Murray and Murray (No 2)

[2015] FamCA 641

FAMILY COURT OF AUSTRALIA

MURRAY & MURRAY (NO 2) [2015] FamCA 641

FAMILY LAW – PROPERTY – Enforcement

Family Law Act 1975 (Cth)

APPLICANT: Ms Murray

RESPONDENT: Mr Murray

FILE NUMBER: SYC 5665 of 2014

DATE DELIVERED: 3 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 3 August 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: McLachlan Thorpe Partners

Orders

1. H Holding Pty Ltd, Q Pty Ltd and the partners trading as H Assurance pay and the husband otherwise provide all necessary authorities and directions to H Holding Pty Ltd, Q Pty Ltd and the partners trading as H Assurance to pay all monies to which the husband or I Pty Ltd are entitled to receive in the following order of priority:

   1.1.To the husband in the sum of $2,365 per month (the protected earnings rate);

   1.2.Payment to the wife of a monthly amount of $24,229;

   1.3.Payment to the Child Support Agency for the benefit of the wife:

   1.3.1.The sum of $8,536 per month (in satisfaction of order 4 made 25 March 2015);

   1.3.2.The sum of $3,360 per month (in satisfaction of order 8.1 made 25 March 2015)

   1.4.The balance then remaining to the wife in satisfaction of the debt outstanding of $91,997 less any amount paid to the Child Support Agency by or on behalf of the husband since 13 July 2015 to the date of this order.

2. I note that there may be an outstanding issue as to whether or not some payments that the husband has made directly as set out in paragraph 3 filed 29 July 2015 (an amount of $5,300) were payments paid by the husband in relation to orders made 25 March 2015. I reserve any outstanding issue in relation to any possible controversy to the final hearing.

3. In relation to the amount received by the wife, pursuant to order 1.2, in the sum of $24,229 each month from H Holding Pty Ltd, Q Pty Ltd or the partners trading as H Assurance, the wife is to open a new account in the wife’s name with a financial institution into which she would seek those monies to be paid (“the new account”) and if H Holding Pty Ltd, Q Pty Ltd or the partners trading as H Assurance are not prepared to pay monies directly into the new account they are otherwise ordered to pay them to the wife and the wife is to deposit those monies into the new account.

4. Once the money is deposited into the new account the wife is to only draw from the new account for the following purposes:

   4.1.Making regular monthly mortgage payments in accordance with order 3 made 25 March 2015 in the sum of $20,000 per month comprising of $15,000 minimum monthly payment and $5,000 contribution to arrears;

   4.2.Paying expenses referred to in order 6 made 25 March 2015;

   4.3.Paying expenses described in order 7 made 25 March 2015;

   4.4.Paying expenses described in order 8.3 made 25 March 2015;

   4.5.Paying expenses described in order 8.4 made 25 March 2015.

5. On a monthly basis that wife is to provide a written document to the husband indicating what payments she has made from the new account and provide him with copies of supporting documentation in relation to invoices and other documents relevant to those payments.

6. This matter be listed for mention at 9.15am on 7 October 2015. Should either party seek to make any further application such application should be also listed on 7 October.

7. Within 7 days the husband provide the wife with a written document detailing what current direct debits are paid relevant to the payments to be made from the new account to facilitate the wife being able to take those payments over.

8. The husband is to immediately provide to the wife any communication that he receives from the bank from time to time in relation to the mortgage on the Suburb C property.

9. I note that the parties still have not progressed the issue which is standing in the way of me setting this matter down for a final hearing in relation to property settlement and that is, agreeing on a single expert to value the husband’s interest in H Accounting. It is my intention on 7 September to deal with this issue.

10. Within 7 days the husband will provide with wife with a list of agreed valuers to value H Accounting and within a further 7 days the wife should select one of those valuers, unless she has an objection to all three, and inform the husband of the selection or objection in writing within a further 7 days. In the event that she has an objection to all three valuers, the husband is to file and serve an affidavit setting out their qualifications and if the wife is propose some alternate valuer, she is to file and serve an affidavit setting out the qualifications of the alternate valuer and I will make some determination about this issue on 7 September.

11. I note that the Suburb C property may need to be valued closer to the hearing and the wife believes the property currently has an approximate value of $2.5 million and the husband thinks it might be a little less than that.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Murray & Murray (No 2) 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 5665 of 2014

Ms Murray

Applicant

And

Mr Murray

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am satisfied having read the husband’s affidavit of 16 July 2015 and the wife’s affidavit of 29 July 2015 and having heard both parties today, that there is a need to make an enforcement order which would ensure, as far as is possible, that the husband complies with the orders that I made on 25 March 2015. To date he has not fully complied with that order and there is about $90,000 arrears in respect of that order (including the non-payment of the lump sum amount).

2. The wife in my view rightly submits that orders should be made that ensure, as far as possible, that the order of 25 March is complied with.

3. The husband is entitled to be protected in relation to any enforcement order so that he receives the protected earnings rate. The protected earnings rate is defined in the Rules to mean the actual threshold income amount that would apply to a payout under Part VI Division 4B of the Bankruptcy Act 1966 if the payer were a bankrupt. Section 139K of the Bankruptcy Act1966 sets out that the base income threshold amount is 3.5 x the amount that is specified in column 3, item 2, Table B, point 1064-B1, Pension Rate Calculator A in The Social Security Act 1991. So far as I am able to ascertain, that table indicates that the relevant fortnightly figure is $312.10 and once that amount is multiplied by 3.5, divided by 2 and multiplied by 4.33 the monthly figure is $2,365.

4. Counsel for the husband announced at the beginning of the hearing today that any enforcement of orders 1, 4 and 8.1 made 25 March 2015 may place in jeopardy the husband’s ability to comply with other orders made 25 March 2015, including payment of the mortgage on the Suburb C property; payment of rates and taxes on that property; payment of the wife’s motor vehicle registration and insurance; payment of health cover for the wife and children and payment of other health expenses of the children and payment of education expenses in respect of the children. In those circumstances it is reasonable for the wife to ask the court to make an enforcement order, which so far as possible, ensures that the eventuality foreshadowed by counsel for the husband at the commencement of this morning is avoided. The wife made an application that, apart from the husband receiving a protected earnings rate, the balance of funds payable to him as a result of his involvement in H Accounting as a partner and director be paid firstly towards his ongoing periodic and non-periodic obligations and if there is anything left over, be paid towards the arrears that have currently arisen under the non-compliance by the husband of the orders of 25 March 2015. In my view it is reasonable, given the history of this matter and given by counsel for the husband said at the commencement of this morning in relation to the risks involved, to make an order as sought by the wife.  

I certify that the preceding four (4) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 3 August 2015

Associate:

Date:  3.8.2015