Miller and Miller

[2009] FamCA 1293

FAMILY COURT OF AUSTRALIA

MILLER & MILLER [2009] FamCA 1293

FAMILY LAW – CHILD SUPPORT – Procedural

Family Law Act 1975 (Cth)

APPLICANT: Ms Miller

RESPONDENT: Mr Miller

FILE NUMBER: ADC 5264 of 2007

DATE DELIVERED: 29 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 29 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Howe Martin & Associates

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: David Burrell & Co

Orders

1. That the Application in a Case filed by the wife on 9 October 2009 and the Response filed by the husband on 27 October 2009 be adjourned to 12:00pm on 23 November 2009.

2. That both parties have leave to file and serve any further affidavit material they seek to rely on for the purpose of the hearing, such affidavit material to be filed and served by 4:00pm on 18 November 2009.

3. That the question of both parties costs be reserved to the adjourned hearing.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5264 of 2007

MS MILLER

Applicant

And

MR MILLER

Respondent

EX TEMPORE REASONS

1. This is a matter where a level of support has been paid by the husband to the wife for some time pursuant to an agreement that was reached between the parties, and the parties have not seen the need to transpose that agreement into an order of this court.  In September the husband, through his solicitors, advised the wife, through her solicitors, that his position had changed in terms of his income and his business, and he advised that he would be reducing the level of support that he had been paying.

2. I am told that, very roughly, the overall difference between the previous level of support and the level of support proposed by the husband is about $600 a week. 

3. Unfortunately the fact of the proposed change was not conveyed to the client, the wife, until some time later and in the meantime, as I said earlier, problems and difficulties developed; namely, services were cut off and the wife had no idea what was happening.  That led to unfortunate exchanges between the wife and the husband, and also involving the husband's mother, and obviously the animosity between the parties escalated. I would hope that that has abated somewhat, but it does not seem to be the case.

4. That is the background to these proceedings being filed, and they were filed on 9 October 2009 by the wife, seeking in effect an order that the previous level of support be resumed and indeed backdated to when the husband unilaterally changed the level of support in the first week of October 2009. 

5. The situation with the matter is that it needs to be adjourned to 23 November 2009, which is a date I can offer for a hearing to determine on an interim basis what ongoing level of support there should be from the husband. 

6. I am told that the husband will be presenting evidence which indicates that he is not able to maintain the level of support that he had previously been able to and, as I have said in discussion between bar and bench, the onus fairly and squarely lies on the husband to establish that.  The wife at this stage is not accepting of that position and that is why there is a dispute about the matter obviously and it will fall to me to make a decision.

7. The issue now is what should happen in the meantime between now and 23 November 2009.  Mr Berman seeks an order that the previous level of support be resumed.  Mr Richards says that the level of support the husband is now providing is adequate for the wife's needs and should remain at least until 23 November 2009. 

8. One real difficulty I have is that the order sought in the application is not particular enough for me to make the sort of order without more that the wife in fact seeks, because there are several components of the level of support the husband had been supplying. Part of it can be described as spousal maintenance, and part of it can be described as child support, but that is a practical difficulty which can be overcome by Mr Berman providing me with a precise minute of the order that his client seeks and allocating various amounts to various categories.

9. What I am dealing with now is the generality of what should happen with that between now and November and I have indicated a preliminary view about that. I have heard submissions. I understand the husband's position, but nothing has changed from my preliminary view which is the husband should not have gone about it in the way that he did. The onus is on him to satisfy this Court ultimately that he cannot afford to continue the previous level of support. The information that he has currently supplied does not allow me to make a fully informed decision as to that and therefore, as far as I am concerned, he should reinstate the previous level of support.

10. Upon hearing that Mr Richards has indicated that his client will resume the previous level of support between now and 23 November 2009 and I need not make an order about that. I note though that that will happen.

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 29 October 2009.

Associate