Masoud and Masoud (No. 2)
[2012] FamCA 946
FAMILY COURT OF AUSTRALIA
| MASOUD & MASOUD (NO. 2) | [2012] FamCA 946 |
| FAMILY LAW – PROPERTY – Interim distribution – whether appropriate and in the interests of justice to make an interim property order FAMILY LAW – PROPERTY – Spousal maintenance – interim FAMILY LAW – PROPERTY – Child support – interim |
| Family Law Act 1975 (Cth) |
| Gabel & Yardley (2008) FLC ¶93-386 Strahan & Strahan [2001] FamCAFC 166 Harris & Harris (1993) FLC ¶92-378 Zschokke & Zschokke (1996) FLC ¶92-693 Osferatu [2012] FamCA 408 |
| APPLICANT: | Ms Masouda |
| RESPONDENT: | Mr Masouda |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 2198 | of | 2012 |
| DATE DELIVERED: | 16 November 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 19 and 24 October 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirk SC |
| SOLICITOR FOR THE APPLICANT: | Watts McCray |
| COUNSEL FOR THE RESPONDENT: | Mr North SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
| INDEPENDENT CHILDREN’S LAWYER: | Excused from attendance |
Orders
It is ordered pending further order that:
The wife be entitled by way of partial property settlement to draw down from the parties’ jointly held Commonwealth Bank of Australia (CBA) account the following amounts:
(a)$350,000 to be paid to the wife’s solicitors to enable the legal costs of and incidental to these proceedings to be paid. It is noted that such payment is to be made by way of partial property settlement and any sum not so utilised will be repayable to the wife
(b) $200,000 to be paid to the wife and
(c)as to the payment under (b) above, the final characterisation of such payment whether as maintenance or otherwise is to be determined by the trial judge.
The husband be entitled by way of partial property settlement to draw down from the parties’ jointly held CBA account the following amount:
(a)$350,000 to be paid to the husband’s solicitors to enable the legal costs of and incidental to these proceedings to be paid. It is noted that such payment is to be made by way of partial property settlement and any sum not so utilised will be repayable to the husband.
The parties are in addition to allow for the release of sufficient funds from the parties’ jointly held CBA account to enable the wife to purchase a motor vehicle of her choosing of a cost not in excess of $82,000, subject to the parties’ existing Volkswagen motor vehicle being traded in or, if a trade in is not accepted, sold upon the wife’s purchase of a motor vehicle, and in that event the proceeds of sale of the Volkswagen motor vehicle are to be paid into the parties’ jointly held CBA account from which the purchase funds have been drawn.
The husband is to pay the ongoing expenses associated with the wife’s new motor vehicle including costs for registration, insurance and repair and maintenance work but excluding costs for petrol and any expenses arising from the wife’s negligence.
The husband is to pay to the wife or as she may direct child support of $600 per week for each of the two children in her care in addition to paying the following other expenses for each of the three children:
(a)school fees at the schools that the children currently attend and associated costs, excluding any optional fees for excursions costing more than $100 unless otherwise agreed by the husband in writing
(b) private health insurance at the current level of cover
(c)all agreed orthodontic, hospital, optical, physiotherapy, podiatry and other agreed medical specialist fees or expenses not able to be recovered from private health insurance and
(d)extra-curricular activities where the children’s participation in such activities is agreed to in writing by the husband prior to the commencement of the activity.
The amount payable by the husband under the provisions of order (5) be credited against the husband’s liability under any administrative assessment payable by the husband to the wife and is to count for 100 per cent of the annual child support payable by the husband under any administrative assessment of child support payable by the husband to the wife.
The application for periodic spousal maintenance made by the wife at this time is dismissed.
