Jarrott and Jarrott

[2010] FamCA 625

FAMILY COURT OF AUSTRALIA

JARROTT & JARROTT [2010] FamCA 625

FAMILY LAW – SPOUSAL MAINTENANCE

Family Law Act 1975 (Cth)

APPLICANT: Ms Jarrott

RESPONDENT: Mr Jarrott

FILE NUMBER: SYC 1134 of 2009

DATE DELIVERED: 17 March 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 17 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pender

SOLICITOR FOR THE APPLICANT: Tonkin Drysdale Partners

COUNSEL FOR THE RESPONDENT: Mr Lloyd, SC

SOLICITOR FOR THE RESPONDENT: McDonell Milne Toltz Family Lawyers

Orders

1. That the husband pay to the wife or as she shall in writing direct the sum of $200 per week interim spouse maintenance first payment within 7 days.

2. That orders are made in accordance with the hand-written Minute of Orders filed in Court today and signed by Judicial Registrar Johnston and placed with the Court papers as set out hereunder:-

   1.The children [S] born […] March 2004 and [U] born […] February 2007 have telephone contact with the husband as follows:-

   (a)That the father be permitted to telephone the children each Monday between 5pm and 7pm and each alternate Wednesday commencing on 24 March 2010 between 5pm and 7pm by ringing the mother’s landline;

   (b)Otherwise as agreed between the parties.

3. That all other interim applications are consolidated with the substantive applications.

4. That all costs are reserved.

5. That by consent orders are made in accordance with the hand-written Minute of Consent Orders filed in Court today and signed by Judicial Registrar Johnston  and identified as Exhibit A as set out hereunder:-

   1.That order 2.2 of the orders made on 30 June 2009 be suspended on Wednesday 17 March 2010 and Thursday 18 March 2010 and in lieu the father spend time with the children from 3pm Sunday 21 March 2010 until Tuesday 23 March 2010.

   2.To give effect to order 1 above the father will collect the children from the mother’s residence on Sunday 21 March 2010 and return [S] to school and [U] to pre-school on Tuesday 23 March 2010.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1134 of 2009

MS JARROTT

Applicant

And

MR JARROTT

Respondent

REASONS FOR JUDGMENT

Applications

1. This is an application by Ms Jarrott, to whom for convenience I shall refer as “the wife”, for orders to the effect that Mr Jarrott, to whom for convenience I shall refer as “the husband”, in his personal capacity and as director of D Proprietary Limited do all such acts and things, sign all such documents and pass necessary resolutions to cause D Proprietary Limited or such other entity within the DG group as may be necessary to pay to the wife a weekly amount of $1080 net of tax and superannuation.

2. There is also an application for an order to the effect that pending resolution of these proceedings, the husband be and is hereby restrained from selling, disposing of or encumbering other than in the ordinary course of business his interest in any of various specified companies and trusts.  There has been no evidence which, in my view, goes anywhere near supporting that application.  I therefore propose to dismiss that part of the application.

3. But I turn my attention to the wife’s application for periodic spousal maintenance in the amount of $1080 per week.  This is against a background where the parties have been involved in litigation in this Court over, now, quite some years and there have been previous determinations of applications.  The present application is made against the following background.

4. The husband was born in 1965.  The wife was born in 1968.  They commenced cohabiting in December 1999, married in March 2005 and they separated on 8 September 2008.  There are two children of the marriage, S who was born in March 2004 and U who was born in February 2007. 

5. The wife’s case seems to come down to this argument.  Since separation the husband had been paying her $600 per week and I do not think there is any issue about that.  The wife said that over approximately the last year or so the husband has been progressively reducing his financial assistance to her to the point where he reduced the $600 per week payment to $400-odd per week fairly recently and he has stopped paying certain other matters which the wife said that previously he has been paying.

6. The wife says that she has a need for $1150.47 per week.  This is on the basis of the estimates of expenditure which are set out at Part N to her financial statement.  Those are split into the relevant columns of estimates.  There is one column for the person who is swearing the document.  In this case those are estimates in respect of the wife’s own average weekly expenses.  There was a typographical error in the total of the column but they came to $355.74. 

7. The costs in the next column are estimated by the wife as being costs which she bears.  She says they are the estimated costs of the children which come to a total of $510.  In order to justify the amount of in excess of $1000 a week the wife relies on those estimates for the children.  Yet after the wife had closed her case I was informed that in fact the husband pays child support in the amount of $1668 a month which on my calculation works out at $385 per week.

8. So I am just at a loss to understand how in those circumstances the wife can possibly say she has costs of $510 per week.  In any event, in my view, given what one sees coming before this Court and given what I know about this case, the wife is unable to sustain a case for $510 per week.  In my view the proper weekly costs of these children, even though that is really a child support aspect of the litigation rather than a spousal maintenance application, are something under $400.  On the basis that the husband has been assessed to pay child support at $385 per week, and on the basis of the wife’s estimates, that does not seem far away from the mark.

9. So that leaves the wife’s own weekly costs.  They appear to me probably to approximate an amount in real terms of a few hundred dollars a week rather than the sort of figures that the wife is seeking.  In any event, the wife is in receipt of a pension of something like $261.50 per week being the parenting payment.  Courts are not to take account of those matters in determining a spousal maintenance application.

10. In any event, I cannot see any case for the wife achieving an order in anything like the amount that she is seeking for her own spousal maintenance.

11. Then we come to the husband’s capacity to be able to pay.  He says that he pays the mortgage on the home in which the wife is living and there has been a very keenly contested contest in respect of this home.  There was litigation before Cohen J in which the husband was unsuccessful in persuading his Honour that in all the circumstances it was just and appropriate to sell that property.  But that is that that is costing an enormous amount to maintain.  It is a substantial home on a very substantial amount of land, I think about 25 acres, with swimming pool and a very considerable area of grass which the wife says costs a lot to maintain.

12. The husband says that the mortgage that he is paying in respect of that comes to in excess of $2000 a week.  He says he provides a motor vehicle for the wife at $250 a week although I am not sure that that is still the case because there has been some material before the Court to indicate that the wife had a motor vehicle accident and received a payment of $14 000 in respect of that.  It has been said on her behalf across the bar table that she has purchased a new motor vehicle with those moneys.

13. The husband says in his material that he also pays the rates and taxes, the electricity and repairs and maintenance on the home.  I think the repairs and maintenance come to a cost of something like $60 a week.  He says he just cannot sustain this level of ongoing cost. 

14. He says that his income is $3818 per week after tax.  He says out of that he is paying $3441 per week for the wife and for the children, on the basis of the $600 which he concedes he is no longer paying in its totality.  He says that he cannot live on the difference and he is borrowing money from the companies in the DG group in order to pay the difference.  He says that the company overdraft has now reached the point where it is $119 888 and its limit is $150 000.  The inference that one draws from that is that this situation is not going to be able to be sustained very far into the future.

15. The wife, through her counsel, endeavoured to attack the husband’s sworn deposition that his income is $3818 per week after tax.

16. There was nothing forthcoming in the wife’s case which attacked what the husband was putting to the Court.  So that at the end of the day we have a case which is put by the wife which simply has not been able to be made out. 

17. On the basis that the Court is unable to take account of that pension payment, I am prepared to make a periodic order but the periodic order is going to be in the amount of $200 per week.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judicial Registrar W P Johnston.

Associate:     

Date:              23 July 2010