Lyons and Churchill

[2013] FamCA 470

FAMILY COURT OF AUSTRALIA

LYONS & CHURCHILL [2013] FamCA 470

FAMILY LAW – PROPERTY – interim – spousal maintenance

Family Law Act 1975 (Cth)

APPLICANT: Ms Lyons

RESPONDENT: Mr Churchill

FILE NUMBER: SYC 729 of 2013

DATE DELIVERED: 17 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Edney Ryan Legal

COUNSEL FOR THE RESPONDENT: Mr Anderson

SOLICITOR FOR THE RESPONDENT: Forsters Solicitors

Orders

1. Until final orders or until settlement of the sale of the matrimonial home at … G Street, Suburb H, the husband pay by way of spousal maintenance the sum of $500 per week, such payments to be made to the ordinary account relating to the mortgage with National Australia Bank on the Suburb H property.

2. It is noted that until further order or until the settlement of the sale of the matrimonial home, the wife is to have exclusive occupation of the matrimonial home and the husband will continue to pay council rates, water rates and home insurance premiums.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lyons & Churchill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 729 of 2013

Ms Lyons

Applicant

And

Mr Churchill

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The wife by way of an application filed on 14 February 2013, seeks orders as set out in annexure B being the interim orders sought.  Those orders seek an interim order for spousal maintenance of $1468 per week for specific purposes which are detailed in order 2, the most significant purpose being that detailed in paragraph 2(a) of a payment of $1223 per week in relation to the mortgage on the Suburb H property.  The wife also seeks an order for exclusive occupation of the Suburb H property until settlement of the sale of the matrimonial home.

2. In relation to the latter order for exclusive occupation, the husband’s position is that there is no evidentiary basis upon which that order should be made given that the husband has agreed that the wife and children can live in that home until the conclusion of the litigation and the ultimate sale of the property. I made the comment to avoid the parties having to come back about that issue, an order might be efficacious.  But I accept that there may be no evidentiary basis to make the order.  I will, however, make a notation. 

3. In relation to the application for spousal maintenance, the court, on an interim basis, takes a very broad brush approach to these types of hearings.  The wife’s application is essentially a spousal maintenance application designed to preserve capital and in circumstances where she argues that capital, if not preserved, will not be available at the final hearing which may not take place in this court and if it does not, I am not in a position to say how long it will be before the Federal Circuit Court deals with this matter on a final basis.  So the duration of the diminution in capital as asserted by the wife is slightly unknown but from the bar table an estimate of 12 months was given. 

4. The diminution of capital arises from the husband’s decision not to continue to make regular repayments in respect of the monthly instalments on the mortgage on the Suburb H property. 

5. The parties when they were together were paying an amount which the wife asserts in her financial statement as being $1223 per week or $5303 per month.  That was the payment of the principal interest that was being made when the parties were together.  Since 27 November 2012 the husband has stopped all payments.  It seems that the regular accrual of principal and interest on the account is at a rate of $4154 per month which is about $959 per week.  The husband asserts there is no need for that amount to be paid because there is a capital credit in the mortgage offset account of $51,744 and that that capital credit at close to $1000 per week would be good for about a year.  The husband otherwise asserts that on the face of the material the wife has a capacity to make some payments from her income once an analysis of the amount of $3376 which she pays by way of weekly expenses is done.  The figure of $3376 includes the $1223 which isn’t being paid at the moment. There is no suggestion the wife would be paying that, which brings the expenses down to $2153.

6. In relation to part of the remaining amount of $2153, the wife claims a part lien expenses in relation to the children of $1386.  It is conceded that some of those payments, particularly children’s activities and education expenses including fees and levies, are payments made by the husband.  In relation to the concessions made regarding the children’s activities, there’s an assertion from the bar table that the wife actually pays $144 in education expenses.  The husband in his affidavit denies that.  I have two conflicting pieces of evidence about that.  Namely, the wife’s financial statement on the one hand and the husband’s affidavit on the other.  I am unable to resolve those two pieces of evidence as to which version is accurate.

7. When one compares the wife’s part in expenses with the husband’s, there is a reasonably stark difference.  Just to take the first two examples, the wife for herself claims an item for food at $90 and household supplies at 10, that is, $100 for those two items.  The husband in comparison for himself claims an expense of $275, so nearly three times as much.  Using that as a guide, the expenses that are claimed by the wife for herself seem to be reasonable to point of frugalness.  There is always an argument in these cases about how the expenses in relation to the children should be treated.  But nobody has suggested that they can’t, in the broad brush approach that I am being invited to take in this case, be taken into account as real expenses that the wife has to find.  Albeit that the husband is providing to the wife the amount of $427 per week by way of child support in circumstances where the children are living with their mother nine nights a fortnight during school term and five nights with their father.

8. I am prepared to accept for the purposes of this hearing that the wife has established a need to preserve capital for the final hearing just to a certain extent.  I do, however, take into account the existence of the offset account credit.  I think a reasonable compromise is to make an allowance of $500 per week in terms of the need that has been established.

9. The question is then whether or not the husband has the capacity to pay that amount.  It seems to me fairly clearly that he does.  Firstly, his statement of income in his financial statement is understated in accordance with what is contained in exhibit 1.  His gross income is $7400 a week, not the amount that is stated in his financial statement of $6226 which includes the car allowance. 

10. Secondly, it has been conceded that the husband incorrectly stated at item 20 on his financial statement that he has a weekly expense of $495 and that is an amount that is being paid by his employer and it is not an expense that he incurs. 

11. Thirdly, if one looks at part N, I have already referred to the food and household supplies items and add to that miscellaneous lunches during the week for himself of another $75 per week, then the husband is actually claiming that he is spending on food and household supplies something in the order of $350 per week.  The husband has claimed an amount of $350 per week for himself on furnishing and appliances as an ongoing expense; that he has an amount of about $225 per week on entertainment, hobbies and holidays and an amount of $100 per week on house repairs in circumstances where the home he has moved into has been renovated. 

12. Fourthly, there is an expense claimed by the husband of $197 per week which is a mortgage payment he says that he is immediately liable to pay his father.  That’s not what the loan agreement says.  The loan agreement says that he is to pay his father when he is financially able to do so.  The exact words are, “when I am financially able.”

13. Although there is an email from his father requesting payment and making the comment that his father lives from interest from his investments, his father is coy about the level of the father’s investments or in fact the level of the income that the father receives from his other investments. I conclude that there is no immediate liability to make that weekly payment without making any comment at all about the need for that debt to be considered properly as part of the overall adjustment of property between the parties. 

14. Accordingly, I find on a broad brush approach that the wife has established a need for a payment of $500 per week towards the mortgage and other outgoings.

I certify that the preceding fourteen (14) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 17 June 2013.

Associate:   

Date:  20.6.2013