The wife unless otherwise agreed between the husband and the wife is restrained (unless she has beforehand given to the husband 28 days’ written notice of her intention to do so or otherwise procured his consent in writing to such dealing) from transferring, assigning, granting any charge or mortgage over, further encumbering or otherwise dealing with all of her right, title and interest in the following properties:
(a) Property H, Queensland
(b) Property W, Queensland
(c) Property C, Queensland
(d) Property O, Queensland and
(e) Property D, Queensland.
The wife is to do all acts and things and sign all documents to provide her consent to the husband to lodging caveats over the properties listed in Order 8(a)-(e) above to protect his right to notice under that Order.
The husband is to within 30 days from the date of the making of these Orders return to the wife all of the wife’s jewellery in his possession, power or control.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masoud & Masoud has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 2198 of 2012
| Ms Masouda |
Applicant
And
| Mr Masouda |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application for interim orders in relation to parenting and property proceedings between the husband and wife to a marriage.
The husband and wife were married for approximately 16 years and there are three children of the relationship.
The primary proceedings were commenced in the Federal Magistrates Court of Australia by an urgent application filed by the wife shortly after the parties separated for a final time in April 2012. Interim parenting orders were made by Sexton FM and the matter was thereafter transferred to the Family Court of Australia.
The proximate proceedings were brought on an application of the wife for interim property settlement and parenting orders.
With respect to the parenting issues, the parties came to agreement in relation to the appointment of a Family Consultant to prepare a Family Report and the Court made such orders by consent on 19 October 2012.
With respect to the interim property settlement issues, the wife seeks orders to the following effect:
(a)That the sum of $1,550,000 be released to the wife from the monies held in the parties’ joint CBA account by way of partial property settlement as follows:
(i)$500,000 for the wife’s legal costs
(ii)$250,000 for the wife’s other expenses and
(iii)$800,000 for the wife’s father as repayment of the debt that the wife claims is owed to him from a written loan contract executed in 2000.
(b)That the husband pays to the wife spousal maintenance of $3,000 per week in addition to the payment of other expenses.
(c)That the husband pays to the wife $1,000 per child per week in child support in addition to the payment of the children’s school fees and other expenses.
(d)That the wife has exclusive use of the Land Rover motor vehicle and that the husband pays all payments on any loan attaching to the Land Rover vehicle and any expenses in relation to the vehicle.
(e)That the husband pays the wife’s costs of and incidental to these proceedings on an indemnity basis.
The husband seeks on the hearing of this application orders to the following effect:
(a)That each of the parties receives by way of partial property settlement the sum of $500,000 and that no payment should be calculated with respect to the alleged debt owed to the father.
(b)That, pending further order, the wife both personally and by her attorneys, unless otherwise agreed between the husband and the wife, be restrained from transferring, assigning, granting any charge or mortgage over, further encumbering or otherwise dealing with all of her right, title and interest in the properties located at:
(i)Property H
(ii)Property W
(iii)Property C
(iv)Property O and
(v)Property D.
(c)That the wife do all acts and things and sign all documents to provide her consent to the husband to lodge caveats over the properties listed above.
(d)That, conditional on the above orders being made, the parties do all things and sign all documents necessary to cause the sum of $312,518 to be withdrawn from the funds held in the parties jointly held CBA account, with such funds to be immediately paid into the CBA account (8246), and that the wife do all things and sign all documents necessary to allow for the loan secured by way of mortgage over the Property C to be discharged.
(e)That pending further order the wife pays her half share of all repayments for all loans secured by registered mortgage over the properties at:
(i)Property O and
(ii)Property D.
(f)That pending further order the husband pays to the wife spousal maintenance in such sum as the Court deems appropriate up to the sum of $200 per week, with the first payment to be made within seven days of the date of these orders.
(g)That the parties be required to release from the jointly held account sufficient funds to enable the wife to acquire a motor vehicle of her choosing to a value not in excess of the $82,000 subject to the Volkswagon vehicle being traded in on the purchase of a vehicle for the wife.
