Martin and Martin (No 2)

[2010] FamCA 820

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN (NO. 2) [2010] FamCA 820

FAMILY LAW – SPOUSAL MAINTENANCE – Case management orders

APPLICANT: Ms Martin

RESPONDENT: Mr Martin

FILE NUMBER: DGC 168 of 2010

DATE DELIVERED: 9 September 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 9 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Maria Barbayannis & Co

COUNSEL FOR THE RESPONDENT: Ms Wynne

SOLICITOR FOR THE RESPONDENT: BJ O’Connor Lawyers

Orders

IT IS ORDERED:

1. THAT until further order and as interim spousal maintenance the husband pay to the wife the sum of $600 per week the first payment to be made Friday 10 September 2010 and weekly thereafter, such payments to be made to a nominated bank account of the wife (the particulars of which are forthwith to be advised to the husband and his solicitor) and such payment to be made by way of direct debit.

2. THAT in addition to the spousal maintenance order the husband, until further order on an interim basis continue to maintain the current lease payment, as and when it falls due, related to the wife’s use and enjoyment of her Nissan XTrail motor vehicle.

3. THAT the extempore reasons for judgment delivered in respect of such spousal maintenance order be transcribed, placed upon the Court file and be made available to the parties.

IT IS FURTHER ORDERED BY CONSENT:

1. THAT leave be granted to the wife and her solicitors to join as parties in the proceedings the company Martin & Martin Pty Ltd and Mr M Martin.

2. THAT the wife forthwith serve each of the third parties with all relevant and outstanding applications, affidavits and court documents, in compliance with the Family Law Rules 2004 and file an affidavit of service as to the compliance with such order.

3. THAT as soon as practicable the husband instruct his solicitors to provide to the wife’s solicitors the following documents:

   (a)documentary evidence as being source documents from the relevant lending institutions as to:

   (i)all loans applied for by the husband or by entities in which he has had an interest or any level of control for the past two (2) years;

   (ii)all current liabilities of the husband, personally or within any entity in which he has or had an interest or a level of control over the past two (2) years;

   (b)copy leases in respect of all premises leased by the husband either personally or by any corporate entity in which he has had or continues to have an interest or level of control over the past two (2) years;

   (c)copy trust deeds in respect of all trusts in which the husband has or has had an interest or any level of control over the past two (2) years;

   (d)all bank and credit card statements for all accounts in which the husband personally has or has had an interest, or via any corporate entity, over the past two (2) years;

   (e)all outstanding taxation returns of all companies, trusts or other entities in which the husband has had or continues to have an interest, entitlement or any level of control from 1 July 2005.

4. THAT otherwise the wife’s application in a case filed 1 September 2010 be and is hereby dismissed.

5. THAT the costs of the wife of and incidental to the proceedings this day be reserved to the adjourned hearing date.

6. THAT all extant applications otherwise be adjourned until 10.00 a.m. on 11 November 2010.

7. THAT the further extempore reasons for judgment be transcribed, placed upon the Court file and be made available to the parties, including the additional respondents as joined by the wife.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the Wife and Husband.

IT IS NOTED

A.THAT the wife has advised the Court that she does not acknowledge that the husband has in any way fully complied with paragraph 5 of the orders made 22 July 2010.

B.THAT the husband, through his legal practitioners, consented to the company Martin & Martin Pty Ltd being joined by the wife as party to the proceedings.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1658 of 2010

MS MARTIN

Applicant

And

MR MARTIN

Respondent

REASONS FOR JUDGMENT

1. I have before me in this matter an application for spousal maintenance.  There are other matters that I will hereafter deal with, but these ex tempore reasons for judgment deal only with the interim payment, pending further order, of spousal maintenance.  Mr Davis of counsel appears for the wife;  Ms Wynne of counsel appears for the husband.  Both parties and instructing solicitors are in Court.

2. In the wife’s amended initiating application filed 19 July 2010 she there identified, as an order sought, the payment of appropriate periodic spousal maintenance along with other orders which are not presently before me.  In her application in a case filed that same day, in paragraph 2 thereof, the wife identified payment of $600 per week as interim spousal maintenance and additionally sought the payment of that sum to be backdated to the date of separation, which in this matter was 14 December 2008.

