Kilmartin and Kilmartin

[2007] FamCA 207

FAMILY COURT OF AUSTRALIA

KILMARTIN & KILMARTIN [2007] FamCA 207

FAMILY LAW - PROPERTY - Interim financial orders

Family Law Act 1975 (Cth)

APPLICANT: MR KILMARTIN

RESPONDENT: MRS KILMARTIN

FILE NUMBER: MLF 3155 of 2006

DATE DELIVERED: 9 MARCH 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 9 MARCH 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS CRANNENBERG

SOLICITOR FOR THE APPLICANT: L.G. YVES MICHEL & CO

COUNSEL FOR THE RESPONDENT: MS TREYVAUD

SOLICITOR FOR THE RESPONDENT: CLANCY & TRIADO

Orders

1. THAT paragraphs 1, 2, 3 and 4 and 7 of the orders made on 1 January 2007 be discharged.

2. THAT the husband and the wife have equal shared parental responsibility in consultation with each other for the decisions on major long term issues concerning the children, namely a daughter born in September 2002 and a son born in January 2004 (‘the children’)

3. THAT the children live with the husband as follows:

   (a)from 6.30 p.m. Friday until 9.00 a.m. Monday and in the event Monday is a public holiday until 9.00 a.m. Tuesday on alternate weekends commencing 16 March 2007.

   (b)each Tuesday from 6.30 p.m. until 9.00 a.m. Wednesday;

   (c)from 6.30 p.m. Thursday 5 April 2007 until 6.30 p.m. Monday 9 April 2007 (“Easter 2007”);

   (d)from 3.00 p.m. 24 December 2007 until 3.00 p.m. 6 January 2008 (“Christmas 2007”);

   (e)           from 6.30 p.m. on 3 July 2007 to 6.30 p.m. on 13 July 2007;

   (f)            prior to the daughter commencing school:

   (i)for a minimum of four (4) hours on each of the children’s birthdays by agreement between the parties and in default of agreement 4.00 p.m. until 8.00 p.m.;

   (ii)for a minimum of four (4) hours on the husband’s birthday by agreement between the parties and in default of agreement from 4.00 p.m. until 8.00 p.m.;

   (g)upon the daughter commencing school;

   (i) for a minimum of two (2) hours if a school day and a minimum of four (4) hours if a non-school day on each of the children’s birthdays and the husband’s birthday, such times by agreement and in default of agreement:

   (A) on a school day from 6.00 p.m. until 8.00 p.m.; and
     (B) on a non-school day from 4.00 p.m. until 8.00 p.m.;

   (h)upon the daughter commencing school for one half of all school terms and long summer vacation periods at times to be agreed between the parties and in default of agreement the second half of such vacations periods in 2008 save for Easter and Christmas and alternate years thereafter and the first half of such vacation periods in 2009 and alternate years thereafter; the weekend and Tuesday night time as set out in paragraphs 3(a) and (b) being suspended during such school vacation periods;

   (i)           from 9.00 a.m. until 6.00 p.m. on Father’s Day;

   (j)each Easter and Christmas period in 2007 and alternated years thereafter;

   (k)          as otherwise agreed between the parties from time to time.

4. THAT the children live with the wife at times other than when the children live with the husband as set out in paragraph 3.

5. THAT the children’s time living with the husband be suspended as follows:

   (a)           from 9.00 a.m. until 6.00 p.m. Mother’s Day;

   (b)during Easter and Christmas periods in 2008 and alternate years thereafter;

   (c)prior to the daughter commencing school and the children living with the husband for a minimum of four (4) hours on each of the children’s birthdays  and the wife’s birthday by agreement  between the parties  and in default of agreement from 4.00 p.m. until 8.00 p.m.;

   (d)upon the daughter commencing school and the children living with the husband for a minimum of two (2) hours if a school day by agreement between the parties and in default of agreement form 6.00 p.m. until 8.00 p.m. and on a non-school day form a minimum of four (4) hours as agreed between the parties and in default of agreement from 4.00 p.m. until 8.00 p.m.

6. THAT the husband arrange for the children to telephone the wife on Saturdays between 7.00 p.m. and 7.30 p.m. when the children are living with him and at other times as agreed between the parties together with 7.00 p.m. to 7.30 p.m. Wednesday when the children are with him for extended periods.

7. THAT the wife arrange for the children to telephone the husband on Saturdays between 7.00 p.m. and 7.30 p.m. when the children are living with her and at other times as agreed between the parties.

8. THAT the husband collect the children and deliver the children from and to the wife’s home a the commencement and conclusion of the children’s periods of residence with him, save and except for delivering the children to kindergarten and or school when a kindergarten and or school day, the husband to remain in the car except to assist the children in to and out of the vehicle.