(h)That the husband pays the wife’s expenses relating to the vehicle purchased pursuant to the above order including only CTP and comprehensive insurance, registration, log book servicing, maintenance and repairs as required except those arising from the wife’s negligence.
(i)That the husband pays the costs of the wife’s health insurance at the existing level.
(j)That by way of departure from the Administrative Assessment of Child Support the husband pays periodic child support of not more than $220 per week for the children in addition to non-periodic child support as and when it falls due for the children’s:
(i)school fees and associated costs at School A in Sydney for D and G and at School Y in Sydney for J, excluding any optional fees for excursions costing more than $100 unless otherwise agreed by the husband in writing
(ii)private health insurance at the current level of cover
(iii)all agreed orthodontic, hospital, optical, physiotherapy, podiatry and other medical specialist fees or expenses not able to be recovered from private health insurance and
(iv)extra-curricular activities where agreed to in writing by the husband prior to the commencement of the activity.
(k)That the child support payable by the husband pursuant to the above orders for the period until the happening of a child support terminating event for each child:
(i)be credited against the husband’s liability under any Administrative Assessment payable by the husband to the wife and
(ii)is to count for 100% of the annual child support payable by the husband under any Administrative Assessment of child support payable by the husband to the wife.
(l)That the husband returns to the wife within 30 days of the making of these orders all of the wife’s jewellery in his possession and control.
(m)That the wife pays the husband’s costs of and incidental to these proceedings.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The husband was born in 1967 and is 45 years of age. He is a full-time health professional practising, he says, in a specific field of medicine.
The wife was born in 1969 and is 43 years of age. She is qualified as a health science professional but is not currently working.
The wife and the husband married in 1995 and separated in December 2010. They resumed the relationship in February 2011 for a period of around 14 months and separated for a second and final time on 13 April 2012.
There are three children of the marriage. The first child, J, was born in July 1997 and is 15 years old. The second child, D, was born in August 2000 and is 12 years old. The third child, G, was born in September 2002 and is 10 years old.
On the date of final separation, the husband moved himself, the three children and all of their belongings from the parties’ rental property in Suburb K to a rental property in Suburb U without the consent or knowledge of the wife.
The wife filed an Initiating Application seeking urgent parenting orders on
17 April 2012 and the matter was heard shortly thereafter before Sexton FM in the Federal Magistrates Court of Australia.
At the initial hearing, the husband alleged that the wife had been abusing the drug Duromine (a weight control medication) and that her use of this substance had adversely affected her behaviour, causing her to become abusive towards the children. The husband asserted that the children were at risk of harm when in the care of the wife under the influence of this drug. While unable to make conclusive findings on these untested allegations, Sexton FM took a cautious approach and ordered that the three children live with the husband until the allegations against the wife were adequately tested. Her Honour also ordered that the wife discontinue her use of Duromine and submit to regular urinalysis. The proceedings were then transferred to the Family Court of Australia.
The matter came before Rees J on 3 August 2012. In relation to the previous interim parenting orders, Rees J noted that since April there had been a “substantial change” in circumstances in terms of evidence of the children’s wishes. Her Honour also noted that regular drug tests had shown that the mother had ceased using any substance, including Duromine. Rees J made interim parenting orders to the following effect:
a)that the two youngest children, D and G, live with the wife and spend time with the husband on alternate weekends and at other times and
b)that the oldest child, J, live with the husband and spend time with the wife in accordance with arrangements agreed between the child and the wife.
Her Honour adjourned the remainder of the interim applications and the matter was placed on the Judicial Duty List.
At the hearing before me on 19 October 2012, the parties came to agreement in relation to the issue of appointing a Family Consultant to prepare a Family Report and orders were made by consent in relation to those issues.
Relevant Law: Interim Property Settlement
Any interim property orders that the Court makes in these proceedings must be granted under a power to make such orders and the issues attaching to the exercise of such power must be taken into account.