3. In his submissions before me on the papers Mr Davis has highlighted the need for the immediate payment of $600 a week, but I have not otherwise received submissions on the backdating of that amount, and that would involve a reasonably substantial sum of money, certainly of or about $40,000. I have no evidence of lump sum cash availability.  That matter can await another day if it is thereafter to be pursued by or on behalf of the wife, but I approach the matters before me strictly on an interim basis, and on the papers, for the payment to now be made of $600 per week and for that to be ongoing, pending further order.

4. The wife relied upon her financial statement of 27 January 2010, though that has been somewhat updated by her counsel in his submissions.  That financial statement shows that the wife was in receipt of $391 as a supporting parent’s pension and family tax benefit.  The wife now resides in rented accommodation with the three children of the marriage, whose ages are approximately ten, six, and three years of age.

5. There was previously a Child Support Assessment whereby the husband was to pay $350 per week.  That assessment is current, but for the reasons that I will outline shortly, those moneys are presently not being received by the wife.  It is important to understand that there is a very specific provision in the Family Law Act 1975 (Cth) relevant to spousal maintenance claims and that is provided for in section 75(3) of the Act. Where it is said that in exercising its jurisdiction under section 74, a Court shall disregard any entitlement of the party whose maintenance is under consideration to an income-tested pension, allowance, or benefit.

6. The relevant sections of the Family Law Act for the payment of spousal maintenance are section 72 and section 74.  I have read and had regard to each of those sections.  I therefore highlight at the outset that the wife’s pension income from government sources is not to be brought to account as monies received by her.  The logic is simple: the primary obligation to support a spousal partner and children is of the wage-earning spouse, and on the facts of this case, that is the husband.  The wife otherwise declares no income, save the issue of child support.

7. The financial statement of the wife discloses $525 per week as being, on the monies then available to her, her average weekly expense.  The document is structured upon the husband continuing to make the payment for her Nissan X‑Trail motor vehicle, and that is said to be $126 per week.

8. The other document filed on behalf of the wife is her affidavit filed 19 July 2010, and that is relevant as to the issue that has arisen with the property at A.  Seemingly, at separation, the wife and children were living in unit in A.  That was owed by an entity in the circumstances described in paragraphs 9 and 10 of that document.  Ultimately, the unit was sold and the wife needed to find alternate accommodation for herself and the children.  She now lives in rented accommodation and pays $390 per week.  Her new unit is in the south eastern suburbs, and whilst it is not in the document, as was previously filed, there perhaps is little debate that monies are provided to her by her extended family to meet that current payment.

9. The overview of the wife’s circumstances is thus she has no income from gainful employment, leaving aside the government pension income.  Otherwise she has an obligation to feed, clothe, and support three young children, to pay rent and to maintain some lifestyle for them. 

10. It is established that there is a need and, prudently, that was not challenged by Ms Wynne for the husband.  Section 72 of the Act requires a party to a marriage to maintain the other party to the extent that that person is reasonably able so to do, if, and only if, that party is unable to support himself or herself adequately, having regard to the care and control of children or other health reasons.  In that regard I paraphrase section 72(1) of the Act.  I have taken a moment to highlight that what is not in contest is the need of the wife for income to support herself and the children.

11. As I can best understand the somewhat convoluted child support circumstances, it is that the husband was assessed to pay $350 per week.  At some time past he challenged that assessment, as was his right so to do.  He did so on the basis of the past obligation of him to pay expenses or outgoings of and related to the A unit.  I do not have the documents before me, but I am told from the bar table that his challenge was successful.  The effect of that is that the wife has and is not now receiving any payment of child support monies.  There was, seemingly, assessed to be an overpayment to her, and each week, in lieu of receiving money, the Child Support Agency is debiting her ledger showing a paper payout to her, but no actual physical moneys are being paid for the support of the children.

12. To complicate matters, the husband says that he did make a child support payment on 16 August in the sum of $1400 per week and would next intend to make a payment next Thursday, 16 September of that same amount.  The simple reality in a case where money is alleged to be tight and/or is not available to the husband on his evidence, is that he is substantially in credit with the Child Support Agency and the payments now could be better made to the wife so the children can be fed and maintained.

