Kanelos and Kanelos (No 2)

[2014] FamCA 1233

FAMILY COURT OF AUSTRALIA

KANELOS & KANELOS (NO 2) [2014] FamCA 1233

FAMILY LAW – CHILD SUPPORT – Application filed by husband seeking a change of assessment and discharge of a child support departure order – application dismissed

FAMILY LAW – SPOUSAL MAINTENENCE – Application filed by husband seeking to discharge spousal maintenance orders made 4 February 2014 – application dismissed

FAMILY LAW – PROPERTY – Injunctive orders – orders and directions made re the filing of documents

Family Law Act 1975 (Cth)

APPLICANT: Ms Kanelos

RESPONDENT: Mr Kanelos

FILE NUMBER: SYC 6320 of 2013

DATE DELIVERED: 16 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 16 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: V L Macri Lawyers

COUNSEL FOR THE RESPONDENT: Ms Breeze

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

Child Support

1. The application by the husband filed 27 June 2014 for a change of assessment and discharge of a Child Support Departure order (pursuant to the Child Support Assessment Act1989) be and is dismissed IT IS NOTED that this dismissal is without prejudice to the husband pursuing such orders as final orders in the substantive hearing.

Interlocutory Injuction

1. On or before 23 December 2014 the wife file and serve upon the husband and any other joint owners of the properties:-

   a.an application in a case setting out the precise interlocutory injunctions she seeks against the husband regarding his legal and/or equitable interest in real property, namely units W Street, Suburb V and the property at X Street, Y Town Greece (‘the properties’),

   b.affidavits in support and/or copies of existing affidavits upon which the wife relies.

2. On or before 4.00pm 22 January 2015 the husband file and serve any response and any affidavit material in reply, including copies of existing affidavits upon which the he relies

3. The interlocutory injunction application be listed for hearing before me at Hobart at 2.15pm on Thursday 29 January 2015.

4. Leave is given to the parties to attend and appear by videolink from the Sydney Registry to the Hobart Registry.

5. Pending determination of that application or further order; the husband is restrained by injunction from selling, transferring or encumbering the following properties without the written consent of the wife or order of a court exercising jurisdiction under the Family Law Act namely units W Street, Suburb V and X Street, Y Town Greece.

6. Leave be given to the parties to have the matter relisted before me on the giving of seven (7) days notice to the court and included in that will be any application by the other registered owners of that property to intervene in the application for interlocutory application.

Spouse maintenance

1. The application by the husband filed 27 June 2014 to discharge the spousal maintenance orders made 4 February 2014 and 10 June 2014 be dismissed.

2. The application by the husband filed 27 June 2014 to discharge areas of spousal the maintenance orders made 4 February 2014 and 10 June 2014 be dismissed.

3. Orders 1.1 and 1.2 of the interim spousal maintenance order made 4 February 2014 and order 1 of the orders made 10 June 2014 be varied as follows:-

   (1)Pending further order the husband pay to the wife, by way of interim spouse maintenance the following:

   (a)    $1,035.59 per fortnight with the first such payment to be made on 29 December 2014 and fortnightly thereafter;

   (b)    $250.83 per month with the first such payment to be made on 31 December 2014 and monthly thereafter;

   (c)    $517.30 each three calendar months with the first such payment to be made on 27 February 2015 and three monthly thereafter.

4. THE COURT DECLARES that the spouse maintenance arrears owed by the husband pursuant to the spouse maintenance orders made 4 February 2014, as amended by orders 10 June 2014 are currently $30,719.88 AND DIRECTS that within twenty eight (28) days from the date of these orders the husband pay to the wife that amount of $30,719.88 in respect of the maintenance arrears.

5. Costs of both parties be reserved.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kanelos & Kanelos 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 6320 of 2013

Ms Kanelos

Applicant

And

Mr Kanelos

Respondent

REASONS FOR JUDGMENT

1. These are the continuation of the ongoing proceedings between Mr Kanelos (‘the husband’) and Mr Kanelos (‘the wife’) which were commenced in October 2013.

2. The husband is a health professional who is aged 44 years.  The wife is aged 40 years, having just celebrated her 40^th birthday.

3. The parties married in 1996 and separated in 2013.

4. There are two children of their marriage; E, born in 2001, who is now 13, and S, born in 2003, now 11.

5. There were three issues before the Court arising out of an application filed by the husband on 27 June 2014, some 17 days after a determination by another judge of this Court.

6. There are three issues.  The first is an application by the husband to vacate or discharge a spouse maintenance order made in February 2014 and varied on 10 June 2014.

7. The second, is in relation to the retrospective nature of that order to, as it were, discharge any arrears in relation to that maintenance order, and third some child support applications; one relating to an application for a change of assessment and the other relating to a departure order.

8. During the course of argument it was raised, by counsel for the wife, that they were seeking injunctions and she sought to have that heard at the same time.

9. I will try and deal with them from the easy to the not so easy as best I can and I will make orders as I go along.

10. In relation to the child support matters, the husband no longer argues those on an interim basis and as such I will treat them as being not argued and dismissed.  

11. The second issue which I will deal with, relates to a request, by way of an oral application, by the wife to restrain the husband from dealing with properties, W Street, Suburb V and a property in Greece, without the written consent of the wife or without an order of the court exercising jurisdiction under the Family Law Act 1975 (Cth).

12. Apparently, there was an order sought against the husband and members of his family which came before a judge of this Court in November 2014.  That application was apparently settled but may have unsettled today, given the expressions I have seen from the bar table and insofar as the parties other than the husband was concerned.