Section 79 of the Family Law Act 1975 (Cth) (the “FLA”) confers on the Court a power to make orders for property settlement. While there is only a single exercise of power under s 79, the Court may exercise the power through “a succession of orders until the power ... is exhausted” or until a final order dealing with all the known property of the parties is made: Gabel & Yardley, cited in Strahan & Strahan [2011] FamCAFC 166 at [113] (“Strahan”).
Section 80(1)(h) of the FLA confers on the Court a power to “make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order”. Together,
s 79 and s 80(1)(h) confer on the Court a power to make orders for interim property settlement.
The manner in which applications for interim property settlement orders are to be approached was articulated by the Full Court in the case of Strahan. At paragraph 118 of that decision, Boland and O’Ryan JJ stated that there are two stages to the hearing of such an application.
The first stage of this two-part process is the “procedural step” which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) to make an order for partial property settlement before a final hearing. In Strahan, the Full Court held that the circumstances which may trigger the exercise of such power need not be “compelling”. In the words of Boland and O’Ryan JJ at paragraph 132:
... when considering whether to exercise the power under s 79 and
s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
At paragraph 133, the Full Court provided an example of a circumstance that would warrant an appropriate exercise of the power, that being the situation “where one party requires funds to assist in defraying the costs of litigation without which funds an injustice may be caused.”
The second stage of the two-part process for considering interim property settlement applications is the “substantive step”. In relation to this stage the Full Court in Strahan stated at paragraph 135:
... as the jurisdiction under s 79 of the Act is being exercised the provision of that section must be considered and applied but with limitations given that it is not the final hearing. There is also no requirement of compelling circumstances in relation to the substantive step.
Regard must therefore be had to the usual s 79 considerations when determining whether to make orders for interim property settlement, but a detailed analysis of those considerations is not required.
The Full Court then proceeded to discuss a third matter, the “adjustment issue”, which is to be considered after completing the two-stage analysis described above. The adjustment issue was identified in the earlier case of Harris and Harris (1993) FLC ¶92-378 at 79,930 and its importance was further stressed by the Full Court in Zschokke and Zschokke (1996)
FLC ¶92-693. The essence of the adjustment issue is whether an interim property order would give a party so much that it could not be adjusted on a final hearing. In Strahan, the Full Court at paragraph 136 accepted that this is a relevant consideration for an exercise of power under s 80(1)(h) because:
... the discretion conferred by the power in s 79 is to make such order as the Court considers appropriate provided it is just and equitable to make the order in circumstances where the power will not be exhausted by the interim order.
Citing Gabel & Yardley (2008) FLC ¶93-386, the Full Court went on to state that:
... the interim order must be capable of variation or reversal without resort to s 79A of the Act or appeal. As Finn J said at [126] the interim order must be “capable of alteration at any time prior to, or as part of, the final exercise of the s 79 power.
The Full Court at paragraph 139 also emphasised that, when determining whether the circumstances are such that it would be an appropriate case for an interim property settlement order, “more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.”
The wife makes a claim for an interim property settlement which is in the sum of $500,000 which she says will be used to defray her legal costs of and incidental to these proceedings. She also seeks the sum of $800,000 to repay a loan said to be due to her parents and an amount of $250,000 for her own use. All of these sums are sought by her as partial property settlement.
There was discussion as to the entitlement of the parents of the wife to enforce their “loan”. The husband asserts that the sum referred to is not a loan but was a gift from the wife’s parents. In addition, there was discussion as to whether the loan, in accordance with the terms of the loan document which states that it was repayable one month after a written demand by the parents, was a loan to which the limitation period under the relevant law applied from the date of the making of the loan.
The wife asserts that that is irrelevant in any event to her claim for interim property settlement, since she has said that she will take the consequences if it be subsequently found at trial that the loan either is unenforceable or was a gift. One assumes that if the Court found that no sum was repayable the sum of $800,000 would be treated simply as part of the wife’s property settlement. Whilst it is clear that the Court does not have to require compelling evidence of the need for an interim property settlement, the Court does have to be satisfied that an adjustment could be made on a final hearing to take it into account and that any partial property settlement is possibly recoverable.