13. There will have to be immediate approaches to the Child Support Agency to ascertain the actual credit balance that the husband has established and/or payments out to the wife and her current indebtedness to that agency.  I have no evidence before me, and I will not be making any orders directed to the Child Support Agency at this stage.  Though, appropriately, there does need to be some reconstruction of her debit account and a cancellation, at least in the short term, of the husband’s ongoing payments thereto and whilst he remains in substantial credit.

14. The second limb of section 72 of the Act is that what the husband can afford, on the facts of this case, to pay to his family.  The first financial statement of the husband was filed 12 March 2010.  That was before me at the prior hearing of this matter on 22 July.  That document was then somewhat incomplete and I directed, in paragraph 4 of my orders that day, for the husband to make, file, and serve an updated and detailed financial statement.  I now have a document filed 25 August 2010 prepared by the husband’s solicitor.  The document is somewhat incomplete.  Certainly, paragraph 11 provides no assistance to the Court. 

15. Taking the document on its face and given that it is appropriately sworn and adopted by the husband, it details his average weekly income at $1500.  That includes a vehicle provided for the husband at $250 per week and otherwise, a cash payment of $1250.  Income tax is paid in the sum of $177 per week and, thus, the husband has $1073 per week after tax.  The other two expenses are said to be child support at $350 a week and credit card repayments of $102 a week.  Additionally, the husband’s submissions, through his counsel, is that he pays $126 per week for the wife’s third party lease on the motor vehicle which she and the children use.

16. I accept the husband pays and will continue to pay that outgoing for the wife, as clearly she must have a car with the children, in the same way as the husband has a car for himself and which, I note, is double the weekly cost to him.  After payment of that car for the wife, on the husband’s evidence, there remains $947 per week.

17. His evidence, as to his expenditure, is that $250 is required for his weekly support.  He asserts another $100 for the children, but I have limited evidence as to the time they are spending currently with him and how he spends $100 per week additionally on them and when they are with him.  On the basis of $947 available income, the orders that I will make are interim orders.  I emphasise that, because they are made in the context of better understanding the child support payments.  I will list this matter before me on a date later this year.

18. Mr Davis has advised the Court that his client will be engaging, privately, an accountant to ascertain income and assets of and related to the husband and the various entities.  If and when that evidence is available, it may throw light upon the financial circumstances of the husband, his income and lifestyle.  I make no further comment upon that at this stage.

19. What I do not require the husband, in the interim, to do, is to continue to pay $350 to the Child Support Agency and $600 to the wife - that is $950 per week - plus the motor vehicle at $126.  That would be excessive on the limited information now before me.  I appropriately record that the husband, through his business, is able to provide food for the family, specifically to a value of $300 per week, and that has the benefit of ensuring the children have good and proper food. That would seem to be a matter incidental to the husband’s employment and what he has available to him.

20. The issue in the context of the husband’s capacity to pay is simply that he has $947 per week.  After payment of the Nissan X-Trail of $126 - and that payment must continue.  It is evident that there are the wife and three children – that is four persons on one side and the husband alone on the other side.  $947 after the husband’s tax and his motor vehicle, and the wife’s motor vehicle, can be fairly and reasonably divided as to $600 for the family and $347 individually for the husband.  On that basis, he has the capacity to meet his stated personal expense of $250 per week and also his credit card payment of $106 per week.  Taking the document at face value, that does justice to all parties.

21. I record that this matter is likely to be differently considered at a future time, when there is more particular and helpful evidence about child support before the Court.  I do understand that at the time when the wife filed the document she was seeking $600 per week as personal maintenance and $350 additionally for the children.  That is $950 per week plus the car payment.  On the material before me, I do not make the payment in that quantum.

22. I repeat that I am not directing any order to the Child Support Agency, and because of the established credit to the husband, that current payment, upon proper notification to the agency, will not be paid or enforced in the immediate short term.  What I require, commencing immediately, is the payment of $600 per week to the wife and the continuation of the payment of $126 for her motor vehicle.

