Mayer and Killen

[2011] FamCA 992

FAMILY COURT OF AUSTRALIA

MAYER & KILLEN [2011] FamCA 992

FAMILY LAW – PROPERTY

APPLICANT: Mr Mayer

RESPONDENT: Mr Killen

FILE NUMBER: SYC 4955 of 2011

DATE DELIVERED: 20 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 29 November 2011
14 December 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Campbell
Legal Solutions Pty Ltd

SOLICITOR FOR THE RESPONDENT: Ms Swifte
Swifte Law

Orders

1. That the husband forthwith pay to ING Bank the sum of $3,000, with such payment to be made no later than 4:00pm on 21 December 2011.

2. The husband is restrained from disposing of the sum of approximately $3,000 held in his St George Bank account, pending compliance with order 1.

3. That the husband pay to the ING Bank the sum of $634 on the 21^st day of each month, pending the sale of the former matrimonial home situate at B Street, C Town in the State of New South Wales.

4. That the wife pay to the ING Bank the sum of $634 on the 21^st day of each month, pending the sale of the former matrimonial home situate at B Street, C Town in the State of New South Wales.

IT IS NOTED that publication of this judgment under the pseudonym Mayer & Killen 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: SYC 4955 of 2011

Ms Mayer

Applicant

And

Mr Killen

Respondent

REASONS FOR JUDGMENT

the proceedings

1. By an Application in a Case filed on 24 November 2001 the wife, Ms Mayer, sought orders for spouse maintenance of $300 per week; that the husband pay $1,034 per fortnight on account of the mortgage on the former matrimonial home and accrued arrears of $14,141.  At the hearing of the interim application on 15 December 2011 she sought orders that each party pay $634 per month on account of the mortgage and that the husband meet the arrears by way of four monthly instalments of $3,535 in each of January, February, March and April 2012.

2. In a Response to an Application in a Case filed on 7 December 2011 the husband, Mr Killen, sought orders that each party pay half of the monthly mortgage instalments.  He made no proposal to discharge the arrears and claimed that he is unable to afford to do so.  By the time of the interim hearing on 15 December 2011, the husband’s position was that he could afford to make no contribution whatsoever to the mortgage instalments or arrears.  The husband’s solicitor informed me that his position was that the mortgagee should exercise its writ of execution.

3. It was common ground that the former matrimonial home, B Street, C Town has been on the market for many months and that it will probably be difficult to achieve a sale of the property.  The mortgagee, ING Bank, has embarked upon repossession proceedings and issued a statement of claim. 

4. I was informed by the solicitor for the wife that the mortgagee has agreed to accept a 50 per cent reduction in mortgage repayments pending the sale of the property.  The solicitor for the husband informed me that she had spoken to the legal representative of the mortgagee, who denied that there was any such agreement.  There was no evidence or even a letter from the mortgagee or its solicitor. 

5. Essentially, the question is whether the husband has the financial capacity to pay $634 per month and/or $3,535 for four months.  In her affidavit sworn on 28 November 2011 the wife referred to aspects of the husband’s financial position in 2009.  This information does not assist me to make findings as to his current capacity to meet the orders sought by her.  Similarly, bank statements bearing dates 5 November 2010 and earlier provide very little assistance at all for present purposes.

6. The husband and two others operate a business via the D Trust, the trustee of which is a company known as D Pty Ltd.  Each of the three participants in the business is a director and the holder of one ordinary share in D Pty Ltd.

7. The husband is the sole director and shareholder of a company known as E Pty Ltd, which is trustee for the Mr Killen Family Trust.  The current beneficiaries of the trust are the husband and the three children of the parties.  The wife ceased to be a beneficiary upon the dissolution of the parties’ marriage.  The other two participants in the business have similar arrangements with family trusts.

8. The husband receives a gross salary of $1,500 per week and his net pay is $1,140.  Various taxation documents which were annexed to his affidavit of 6 December 2011 confirm that his taxable income for the year ended 30 June 2011 was $78,000.  His personal tax return for the year ended 30 June 2011 showed that he received no distribution from the family trust in that year.  The profit and loss statement for the Mr Killen Family Trust for the year ended 30 June 2011 showed that no distribution was made to the children of the parties in that year. 

9. In his affidavit the husband deposed that he lives with his parents and pays “rent and board $250 per week”.  He did not spell out precisely what expenses are covered by this payment.

10. The husband provided a breakdown of his weekly expenses in his Financial Statement sworn on 27 November 2011.  It seems to me that some of these expenses are excessive or unnecessary particularly the following:

    ·          Entertainment/hobbies       $90

    ·          Holidays  $40

    ·          Gifts  $80

    Total:  $210

11. As at 27 November 2011 the husband had bank savings of approximately $8,000.  On 30 November 2011 he transferred $5,000 into his solicitor’s trust account, leaving a balance of approximately $3,000. 

12. $634 per month equates to approximately $146 per week.  In my view, the husband could find the funds necessary to comply with the orders sought by the wife that he pay $634 per month on account of mortgage instalments by reducing the excessive or unnecessary expenditure to which I have referred.

13. I can identify no source from which the husband could pay $3,535 per month on account of mortgage arrears.  He can, however, immediately pay $3,000 to the mortgagee on account of arrears and I will order that he do so.  What future action may be taken by the mortgagee is a matter for its management and legal advisors to determine. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 20 December 2011.

Associate:     

Date:              20 December 2011