There is not in this case a full balance sheet of assets and liabilities available.
It seems that valuations of property may be in issue and certainly corporate valuations have yet to be procured.
The parties’ shares, motor vehicles and furniture all it seems have yet to be valued. It is hard to get other than an assertion of the total value of the property of the parties or either of them less liabilities.
The wife’s assertions
Counsel for the wife asserted that the total value of the parties’ assets is not less than $4,143,982.
The details that the wife has given to support this assertion are as follows.
The former matrimonial home was sold in April 2012 for the sum of $2,550,000. The net proceeds of sale were deposited into a jointly held CBA account, the balance of which is currently $2,505,182.
Additional properties held in the wife’s sole name are:
a)Property C, Queensland, valued at $1,150,000 with a mortgage of $312,000
b)Property W, Queensland, unencumbered and valued at $400,000
c)Property H, Queensland, unencumbered and valued at $300,000.
Properties in which the wife has a 50 per cent interest are:
a)Property D, Queensland. The wife’s share is valued at $325,000 and her share of the mortgage is $248,000.
b)Property O, Queensland. The wife’s share is valued at $300,000 and her share of the mortgage is $120,000.
The parties each have interests in a “L” self-managed superannuation fund which together total $864,800 on one assertion and slightly less on another view.
The wife asserts that the parties have liabilities totalling $1,021,000.
The wife points to the husband’s significant net income said to be in the order of $1,000,000 per year. She also points to the liquid assets held by his practice company. Counsel for the wife asserted that it was open to the husband as the controller of that company to simply pass a resolution lending him the liquid assets, or so much of them as were required, and to apply them to his needs, including any need for costs.
Whilst it might be possible for the husband to do that it is not in the Court’s view something which can be done lightly. Apart from the utilisation of the corporate resources for what is the interest of the husband rather than the company, the company referred to is a practice company of the husband and the vehicle through which he earns income to meet the needs of himself and the wife and their children.
In her affidavit filed on 16 October 2012, the wife asserts that at the time of separation the husband removed items of jewellery to the value of approximately $100,000 that belong to the wife and that had been in her possession during the relationship. During the hearing, Counsel for the husband asserted that this jewellery was “inadvertently” taken by the husband when he removed a cooking pot which unbeknownst to him contained the jewellery inside. Accordingly, the husband proposes that an order be made for the return of this jewellery to the wife and Counsel for the wife asserted that such an order would be encouraged.
The husband’s assertions
The husband has not provided a sworn estimate of the total net value of the asset pool. The best effort of the husband, as submitted by Counsel for the husband at page 58 of the transcript, produced an amount of roughly $4,870,000.
In his Financial Statement filed on 8 October 2012, the husband stated that he owned personal property to the known value of $1,505,291 and that his liabilities totalled $427,015. Significant assets in the husband’s Financial Statement were listed with a “not known” value, including the businesses Masoud Pty Ltd and M Holdings Pty Ltd.
The husband concedes that money is held by his practice company but says that that money is working capital of the company and in effect, if it was deployed for use aliunde, it would not be available to enable him to sustain his income which presently is applied to meet both his needs and the needs of the wife and children. The husband refers to monies being committed from the capital held to the expansion of his rooms and the provision of equipment necessary to enable him to remain if not pre-eminent then at least competitive in his field of practice. It is not the Court’s view that it is at this time appropriate to require the husband to borrow this money and deprive the company of its working capital.
