Marsh and Marsh (No 3)

[2011] FamCA 629

FAMILY COURT OF AUSTRALIA

MARSH & MARSH (NO 3) [2011] FamCA 629

FAMILY LAW - SPOUSAL MAINTENANCE – periodic maintenance – child support

Family Law Act 1975 (Cth)

APPLICANT: Ms Marsh

RESPONDENT: Mr Marsh

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3464 of 2009

DATE DELIVERED: 27 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 18 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Champion Legal

Orders

1. By consent, within 14 days of the date of the making of this Order, the husband pay to the trust account of Broun Abrahams Burreket the sum of $571,953 to be applied to the wife’s costs of and incidental to these proceedings.

2. By consent, the wife shall not permit any of the above monies to be used for any purpose other than the payment of legal costs and disbursement in relation to these proceedings and in the event the funds are not exhausted for that purpose by the conclusion of these proceedings, then the wife shall cause any such surplus to be returned to the husband.

3. By consent, Order 12 of the Orders made on 4 November 2009 is set aside in so far as it relates to periodic payments of $2,600 a week to the wife, but not outgoings.

4. The husband shall pay to the wife the sum of $117,468.

5. The true character of the payments referred to above as partial property settlement, maintenance, child support or costs be a matter reserved to the trial judge.

6. The husband’s application for injunctive relief is adjourned for further consideration when the matter is next listed before the Court.  In relation to that application the wife is to file any material in opposition to it within 21 days of today’s date.

7. The matter is otherwise adjourned to the date of its next listing before the Court namely 10.00 am on Thursday, 6 October 2011.

IT IS NOTED that publication of this judgment under the pseudonym Marsh and Marsh (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3464 of 2009

Ms Marsh

Applicant

And

Mr Marsh

Respondent

And

Legal Aid NSW
Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The proceedings before the Court are in the nature of interim proceedings pending a final hearing and determination of issues between the parties, inter alia, for property settlement and other financial relief including spouse and child support.

2. The proceedings were commenced by the wife who sought the following orders as set out in her interim application:

   a)That within 14 days of the date of making of this Order, the husband pays to Broun Abrahams Burreket the sum of $571,953 to be applied to the wife’s costs of and incidental to these proceedings.

   b)That pending further Order, pursuant to section 117 of the Child Support (Assessment) Act there be a departure from the Administrative Assessment of Child Support such that the annual rate of child support for [L] shall be in the sum of $12,965 per week.

   c)That Order 12 of the Orders made 4 November 2009 be discharged and in lieu thereof pending further Order the husband shall pay to the wife by way of spouse maintenance the sum of $13,336 per week.

1. The orders sought by the wife were subject to amendment on the morning of the hearing and the wife then sought orders in the following terms:

   a)That within 14 days of the date of making of this Order, the husband pay to Broun Abrahams Burreket the sum of $571,953 to be applied to the wife’s costs of and incidental to these proceedings.

   b)That pending further Order, pursuant to s 117 of the Child Support (Assessment) Act there be a departure from the Administrative Assessment of Child Support such that the annual rate of child support for [L] shall be in the sum of $6,421 per week, first payment within 48 hours and weekly thereafter and for such period as [L] is in New Zealand, the sum of $50,000 per month to date from 12 July 2011, first payment within 7 days and monthly in advance on the 12^th of each month thereafter.

   c)That Order 12 of the Orders made 4 November 2009 be discharged and in lieu thereof pending further Order the husband shall pay to the wife by way of spouse maintenance the sum of $7,760 per week, first payment within 48 hours and weekly thereafter.

   d)That the wife have leave to have determined any application to vary the amounts provided for in Orders 2 and 3, so as to address expenses in relation to travel to and living in the United States in conjunction with the hearing of any Application for her to travel to the United States with [L] from 10 December 2011 onwards.

   e)That the wife shall file and serve any response and affidavits upon which she intends to rely in respect of the relief sought by the husband concerning the [Town 1] property in his Further Amended Response to an Application in a Case filed 14 July 2011 within 14 days and a date for hearing of the orders sought by him be considered on 6 October 2011.