23. I intend to make orders to that effect and the other matters before the Court can resume at an appropriate time.  The orders will be made on an interim basis.  I will direct a transcript of these reasons for judgment be taken out and made available to the parties.  It would be prudent for these brief ex tempore reasons and with all of the qualifications therein to be provided to the Child Support Agency so they can understand the interim logic and approach that I have taken in this contested interim hearing.  I will hereafter pronounce the order for both $600 per week and the payment of the Nissan X-Trail at $126 when I pronounce other orders. 

24. The matter of Martin is continuing before me, and these brief reasons touch on the balance of matters other than the spousal maintenance application, which I earlier determined.

25. It was not then raised, but Mr Davis has now requested of the Court, that maintenance payments be paid to a bank account of the wife, as nominated by her, and that is consented to on behalf of the husband.  Likewise, there is now agreement at the bar table the payments can be made on a direct debit basis pending further order.  I emphasise that the spousal maintenance order remains until further order and is interim in its nature.

26. The next issue is as to disclosure and discovery of documents, primarily of a commercial or financial nature.  Mr Davis, on behalf of the wife, has alleged that the husband has not wholly complied with paragraph 5 of my earlier order dated 22 July 2010.  Ms Wynne, in response, has indicated that production of documents is an ongoing and continuing process and acknowledges that there are more documents to be located and disclosed.  What has been agreed out of Court, by consent, are further documents to be provided, and I will hereafter make on a consent basis orders for the disclosure and production of documents, as have been presented to me in a draft consent minute this day.

27. The application of 1 September 2010, filed by the wife, seeks to join in the proceedings a company, Martin & Martin Pty Ltd, of which it is now advised that the husband is sole director and sole shareholder.  There is no opposition to that entity being named by the wife as a respondent in the proceedings.  The further application of the wife is that for the brother of the husband, M Martin, to be likewise joined as a party in the proceedings.

28. Having regard to Family Law Rule 6.03, a party may include another party as a respondent by naming that person in the application.  That may occur after a case has started, pursuant to subparagraph (2) thereof and subject always to appropriate service of documents upon that other person.  This case has had a hearing before a Registrar and an initial conciliation conference which was wholly unsuccessful.  I do not read there to be any limitation within the Rules of adding a party at this stage of the proceedings.  The reality of this case is that there is much disclosure and, no doubt, evidence and, no doubt, future hearing awaiting the parties unless there is a new approach taken and an abundance of common sense applied.  I leave that matter to solicitors.

29. I will, as a precaution, formally give leave for the wife, in redrawing applications before the Court, to add the brother of the husband as a respondent, but it would appear that that was a right available to the wife under that rule.  I have been given a document which has been marked as exhibit “1” and which is an acknowledgement of service upon the brother of various documents, including the 1 September application of the wife, a Court brochure pursuant to order 25 of the Rules, and other affidavits of both the wife and the solicitor, Ms Barbayannis. Not all documents, it would seem, were appropriately served upon the brother, and there will need to be a re‑service of all documents upon him forthwith.  In due course, an affidavit of service must be filed.

30. I have heard from Mr Davis that they will be engaging their accountant to make financial enquiries of the asset pool of the husband’s income and all related financial matters.  No order is required in that regard.  Likewise, no valuation order, as foreshadowed in respect of the property at N is now required.  If the wife wishes to value that property, she may do so herself or may, as between solicitors, arrive at some agreement in that regard.

1. I will adjourn all extant applications that remain alive for a hearing of up to two hours’ duration before me on 11 November at 10 am.  The wife does not seek to quantify any costs of this day, but merely to reserve the cost to that adjourned hearing date.  There is no opposition to the reserving of costs, which would seem appropriate, and I will so order.  Likewise, I will have these ex tempore reasons for judgment transcribed and placed upon the Court file, and made available to all parties.

2. It is noted:

   (a)The wife has advised the Court that she does not acknowledge that the husband has, in any way, fully complied with paragraph 5 of the orders made 22 July 2010.

   (b)The husband, through his legal practitioners, consented to the company, Martin & Martin Pty Ltd, being joined by the wife as a party in the proceedings. 

I certify that the preceding thirty two
(32)  paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young delivered on
9 September 2010.

Associate: ……………………………………………………………

Date:  …………………………………………………………………