The Court was referred to the case of Osferatu [2012] FamCA 408, a decision of my learned brother Watts J. However that case was concerning people whose marriage was possessed of vastly greater wealth than are the parties in this case and, whilst I respectfully agree with Watts J that maintaining a person at an appropriate level in life may in some cases involve a concept of proportionality, in this case an amount will be allowed to the wife by way of partial property settlement simpliciter and part will be allowed to her by way of partial property settlement on terms that its true characterisation will be a matter for determination of the trial judge. The trial judge will be able to adjust for any lack of proportionality by a finding in relation to that matter on the hearing that some or all of the sum paid to the wife is to be treated as maintenance. This was conceded by Counsel for the wife.
It was proposed by Counsel for the wife that the sum paid to her as partial property settlement and not to be otherwise spent on legal fees should have an income attributed to it, and that that income alone is the amount to be taken into account when determining her capacity to meet her needs.
The Court rejects this view. The need for maintenance is a need which is ascertained having taken into account the income, property (emphasis added) and financial resources of a party.
Given that the characterisation of part of the payment proposed to be ordered by the Court is to be left to the trial judge, it is not the Court’s view that it can ignore the whole of the amount to be paid when considering the wife’s potential unsatisfied needs and an order for maintenance.
Although Counsel pointed to authority suggesting that a party should not have to deplete their capital to support themselves where there was a valid claim for spousal maintenance, the amount ordered to be paid to the wife to use as she pleases is not in the Court’s view yet characterised as her capital and may never be.
Clearly neither party is able at this time to give a definitive statement of the nature and value of the property of the parties or either of them.
I must undertake the step of identifying, as far as the Court can reasonably do on the current evidence, the property of the parties or either of them available for division between them.
It seems that there is a reasonable probability that the assets do comprise those set out below. There are a number of assets said to exist to which no value is ascribed or demonstrated. They are not included.
| No. | Description | (E)$ |
| Assets with an estimated value | ||
| 1 | Realty held in wife’s name: | |
| a) Property C | 1,150,000 | |
| b) Property W | 400,000 | |
| c) Property H | 300,000 | |
| 2 | Realty in which the wife has a 50 per cent interest | |
| a) Property D | 325,000 | |
| b) Property H | 300,000 | |
| 3 | Joint CBA Bank Account 9005 (proceeds from sale of home) | 2,505,182 |
| 4 | Husband’s interest in L Superannuation Fund | 633,800 |
| 5 | Wife’s interest in L Superannuation Fund | 231,000 |
| Total: | $5,844,982 | |
| Liabilities | ||
| 9 | Mortgages over properties held in wife’s name: | |
| a) Property C | 312,000 | |
| b) Property D | 248,000 | |
| c) Property O | 120,000 | |
| 11 | Other liabilities: | |
| a) Loan from wife’s parents used to purchase home | 800,000 | |
| b) Loan from wife’s parents in respect of Property C | 206,000 | |
| c) Commission owed on sale of home | 15,000 | |
| Total: | $1,701,000 | |
| Net Assets (inclusive of superannuation) | $4,143,982 | |
Counsel for the husband submitted that the wife already hold’s 40 per cent of the pool of assets to which either party has been prepared to ascribe an estimated value at this stage. It was further submitted that, if the Court were to make and order that the wife be paid the full amount she seeks by way of partial property settlement, such an amount would not fall within the boundaries of a conservative result.
With respect to the Court’s power to make orders for partial property settlement, Counsel for the husband submitted that the Court should “approach the exercise of the power with a degree of caution and circumspection.” The orders proposed by the wife, it was submitted, would give rise to “the significant risks of endangering entitlements at the end of the day”.
The Court agrees with these submissions and is of the opinion that payment to the wife in the order of $1,550,000, that being the total amount sought by the wife, would not produce a conservative result given the current estimate as to the value of the asset pool. The Court is of the view that it cannot require payment to the wife of the amount which she seeks since in this case, with so much unknown, exercising its power to make orders for partial property settlement in this manner would be inconsistent with its obligation to approach the task with an appropriate level of caution and circumspection. It is however the view of the Court that an amount can and should be provided to the wife.