2. The husband filed a Response in which he sought the following orders:

   a)That Order 6 of the Orders of 2 September 2009 and Orders 11 and 12 of the Orders of 4 November 2009, be vacated.

   b)That Orders 3 – 6 of the Orders sought in the Application in a Case filed 27 April 2011, be dismissed.

   c)That the wife is restrained from occupying the property [C Street, Town 1], pending further Order.

   d)That the wife is to do all acts and things to cause any current occupant of the property to forthwith vacate and to remove any of their possessions from the property.

   e)That the husband be entitled to change the locks to the property
   [C Street, Town 1].

   f)The wife thereafter be restrained from removing, interfering or changing the locks to the property [C Street, Town 1].

   g)That the husband be permitted to cause all and any necessary repairs required to the property to be carried out at his expense and to complete all works necessary to meet all [Town 1] building codes.

   h)That the husband be entitled to rent the property [C Street, Town 1] through [D Real Estate] or such other real estate agent as the husband selects.

   i)The husband to sign any rental agency agreement on behalf of the wife.

   j)The wife be at liberty to retain all net rental income derived from the rental of [C Street, Town 1], pending further Order.

3. On the hearing of the matter the respondent husband consented to orders which were made in the following terms:

   a)That within 14 days of the date of the making of this Order, the husband pay to the trust account of Broun Abrahams Burreket the sum of $571,953 to be applied to the wife’s costs of and incidental to these proceedings.

   b)That the wife shall not permit any of the above monies to be used for any purpose other than the payment of legal costs and disbursements in relation to these proceedings and in the event the funds are not exhausted for that purpose by the conclusion of these proceedings, then the wife shall cause any such surplus to be returned to the husband.

4. On 2 September 2009 the parties consented to orders at which time the Court noted the terms of an agreement between the parties in the following terms:

   a)That it be noted that the wife will be meeting the expenses of herself and the child [L] in respect of the planned trip to New Zealand from the sum and that accordingly the application presently contained in interim order No. 8(d) of her amended application filed 31 July 2009 will have no further utility.

   b)The court notes that the husband contends that the sum is intended and should be taken into account as:

   (i)$16,000 being the husband’s contribution to the costs of travel for the wife and [L] to New Zealand; and

   (ii)The balance to be utilised on account of the wife’s costs.

   The court further notes that these contentions are and will be disputed by the wife.

c)The court notes that pending determination of the application referred to in paragraph 1, in addition to the payment of the sum the husband will continue to provide for the benefit of the wife and [L] the sum of $2,600 per week and additionally pay in respect of the home at
[Z Street in C], all expenses as and when they fall due in relation to each of:

(i)House and contents insurance;

(ii)Telstra accounts;

(iii)Gas accounts;

(iv)Big Pond accounts in respect of services utilised at the said home;

(v)Electricity accounts;

(vi)Municipal and Water Rates.

1. Subsequently on 4 November 2009 the Court made orders, inter alia, in the following terms:

   That until further Order the husband shall continue to make the payments referred to in paragraph 6 of the Consent Orders made in these proceedings on 2 September 2009 and further he shall make the other payments that he has identified as additional payments in paragraphs 8 and 13 of his Affidavit sworn 30 October 2009.

2. On 6 November 2009 and 16 December 2009 the husband provided the wife a lump sum amounting to $700,000, pursuant to an order in the following terms:

   That the husband shall pay to the wife by way of interim property settlement the sum of $700,000 (“the sum”) but on terms that the parties acknowledge and agree that at a final hearing of the proceedings for property settlement it shall be open to the wife to advance a case to the trial judge that part of the sum should properly be treated as spouse maintenance and/or child support (or funds applied to meet the joint obligation of the parties to provide for [L’s] proper financial support) rather than in satisfaction of her property settlement entitlement and it shall be open to the husband to argue to the contrary.

   It was acknowledged that, when awarded, that sum was in part to cover the wife’s costs in New Zealand for a period of time.

3. It was said by the wife, and information was provided in a number of schedules as to her expenditure of that money, that a portion of it was to be properly treated as partial property settlement (for example, paying for airfares of a relative to travel overseas), and some it ought properly to be categorised as maintenance.  The categorisation of that sum is a matter for the trial judge on hearing.

4. It was clear that the wife continued in her claims for orders for spousal maintenance and either a variation of prior orders, or alternatively a departure from the child support assessment.  The husband opposed any orders being made and sought orders setting aside the prior orders which he said were incompetent.  The husband also sought orders which would facilitate the letting of a property registered in the name of the wife at Town 1 which was untenanted and which the wife had previously said was unsuitable for her to occupy.  He sought that the rental be paid to the wife and said that such sum would be able to be applied by her for her support.  The wife’s representatives said that, having regard to the late notice and their client’s residence in New Zealand, they were unable to obtain instructions in relation to the order sought and sought that they be adjourned to another date for hearing.