9. THAT pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the ‘Fact Sheet’ and these particulars are included in these orders.

10. (a)           THAT until further order the husband and his servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the wife to or in the presence or hearing of the children or any of them, and from permitting any other person to do so.

    (b) until further order the wife and her servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the husband to or in the presence or hearing of the children or any of them, and from permitting any other person to do so.

11. THAT the report of Ms F dated 5 March 2007 be annexed to an affidavit and be filed forthwith by the Independent Children’s Lawyer.

IT IS NOTED:

A.THAT the husband seeks that the children live with him on a week about basis once the children have both commenced school in accordance with the recommendations made by psychologist Ms F in her report dated 5 March 2007.

B.THAT the wife will advise the husband of children’s birthday parties, kindergarten or school activities which may occur when the children are with him and would like the husband to take the son to those activities if possible.

FINANCIAL

UNTIL FURTHER ORDER:

1. THAT the husband pay the following outgoings:

   (a)all mortgage instalments and other payments or interest due to the Commonwealth Bank of Australia and secured on the home at I;

   (b)water, council rates and charges, electricity, gas, landline telephone and the wife’s mobile telephone and all internet connection fees and charges (save for any overseas telephone calls made by the wife);

   (c)kindergarten fees, music costs and dance lessons and costs for one or both of the children;

   (d)registration, all reasonable and required maintenance and proper insurance cover on the 2001 Subaru motor vehicle registered number …;

   (e)health insurance costs for the wife and each of the children at the current level of contribution or expenditure.

2. THAT each of the above payments as required are not to be credited against any child support assessment as to be paid for by the husband.

3. THAT until further order the wife have the sole use and occupation of the I home on the condition that there is no tenant or visitor residing in the bungalow at the rear of the home.

4. THAT until further order the wife have the use and enjoyment of the earlier referred to Subaru motor vehicle.

5. THAT the parties agree or otherwise each of them sign all documents required to transfer to the sole name of the wife the telephone and other household accounts and the internet connection which is to be re-established immediately.

6. THAT otherwise the wife’s application for spousal maintenance or for security for costs be dismissed (but without that matter being the subject of any hearing this day).

7. THAT a financial conciliation conference be fixed for 2 May 2007 at 11.00 a.m. and both parties be required to attend, personally and to make a bona fide endeavour to resolve all outstanding property and financial issues.

8. THAT prior to such financial conciliation conference the parties exchange a summary document of all assets and financial resources, including then current liabilities and endeavour to resolve all valuation and like issues so as to permit that conference to be conducted in a meaningful manner.

9. THAT otherwise the Form 2 application filed 13 November 2006 and the Form 2A response filed 22 December 2006 be dismissed.

10. THAT each of the Form 1 and Form 1A applications and response be consolidated and listed on the date fixed for the financial conciliation conference.

11. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3155 of 2006

MR KILMARTIN

Applicant

And

MRS KILMARTIN

Respondent

REASONS FOR JUDGMENT

1. In Kilmartin I have earlier made interim children's and parenting orders.  The parties were unable to resolve financial issues on an interim basis and I have therefore had submissions from Ms Treyvaud of counsel for the wife and Ms Crannenburgh of counsel for the husband.  The specific orders that were sought by the wife were detailed in paragraphs 7, 8 and 9 of her form 2 application filed 22 December 2006. 

2. To the extent that orders were sought for spousal maintenance, they are not continued.  In paragraph 10 a security for costs order in the sum of $20,000 was sought, but that has not been likewise continued before me. 

3. At the commencement of submissions Ms Treyvaud handed a minute of order itemising the specific orders now sought, which differ somewhat from paragraphs 7, 8 and 9 of the order. 

4. Dealing firstly with the issue of the use and occupation of the home at I, the wife and two children remain in occupation of that home.  The husband, by making a pragmatic and I think commonsense decision, has moved to live nearby but in different premises.  He had been occupying the bungalow at the rear of the property, but that clearly led to a heightened level of tension and angst between the parties. 

5. The husband's primary concern, because the bungalow has no bathroom or other facilities, was not to have a stranger living there.  That may be at a financial cost, because rent could be received, but his decision is sensible and it does, to his mind, afford a very real level of security to the children.  I propose to permit the wife to continue to reside in the home, but she is not to rent the bungalow to any stranger and she is not otherwise to have any stranger reside on any regular or permanent basis in her home with the children.  That is on an interim basis only and pending any negotiated outcome at the financial conciliation conference or subsequent order of the court.

