Kushing and Kushing (No. 2)

[2008] FamCA 1237

FAMILY COURT OF AUSTRALIA

KUSHING & KUSHING (NO. 2) [2008] FamCA 1237

FAMILY LAW – PROPERTY

Family Law Act 1975 (Cth)

APPLICANT: Ms Kushing

RESPONDENT: Mr Kushing

FILE NUMBER: MLC 222 of 2007

DATE DELIVERED: 5 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 5 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B.R. Geddes QC

SOLICITOR FOR THE APPLICANT:	Maria Barbayannis & Co
COUNSEL FOR THE RESPONDENT:	Ms O. Nikou SC

SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyers

Orders

1. Subject to paragraph 2 hereof and by way of satisfaction of the wife's claim pursuant to paragraph 15 of the orders made on 11 July 2008, the husband pay to the wife the sum of $4100.

2. All questions of the significance of the payment pursuant to paragraph 1 hereof be reserved to the Trial Judge on the ultimate hearing of the competing applications for alteration of property interests.

3. All extant interim applications be otherwise transferred to the Long Interim List at 10:00am on 10 February 2009 with an estimated duration of half to one day.

4. No later than 4:00pm on 27 January 2009 the wife file and serve:

   (a)       a precise statement of the orders sought; and

   (b)       a list of documents to be relied on.

5. No later than 4:00pm on 3 February 2009 the husband file and serve:

   (a)a precise statement of the orders sought in response to the wife’s orders; and

   (b)       a list of documents to be relied on.

6. All questions of costs be reserved.

7. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel including Senior Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 222 of 2007

MS KUSHING

Applicant

And

MR KUSHING

Respondent

REASONS FOR JUDGMENT

1. After a marriage of approximately 40 years, the parties have instructed members of senior counsel to argue about a number of interim matters arising out of their financial relationship, the primary one for today's purposes being the sum of $4100.

2. On 11 July 2008, after what I am informed was an extensive interim hearing, Carter J made orders which are extremely detailed and comprehensive.  Those orders, to the extent they are presently relevant, are first, paragraph 10, secondly, paragraph 15, and thirdly, paragraph 12.

3. Paragraph 15 of the orders provided that the husband and the wife sign all documents and do all things necessary to cause the company conducting the parties' apparently successful business to pay from the business account by direct debit for the benefit of each party the sum of $850 per week by way of salary, together with $3000 per month by way of credit card expenditure.

4. At the end of that paragraph of the order, her Honour provided "that neither party be entitled to deduct any sums from the amounts payable pursuant to this order without an order of the court".

5. Paragraph 10 of the order required an accounting by way of provision of significant detailed information each month as to payments from the company, business or trust.  Paragraph 12 provided:

   Until further order, neither party sign any cheque drawn on any account of the business, the company and/or the trust to "cash".

6. It is contended on behalf of the wife and not challenged on behalf of the husband that the amounts of $850 were not paid to the wife on 17 and 24 October 2008 and the amount of $3000 was not paid to her on 18 October 2008.  It is conceded on behalf of the wife that she withdrew the sum of $100 from the account on 27 October and $500 from the account on 28 October, totalling $600, thereby on the contention on behalf of the wife, placing her in debit with regard to paragraph 15 of the order in the net sum of $4100.  It is that sum which is the primary claim made on behalf of the wife today.

7. In amongst all that is the readily conceded proposition of an extremely dysfunctional relationship between the parties, resulting in disputes such as the one presently before the court.  There are other arguments with regard to whether an order should be made requiring any withdrawal to be jointly signed by the parties, whether Internet banking should be permitted at all and like matters.

8. Importantly, each party asserts against the other that various, very large sums of money have been withdrawn or benefited the other party in circumstances which, at least inferentially, is suggested to constitute a set-off. 

9. On the wife's part, it is asserted that the husband has had a little in excess of $150,000 and on the husband's part, it is asserted that the wife has had something in excess of $300,000.  It is common ground that an appropriately qualified expert is in the process of preparing an audit of the company accounts which I would expect and which the parties expect will clarify these various issues.

10. In the meantime, it appears to be common ground that the parties are contesting applications for alteration of property interests, the net pool of which might be seen to be significantly in excess of $2 million.

11. It would appear that in the ultimate applications for final orders, the real issues are going to be relating to the pool and in particular, what, if any add-backs should form part of the pool, presumably on both sides.  Again, it might reasonably be expected that the audit to which I have already referred will at least help to clarify that question.

12. It appeared before this matter started before me that most of the issues might have been resolved on an interim basis.  However, this issue of the $4100 is clearly very heated and there also appears to be a number of other issues which need to be tried on an interim basis.  I had suggested to the parties that a suitably practical answer to that matter might be to put aside the interim issues and arrange for a speedy trial of the applications for final orders.  However, the wife, as she is entitled to do, seeks to prosecute her interim applications and the date which has been determined for that has been 10 February 2009.  That is a long interim list and on the basis of the time occupied over $4100, one might wonder whether the remaining issues are capable of determination within a day.

13. The question therefore remains as to whether any, and if so, how much of the sum of $4100 should be paid by the husband.  The additional complication is that the company account from which the sum is required to be paid pursuant to the order has a minimal amount of money in it which is approximately $30.  Accordingly, if the money is to be paid, it will need to be paid from the husband's personal account.  The evidence suggests that he has an account of approximately $77,000 but it is submitted on behalf of the husband that that really is his money after previous distributions already made.

14. I have already said sufficient critical things about a dispute involving senior counsel over $4100.  As far as the order itself is concerned, her Honour was quite prescient in providing effectively, in my own words, that set-offs were not permitted. 

15. In those circumstances and pursuant to the power granted to me by section 77 of the Family Law Act 1975 (Cth), in the absence of a complete factual picture, I am going to provide that the sum of $4100 be paid to the wife by the husband. All questions of the significance of that payment will be reserved to the trial judge and may be taken into account at such time as the court considers appropriate. I will order accordingly.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  17 April 2009