13. The wife’s counsel gave a case outline or a minute or order to the counsel for the husband yesterday which contained these injunctions, not against the other owners of the property but against the husband.  A complaint was made that the husband did not have an opportunity to deal with that.  There is some substance to that complaint and, as I indicated to the parties, I will allocate a date in late January for the argument in relation to that injunction.

14. The question is what should happen in the meantime.  For the reasons to which I will allude later on, there are some troubling aspects of the material provided by the husband and, it seems on the material before, that there are some issues as to the husband’s frankness.  I make no findings, adverse or otherwise, in relation to those but I note the submissions made.

15. The wife is concerned that the two properties at Suburb V and the property in Greece may well disappear between now and the hearing of the injunction application.  I intend to make an interim order in relation to those properties, given the evidence before me which I will allude to and given the matters that I will refer to.

16. I then go back to the question of spousal maintenance and it is of value to look at the history of what happened in relation to the spousal maintenance.  The spousal maintenance application was heard by Stevenson J on 4 February 2014 and her Honour made orders requiring the husband to pay spousal maintenance by way of paying certain bills.

17. The husband applied to the Court to have that order discharged and it came before Loughnan J on 10 June 2014.  At that time, the husband’s application to discharge the orders of 4 February was dismissed.  His Honour made it clear that if circumstances changed subsequent to that date, it was open for the husband to come back and make such application as he [the husband] considered appropriate.  It is also necessary to note that at the time that application came before Loughnan J, the husband’s affidavit of 10 June 2014 was executed and before the Court.  Some 17 days later, the husband filed an application which I have referred to earlier.

18. The husband relied upon his application in a case filed 27 June 2014, his affidavits of 18 April 2014 and 10 June 2014, but not paragraphs 8 to 44, although parts of those seemed to have been included and referred to by the parties.  I have also had regard to the husband’s affidavits sworn 28 August 2014, 9 October 2014 and 14 November 2014.  He also relied upon his four financial statements of 16 January 2014, 25 June 2014, 11 August 2014 and 9 October 2014 and he tendered a number of documents, Exhibits H1 and H2.  I have had regard to that material.

19. The wife relied upon her financial statement and affidavit filed 7 October 2014, the judgment of Loughnan J on 10 June 2014 and a number of documents which were contained in the exhibits of which there were a number including an exhibit bundle which is Exhibit W9.

20. The husband endeavoured to rely upon some reports from his treating psychiatrist.  One of those reports came into evidence in any event through one of the affidavits.  It is clear that the husband’s psychiatric difficulties were well known to Stevenson J when she made the first order and Loughnan J when he made his order, including the report from the psychiatrist.  I otherwise did not allow the admission of the reports tendered on behalf of the husband, given the reason that I had set out earlier.

21. I made it clear to counsel that I can only deal with any significant change in status arising from 10 June 2014.  It is not my job, as it were, nor do I have jurisdiction to review a decision of another judge of this court.

22. My task is to determine whether to change an interim order for maintenance in circumstances where there is a significant change of relevance.  One of the changes raised by the husband was in relation to his eye surgery and his eye difficulties.  He made that clear, and there was evidence before at least Loughnan J or available at that time, as to the husband’s eye difficulties and the need for surgery.  The husband had the surgery and the evidence is that he was back to work within a short period after that surgery occurred.  I am not satisfied that this is a matter to which, either singularly or the other matters to which I will refer, is sufficient to change the order.

23. The second change is the husband’s mental health issues and his requirement to reduce his work to two days a week.  It is clear that advice was given to the husband before the proceedings came before Loughnan J and it was available, in fact in the affidavit material, before his Honour.  So there has been no change in that regard.

24. The other matters to which the husband refers to are questions of sleep apnoea, obesity and asthma and the evidence is there has been no change, although the husband tendered through his counsel, an appointment to have further sleep apnoea tests in February next year.  What I am to make of that I do not know.

25. The husband says that his employment has concluded.  It is of value to reflect on the submissions made by counsel for the wife in terms of the exchange of emails between the husband and his then employer as to billing and as to his reluctance to bill prior to the end of the financial year and his unemployment arose in circumstances, not of him being fired by or his employment being terminated by that company, but by him resigning.  I note page 36 of the Tender Bundle in that respect and in relation to the exchange of emails, I refer to pages 33 and 34.

26. There are issues about the husband’s ability to work and limitation of work to some two days a week.  I make no formal finding in relation to those except to say that I am troubled by some of the evidence the husband has given and some of the contradictions in the evidence, in particular as to his state of employment as set out in his August and his October affidavits.

27. I make no criticism of the husband in relation to the money that went into his solicitor’s account as there is not enough information before me to form that conclusion and it may well be that it is or is not a problem.  That is a matter for another judge at another time.

28. The task I have is to look at the change in circumstances since the orders were made by Loughnan J.  There is very little change except that the husband has terminated his employment.  He underwent the eye surgery and has been, from time to time, employed since then.

29. I am not satisfied, given all of those matters and given the submissions made generally on behalf of the wife, that the husband has satisfied the Court of sufficient change to otherwise discharge that order.

30. There is no issue as to the arrears of spouse maintenance and I will accede to the wife’s application to frame the orders, not in a substantially different way, but in a way that would facilitate the collection of spouse maintenance by the Child Support Agency.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 16 December 2014.

Associate:     

Date:              16 December 2014