6. As to the motor vehicle, there does not seem any dispute.  The wife will have the use of the Subaru motor vehicle, as identified in paragraph 8 of her application. 

7. The substantial issue in this case, and where the parties were seemingly at loggerheads and where counsel or solicitors could not help resolve the issue, is the actual expenditure of money on basic necessities and other expenses that are largely fixed or known.  I have read the affidavit of the wife in support of these aspects of her claim, and in particular they commence from paragraph 66 of her affidavit of 22 December 2006 and various annexures.  I have examined her Form 13 financial statement of that same date. 

8. Likewise, I have carefully examined the Form 13 financial statement of the husband, though his counsel has moderated the net income that he receives on a monthly basis.  There is also an affidavit that the husband filed on 22 January 2007 that is extensive and deals with financial issues and exhibits the relevant taxation returns, bank statements and other financial documents, generally to paint the picture of the assets, liabilities and financial circumstances of this couple and their children. 

9. I have had, although I somewhat curtailed, submissions from counsel on various issues.  I am absolutely aware that the husband has, quite properly, now significant additional income because of his election to rent a nearby property, where he has the children overnight with regularity.  The particular financial assistance that the wife seeks by way of order is as follows:

   a)mortgage instalments on the home;

   b)water, rates, electricity, gas, telephone (including mobile phone and Internet connection and telephone landline);

   c)kindergarten, music and dance costs for the children;

   d)registration, maintenance and insurance on the Subaru motor vehicle; and

   e)health insurance at the current level of contribution, as distinct from any earlier level of contribution or that which was sought in the form 2A application of the wife, paragraph 7(d).

10. As I earlier indicated, the wife seeks no spousal maintenance.  There otherwise is an ongoing child support assessment of approximately $2041 per calendar month.  That assessment is not the subject of challenge or departure order; though, as part of this case, what the husband had instructed his legal practitioners to achieve was to offset certain payments against his child support assessment, which would have the effect of reducing the cash sum that the wife has to provide food, expenses, clothing and the wellbeing of the children on a financial basis. 

11. There does need to be a pragmatic approach to interim maintenance and payment of expenses.  There is no cross‑examination on the interim hearing, although the parties have the opportunity to spend a vast sum of money, time and create further upset within the family by pursuing that at another date.  Whether they should in this case, I do not comment; but, hopefully, there will be a measure of commonsense. 

12. I am generally aware of the equity in other assets, the financial resources of the parties as disclosed and the husband's gross and net income, the court having been advised that his net income is $7350 or thereabouts per calendar month, as distinct from the gross weekly income of $2990 as recorded in his financial statement.  I have no regard to any potential bonus, as it is not yet received.  The expenses that the wife seeks are basic to the occupation of the home, some entertainment for the children and the use of the motor vehicle.  I gave the husband an option of excluding kindergarten, music and dance costs and having the children excluded from those activities.  Quite sensibly, and as I would expect, the husband did not take up that offer. 

13. What the husband does want to do is limit the amount of gas and electricity the wife can use, effectively to have a meter on the use, because the allegation is that the wife is totally and absolutely irresponsible when it comes to the use of these domestic services and intends to waste money.  I do not know if that could be the case, but it was certainly the submission that I heard.  Whether it is or is not will ultimately be proven by a minute examination of those household accounts, though one hopes that does not occur.  Otherwise, the suggestion was there needs to be a cap on the telephone landline bill or an exclusion of the mobile phone so as the wife could not ring interstate family and friends.  I reject that approach. 

14. I will, however, restrict the wife form telephoning overseas on landline or telephone, save at her expense.  That in itself might be unduly harsh, given the circumstances of this marriage and the wife's lack of English and probable range of friends, but that is the only caveat that I will place on the orders sought by the wife.  I most certainly will not provide a reduction on any child support payment by including moneys paid for electricity or gas or Internet connection as an offset to child support.  I will require the husband to transfer household accounts, including the telephone and Internet to the wife's name.  I will require the wife to be sensible about their use.

15. I am asked to provide for a financial conciliation conference in this matter and I will make that order provided all valuation issues are prepared or resolved and each party exchanges with the other a simple one‑page summary statement of assets and liabilities that is accurate.  If there are any other particular contribution issues or issues of and related to the husband's work or the wife's ability to work, they need to be clearly highlighted prior to the conciliation conference.

16. For those brief extempore reasons given in this judicial duty list and reinforcing my comments that this matter should have resolved but understanding that a court must make decision, and I have no difficult or no issue in making such decisions, I will therefore pronounce the orders.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 16 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KILMARTIN & KILMARTIN