Section 79(4) contributions to date of separation
Initial Contributions
There is not before the Court evidence of the full extent of initial contributions made by each party.
Contributions during cohabitation
The parties were married for approximately 16 years and there are three children of the relationship.
The wife asserts that she was the primary homemaker and caregiver for the children from the time of marriage until the date of final separation. She also asserts that she worked in the husband’s practice and sacrificed, to a large extent, her professional career in order to support the husband’s career and to fulfil her role as the primary homemaker and caregiver. The wife also asserts that she received financial support from her parents during the marriage.
The husband was the primary breadwinner during the marriage and contributed considerable wealth to the parties’ asset pool through his income as a health professional. The husband also asserts that he took an active role in the children’s schooling and contributed to the welfare of the family as and when his career commitments enabled him to.
Conclusion based on contribution
No conclusion, without the testing of the evidence and the production of appropriate valuation evidence, can be reached finally on this point. It is clear that the wife will have a substantial claim but the quantum of the claim cannot be presently assessed as justifying her claim for interim property settlement in the sum she claims.
Section 75(2) factors
The husband is 45 years old and the wife is 43 years old.
The wife has primary care for the two younger children of the relationship and the husband has primary care for the oldest child.
Both parties appear to be in relatively good health and neither party raised the health of the parties as an issue to be given any special or particular attention at this point of the proceedings.
The wife has previously presented evidence to this Court to support her assertions that she is not abusing the drug Duromine or any other substance. The wife attends regularly upon a psychologist however neither party raised this fact at the hearing apart from in the context of discussions about the wife’s personal expenses.
The husband is currently working full-time as a healthcare professional. He is employed by an Area Health Service and is also an employee and Company Director of Masoud Pty Ltd.
Both parties agree that the husband is considered internationally to be a leading healthcare professional in his field.
In his Financial Statement filed on 8 October 2012, the husband stated that his average weekly income is approximately $6,770. Counsel for the wife submitted that the husband has the capacity to earn income in the order of around $1,000,000 per annum.
The husband’s estimate is significantly less than that. The differential it is suggested by the wife is to be found in the income of the practice company.
It is a matter which is clearly in issue and which needs consideration in due course in a manner where the evidence can be tested.
The wife is not currently employed but is a qualified health science professional. She asserts that at the commencement of the marriage she was working full-time as a health science professional but that she has not worked as a health science professional in Australia since 1996.
Between 1998 and 2000, the wife worked on locums in the United Kingdom while the husband undertook training. Since this time, the wife has worked in limited capacities, primarily supporting the husband’s practice.
In her Financial Statement filed on 11 July 2012, the wife stated that her average weekly income is approximately $3,510 and that this is predominantly received as rent. The Court accepts that the wife has a capacity to earn an income through work in the health science industry but notes her evidence that she feels unable to devote her time and energies to the task of finding employment at this time, due to her commitments to the children and the stresses of this litigation.
It seems clear on the current evidence that the husband is able to command a significant income and that by comparison it is not likely that the wife’s income would be anywhere near that of the husband, even were it the case that the wife was employed as a health science professional.
Conclusion
The Court has come to the view that it is open to it on the known facts and in the interests of justice to make at this time the orders set forth above. The property settlement orders are clearly within range and will assist the representation of the parties being continued. The further order in favour of the wife is yet to be characterised but the wife has established, in the Court’s view, that it is appropriate to make such an order. It is one which can in due course be characterised if that is appropriate in part or in whole as maintenance or alternatively as partial property settlement.
Spousal Maintenance
In her Financial Statement filed on 11 July 2012, the wife estimated that her weekly expenditure to support her current needs is $2,475. It was submitted by Counsel for the wife that, factoring in some deductions for expenses that are no longer relevant or which may be accounted for in another order, an order that the husband pay to the wife spousal maintenance of around $1,500 per week in addition to payment of other expenses would be justifiable on an interim basis.
