Nothing has advanced and the parties are back before the court today.  The mother’s application seeks a variety of orders, mostly to enforce the orders of Barry J but otherwise to vary them.  She seeks that the father’s wages be garnished to pay the mortgage payments which are a requirement under paragraphs 6, 7 and 8 of the orders of 20 January 2010. 

4. The father concedes that he is in arrears.  His explanation, as he gave in evidence, is that he is now working on a casual basis as a security officer and he cannot guarantee what sort of money he will be receiving.  There is no evidence to the contrary in relation to that and I accept that his income is somewhat sporadic.  He has said in evidence that he is now behind in his rent. 

5. There is a dispute about whether the rent is an appropriate sum having regard to the fact that he is living by himself.  There is also a child dispute in this case and he has to have some reasonable accommodation in which to house his daughter even if, in fact, it is not overnight. 

6. One of the orders that Barry J made was that the mother contribute $175 per week to the Westpac Bank in reduction of the mortgage relating to the disputed property.  It seems logical that as the mortgage is currently in advance and the husband is not making any contributions, that that order should be discharged until the trial.  That way both parties will be carrying the combined loss as the mortgage increases or the credit decreases.  I propose to discharge paragraph 5 of the orders. 

7. A second order sought by the mother is that the father’s car be made available for her sole use, pending the final hearing and the dispute as to ownership.  In addition, any insurance be then cancelled and be paid into the mortgage account.  The father gave evidence that he is working on a number of sites as a security officer and public transport just does not get him there.  His solution was that if he did not have a car to get to work, then he would be ultimately on Newstart Allowance.  That does not seem to advance the situation any further.  I do not have any evidence other than the admission against interest by the father as to the value of the car and in the circumstances I would be hesitant to make that sort of order either on an interim basis or on a final basis. 

8. One of the questions that gives concern here is that if I am being asked to make orders of a partial property nature, there has to be jurisdiction to do so.  It is difficult in circumstances such as this where both parties are without legal representation.  Importantly, the Full Court in Strahan and Strahan [2009] FamCAFC 196 made it clear that if a party wanted the court to exercise its once‑only powers in s 79 of the Family Law Act 1975 (Cth) (“the Act”), they had to give some evidence had to be given that might justify the order being made.

9. Being in arrears of payment is not a justification for the exercise of the s 79 power. It seems to me that the mother wants me to exercise that power, but there is no evidence before me as to the various matters required to establish an order under section 79. In those circumstances, leaving aside the question of the father’s capacity to get to work, it is not appropriate for me to make the order in relation to the motorcar.

10. It turns out that the father and the mother at some stage or other contracted with a fencing company to put up a fence and pay the deposit of something like $400.  The fence obviously has not been completed, for whatever reason.  There is a dispute between the parties as to whether or not the deposit can be refunded, and the mother said that she spoke to the contractor today and he said that if he got a phone call, then he would refund the money.  I will do better than that.  I will make a specific order that P Fencing Proprietary Limited by way of a garnishment order pay to the mother the amount that they are holding on the basis that the fencing is not to be done and in turn she can then pay that money directly into the mortgage.  The question of who ultimately gets the credit, if any, for that mortgage payment can be determined at the trial. 

11. The father was also cross‑examined about the fact that he will have a tax return refund due to him after 30 June.  That obviously is predicated on the basis that he lodges his tax return.  I propose in the circumstances, as the father concedes that the liability under the orders of 20 January would exceed his entitlement to the refund, he lodge his return immediately he is able to do so – and I interpolate that to mean when he gets his final group certificate, bearing in mind that he has had a number of employers – and that upon lodging his return, the refund be immediately paid to the mother who in turn shall immediately pay it into the Westpac Bank mortgage, and like the deposit from P Fencing Proprietary Limited, the ultimate determination of that can be sorted out at trial.  That in part satisfies the enforcement provisions of the applications relating to the January orders. 

12. The father’s application generally sought the suspension of paragraphs 6, 7 and 8 of the orders of Barry J.  Those orders relate to the payment of the mortgage payments, the insurance and the rates.  In the circumstances, the information that Barry J had is substantially different from that which I am now facing.  I accept on the unchallenged evidence of the father that his income position has changed and it is unreliable. 

13. Nothing in the financial statement filed this day by thef ather assists me as to what his expenditure really is.  I know at best when he works a 38‑hour week, he earns $930, but he includes an extra $66 that he gets from a Family Assistance benefit.  Presumably, if he is working 38 hours a week he will not be getting that $66.  His evidence in relation to his future income depends entirely upon what hours he works and that depends entirely upon how often he is called.  Clearly attending court cases on a daily basis such as has occurred in 2010 will not give him much credit with his employer. 

14. It seems to me in the circumstances that I could not be confident that the father is earning $930 per week.  Looking at his obligations, at best he has very little money leftover unless, of course, he works for the 38‑hour week.  If he works the 38‑hour week he has an obligation to pay the payments that he already owes under paragraphs 6, 7 and 8 of the orders of January 2010, but in the meantime it seems to me that I should not suspend those orders because he has the capacity at various times to pay them.  The question of the enforcement of them can be a matter adjusted at trial.  I therefore propose not to suspend those orders. 

15. However, I make this abundantly clear for the mother’s benefit, that if in fact she brings an application which she described as a contempt application, she will need to factor in that contempt requires a deliberate defiance of a court order and on the evidence that I have heard thus far she would struggle to satisfy the court that there has been a deliberate defiance of the court orders.  Having said that, as I said, I do not propose to discharge or suspend the orders in relation to the mortgage rates and insurance at this stage. 

16. If I turn then back to the mother’s application, she also sought an order that the entire model soldier collection and various accessories of the father be provided to her so that she can sell them and pay them into the mortgage account.  One of the difficulties with that is that apart from the admission against interests by the father, I have no idea how much those items are worth and that will ultimately be a matter for argument at trial.  The problem I have, however, is that the mother concedes that the mortgage is currently in credit to the extent of about $15,000, and again there seems to me to be no urgency about that order.  I propose that that issue can wait until trial as well. 

17. The mother then seeks an order that the father transfer $12,000 from the mortgage account to her account, but there is no evidence other than the fact that she would like a number of matters sorted out including the payment back of moneys due to her parents.  In the circumstances, on the basis of what I have already said, it is not appropriate for me to make any orders in that fashion. 

18. Finally, the mother seeks an injunction that the tax refund be directly deposited to the Westpac mortgage account.  For her benefit, there is no power for the court to make an order against the taxation commissioner of that nature which is why I have dealt with the matter earlier in these reasons.  In the circumstances, they are the only orders I propose to make, and otherwise to dismiss the respective applications of the parties before the court today.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  8 July 2010