Mason & Mason

[2009] FamCA 484

FAMILY COURT OF AUSTRALIA

MASON & MASON [2009] FamCA 484

FAMILY LAW – PROPERTY – Interim

APPLICANT: Ms Mason

RESPONDENT: Mr Mason

FILE NUMBER: MLC 10631 of 2008

DATE DELIVERED: 13 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 13 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P.M. O'Shannassy

SOLICITOR FOR THE APPLICANT: Richard Calley Family Law

COUNSEL FOR THE RESPONDENT: Mr G.R. Atkinson

SOLICITOR FOR THE RESPONDENT: Clancy & Triado

Orders

1. My reasons for judgment given this day be transcribed and retained on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10631 of 2008

MS MASON

Applicant

And

MR MASON

Respondent

REASONS FOR JUDGMENT

1. The parties have lived together since 1985.  They married in 1990.  They separated in 2007.  Property proceedings were commenced in November 2008.  They had a case assessment conference on 9 January 2009 and the wife issued this amended application in a case on 16 April 2009.  It relates to spousal maintenance and a Barro application, put in broad terms.

2. I am going to give the briefest reasons for my decision today because there has been a great deal of discussion and I have made my views clear.

3. The first lot of orders will be to ensure that the major expenses faced in the wife's household shall be met from the family business that the husband presently controls.  One way or another, he has agreed to pay a number of particular accounts and it is common ground that they will amount to $2,900 per week, plus the children's school books and school requirements that have not been properly calculated.  Included within that amount is the sum of $450, drawn from the business for the wife.  She seeks that that amount be increased to $1000.

4. I am satisfied, looking at the material, that the parties had a standard of living such that most of the expenses claimed by her as living expenses - that is, amounts over and above the various bills that the husband is going to make sure are met - are reasonable.  It is argued for the husband that many of them are not.  It might well be that some are and some are not, but I am not going to be able to make any final ruling on that today.  It does seem clear however, that she is going to need more than the $450 per week for all the various day‑to‑day living expenses for herself and two teenage children. 

5. The issue is that it reaches a point where the husband's capacity to pay, via the business, is really pushed.  On the figures - and I have to say there is a dispute between the parties as to the value of the business - but on the figures currently to hand, I am satisfied that what is being met, something around $150,000 per year, is very much at the upper end of what can be afforded.  In difficult economic times, about which I think I can take judicial notice, and at a time when the one business is trying to support two households, I do not at an interim stage want to do anything to “tip things over the edge”, and I must seriously take into account the capacity for the husband to be paying more than $150,000 a year through the business.

6. That said, I am conscious there are some shares worth about $25,000 to $28,000.  The husband has not disagreed that those can be sold.  He said it would be fair for the parties to each retain half the proceeds.  I am going to order at this stage that the wife retain the proceeds of the shares, and that the proceeds are later to be characterised by the trial Judge.  She says it will be used to pay off her credit card, and it then gives her some leeway so that she can meet additional living expenses, but it is up to the trial Judge as to whether it is characterised as spousal maintenance or property.

7. The wife also has an application for a Barro order.  She asked for a very substantial sum of money that mostly cannot be justified because it actually related to future legal costs, taking the matter right into the future to a final hearing that is not yet on the horizon.  That is not reasonable.

8. When it is pared back, she was seeking just under $34,000 to cover particular disbursements.  They are for valuations to be done.  Mr Atkinson for the husband argues that they are all unnecessary because there has been a single valuer's report, and the wife has already had the opportunity to challenge and ask questions about it.

9. I am satisfied that it is an appropriate case, given the chasm in the expectations of each party as to the business valuation, for her to obtain some further adversarial assistance. For example, she says that the company's stock, which the single expert has included at $393,000, is in fact worth $3.6 million.  That is a huge differential.  If it transpires that she has been fanciful in her version, then she will meet the costs consequences of that, but it is something that I think she should have the opportunity to clarify at this point.

10. As to the costs or the disbursement that she should reasonably meet or the moneys she should expend at this stage, she has a quote for $16,700 for the valuation of stock and plant and equipment and $7000 for another valuation of the business.  Mr O'Shannassy quite rightly concedes that if she is only going to have part of the work done by an accountant now, that is, between the critical assessment of the single expert's report and the accountant's own valuation, it would be a better expenditure of money to have the accountant's own valuation.  That means that it is a sum of $23,700 that she will require.  She requires $16,700 first and $7000 second.

11. I accept that the husband has sworn that if a very substantial sum needed to be drawn against the business overdraft, it could put the business in jeopardy, but if it is these two smaller amounts, and the amounts are staggered, I am satisfied that that is within manageable limits and will help to move the case forward properly to a hearing.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  13 May 2009