There is a significant issue between the parties as to the appropriateness of the wife’s expenditure and the quantum of her claims. The matter was debated at some length having regard to the evidence of amounts drawn on a bank account by the wife.
The wife in her re-opened case pointed out that she met her expenses other than by direct payment from that account, including in cash, by credit card and otherwise, and that the figures in the bank account could not be taken as being the whole of her expenditure.
It is not a case where the evidence before the Court is tested by cross-examination.
The husband proposed that the wife’s liabilities be reduced by the application of funds held to the retirement of liabilities on properties owned in the wife’s name. Whilst that may have had that effect it would also have the corresponding effect of diminishing the income capable of being derived on the funds which would be applied to that purpose. It is not the intention of the Court at this stage of the proceedings to alter the parties’ property interests any more than is necessary to meet the interests of justice and it does not agree that the discharge of that mortgage liability which is being met is something which the interests of justice presently require, given the lack of knowledge on the total picture and the fact that the matter has been listed for hearing.
The Court takes the view that prima facie on the evidence the wife has needs which she would have difficulty satisfying from her own resources.
The Court may come to a different view once the evidence is tested; however for the time being, and given that this matter is now fixed for hearing before the Court on 1 July 2013, the Court takes the view that the wife’s needs are likely to be satisfied in the interim from the amount made available to her as a lump sum and referred to above. The Court therefore proposes to dismiss her application for periodic maintenance.
Child Support Departure
Pursuant to the orders made by Rees J on 3 August 2012, the oldest child J lives with the father and spends time with the mother in accordance with arrangements made between them from time-to-time.
The two youngest children, D and G, live with the mother and spend time with the father at other times.
In relation to the wife’s weekly expenditure to support the needs of the children, the wife in her Financial Statement filed on 11 July 2012 estimated that this amount was $3,760. It was submitted by Counsel for the wife that this could be reduced to $846 per week per child living with the wife, provided that the husband be ordered to continue paying other expenses for the children, such as school fees, medical and dental expenses.
It was submitted by Counsel for the husband that the amount claimed by the wife for child support was excessive.
The Court has come to the conclusion that, on an interim basis and having regard to the wife’s own means as a result of the interim order made; her own resources otherwise; the needs of the children; the offer of the husband to meet certain payments on behalf of the children and the fact that the matter will be fully ventilated on a final hearing in July 2013; it is appropriate to make an order for departure in the sum referred to in the orders.
Other Matters
The husband seeks an injunctive order that the wife both personally and by her attorneys be restrained from transferring, assigning, granting a charge or mortgage over, further encumbering or otherwise dealing with her right and title to the properties held in her name. The husband also seeks an order that the wife consent to the husband placing caveats over these properties.
With respect to the injunctive orders, it was conceded by Counsel for the wife that the wife would be happy to provide 28 days’ notice of any intention to take such a step, but that there was otherwise no justification for the granting of an injunction on the husband’s terms. Similarly, Counsel for the wife submitted that there was no justification for an order that the wife consent to the husband lodging caveats to protect his interests in those properties.
The Court proposes to make orders restraining the wife from dealing with the properties in her name without giving the husband prior notice of her intention to do so and permitting the husband to protect his rights under the order by the lodgement of caveats.
The husband also seeks orders that the wife take steps to discharge the mortgage over Property C and to pay her share of all repayments for the loans secured over Property O and Property D. With respect to the latter two properties, Counsel for the wife submitted that the wife has not committed any default in these repayments of which she is aware and that it is unnecessary for her to be the subject of a mandatory injunction.
The Court does not propose to make the orders that the husband seeks in relation to the discharge of the mortgage and the repayment of the other loans, as it is not the intention of the Court to alter the parties’ property interests any more than is necessary to meet the interests of justice.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on
16 November 2012.
Associate:
Date: 16 November 2012
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Jurisdiction
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Procedural Fairness
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Injunction
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