5. In early discussion with the applicant’s counsel the prospect was raised by the Court that consideration might be given to a partial property settlement or, alternatively, an order which permitted of that classification of the payment as one of a number of categories on hearing.  The hearing of this matter is fixed for 30 January 2012 to 3 February 2012.

6. It was in due course asserted and not gainsaid that if the pool of assets was put at the value ascribed to it by the husband, and even allowing the possibility of a taxation liability of $2,500,000, there would be, on the husband’s assertion of what the wife should get, at least the sum of $1,000,000 available to the wife, taking into account what she had received already capable of being categorised as a part property settlement, including the amount ordered to be paid above.

7. The husband said that:

   (a)he had come to court to answer a claim for periodic maintenance and did not want considerations to be given to interim property claims

   (b)the expenditure which the wife claimed as reasonable was in respect of some matters extraordinary and in the realm of luxury and not necessity

   (c)the wife had failed to provide sufficient particulars of expenditure which were up-to-date to allow the Court to rest comfortably that any order it made would reflect current need

   (d)the wife had income-earning capacity which was being wasted in that property not occupied by her was not let and, even if the injunctive orders sought by the husband permitting him to let that property were not made, the Court should take into account that potential income.  The wife replied that since she was in New Zealand at the present time she was unable to make letting arrangements

   (e)his income rests in “[payments]” derived from a recreational activity as part of a club.  Although it has been successful in the past it is noted that the income varies from time to time and that the husband only receives dividends from the club at the discretion of the major members.  He has not received any payments since May.  He continues, as does the wife, to hold property of significant value and, at present, there is no indication from either party that they wish to dispose of that property

   (f)judges, in fact, do not often take into account payments made prior to trial and he opposed the making of the orders.  The Court does not accept that, where properly argued, the Court does not take into account payments which can properly be categorised as partial property settlement, and that may include payments made on recurring or other bases being expenditure considered by the Court as unreasonable or unnecessary or overly indulgent.

8. The wife, for her part, was prepared to accept that such a partial property settlement could be made and was prepared to leave it to the hearing for the categorisation of the payment to be undertaken.

9. The wife sought an amount of about $350,000 to cover a period of six months.  On the hearing the wife significantly reduced the periodic sums she sought from her original application.

10. One of the problems in this case is that many of the issues between the parties cannot be resolved on an interim basis since the evidence is not presently tested.  In due course, the Court will be better able to come to a conclusion as to what, if any, is a reasonable amount for the wife’s expenditure and child support, and whether or not the wife is able to meet her own reasonable needs.  The Court will be better informed possibly as to the husband’s capacity to pay.

11. If, in due course, the Taxation Office issues an assessment, it seems more likely than not that any such liability, if created, will be one which will affect the asset pool to a significant extent.  It is pointed out by the wife that the parties have sufficient other property to meet the assessment if made but their liquid funds presently held will be diminished.

12. Both the husband and the wife seek that the orders previously made be set aside and the Court, given their consent, will do that, in so far as it relates to the payment of the sum of $2,600 per week to the wife.

13. The wife’s present claimed need for the support of herself and her child is substantial.  It does however appear to contain elements which are not quantified with precision.  Given that this matter is fixed for hearing, the Court proposes to set aside the previous orders referred to with respect to payments of the sum of $2,600 per week but not otherwise, and leave the others as to payment of outgoings in place.  It will at this time make an interim order that the husband pay to the wife the sum of $117,468.  This figure is based on an aggregation for about six months of the payments formerly made by the husband pursuant to Order 12 of the Orders made on 4 November 2009, and an additional contribution to the costs assessed by the wife for her and the child for three months in New Zealand.  That basis for quantification is not, however, intended to be binding in any way on the trial judge, given the lack of testing of the evidence and the extent of the factual dispute between the parties as to what comprises an accurate assessment of the net needs of the wife and child.

14. The Court is not, absent a proper consideration and testing of the evidence by cross-examination, prepared to accede to the wife’s claim for a payment in the order of about $350,000.

15. The husband’s application for injunctive relief is adjourned for further consideration when the matter is next listed before the Court.  In relation to that application the wife is to file any material in opposition to it within 21 days of today’s date.

16. The payment of $117,468 is to be given its proper categorisation by the trial judge on the final hearing of the matter.

17. The matter is otherwise adjourned to the date of its next listing before the Court namely 10.00 am on Thursday, 6 October 2011.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 27 July 2011.

Associate:   

Date:  27 July 2011