MURRAY & MURRAY - [2015] FamCA 209

FAMILY COURT OF AUSTRALIA

MURRAY & MURRAY

[2015] FamCA 209

FAMILY LAW – INTERIM PROPERTY – Where the wife seeks the husband pay to her the sum of $50,000 to meet costs of litigation – Where the husband asserts he does not have the current ability to pay – Where the wife has a substantially lower income than the husband – Where the assets are mainly in the husband’s name – Where the husband has not attempted to consolidate his debt to meet the reasonable needs of his children and the wife – Where the husband has continued to spend without constraint – Order that the husband pay the amount sought by the wife by way of interim property settlement.

FAMILY LAW – CHILD SUPPORT – Where the wife seeks the current assessment be varied – Where the wife seeks the husband meet the needs of the children’s private health insurance and associated costs – Where there are grounds for departure – Where the wife has established her needs for the children which were not challenged by the husband – Where the wife has a small income compared to the husband – Order that the wife pay 5 per cent of the cost of supporting each child and the husband pay 95 per cent of that cost.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks payment of weekly spousal maintenance – Where the wife has the primary care of the young children – Where the husband asserts the wife is not properly exercising her earning capacity – Where the threshold test under s 72 of the Act has been met – Where the wife has established a need and that need is found to be a reasonable weekly amount – Where the husband argues he does not have reasonable capacity to meet the wife’s need – Where that argument is rejected – It is found that the husband has the capacity to make payments sought by the wife – Order sought by the wife made.

Child Support Assessment Act 1989 (Cth)

Family Law Act 1975 (Cth)

Bevan and Bevan (1995) FLC 92-600
Gyselman & Gyselman (1992) FLC 92-279
Oates and Crest (2008) FLC 93-365
Redman and Redman (1987) FLC 91-805
Williamson and Williamson (1978) FLC 90-505

APPLICANT:

Ms Murray

RESPONDENT:

Mr Murray

FILE NUMBER:

SYC

5665

2014

DATE DELIVERED:

25 March 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

18 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tockar

SOLICITOR FOR THE APPLICANT:

Pearson Emerson Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

McLachlan Thorpe Partners

Orders

Pending further order:

Within 7 days of the date of these orders, the husband pay to the wife or as she directs in writing, the sum of $50,000 by way of interim property settlement.
The wife have exclusive occupation of the property at B Street, Suburb C (“the Suburb C property”).
The husband pay the monthly mortgage payments on the Suburb…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MURRAY & MURRAY [2015] FamCA 209
Case: [2015] FamCA 209
Decision Date: 25 March 2015

CaseChat Overview and Summary

The case of *Murray & Murray* concerned applications made by the wife for interim property settlement, child support, and spousal maintenance. The husband contended he lacked the present capacity to meet the wife's financial requests. The wife argued that her income was substantially lower than the husband's, that the majority of assets were registered in the husband's name, and that the husband had not acted to consolidate his debts to meet the reasonable needs of the children and herself, continuing instead to spend without constraint. The court was required to determine whether to grant the wife's applications for interim financial relief.

The legal issues before the court were whether to order the husband to pay $50,000 by way of interim property settlement, to vary the child support assessment to meet the children's needs for private health insurance and associated costs, and to order weekly spousal maintenance. In relation to child support, the court considered whether grounds existed for a departure from the standard assessment, given the wife's significantly lower income compared to the husband and the unchallenged needs of the children. For spousal maintenance, the court had to assess if the threshold test under section 72 of the relevant Act was met, whether the wife had established a reasonable need, and if the husband had the capacity to meet that need, despite his assertions to the contrary.

The court reasoned that the husband's continued spending without constraint, coupled with his failure to consolidate debt to meet the reasonable needs of the children and the wife, supported an order for interim property settlement. The court found that the wife had established her needs for the children, which were not challenged by the husband, and that her lower income warranted a departure from the standard child support assessment. Regarding spousal maintenance, the court determined that the wife had met the threshold test under section 72 of the Act, established a reasonable need, and that the husband possessed the capacity to make the requested payments. Consequently, the court ordered the husband to pay $50,000 by way of interim property settlement, to pay 95% of the cost of supporting each child while the wife paid 5%, and to pay weekly spousal maintenance.

Orders

Orders of the court

Pending further order:

Within 7 days of the date of these orders, the husband pay to the wife or as she directs in writing, the sum of $50,000 by way of interim property settlement.

The wife have exclusive occupation of the property at B Street, Suburb C (“the Suburb C property”).

The husband pay the monthly mortgage payments on the Suburb C property and any arrears of regular payments on the mortgage.

The husband pay or cause to be paid to the wife or as she directs in writing, the sum of $1,970 per week by way of spousal maintenance, with the first payment to be made within 7 days from the date of the making of these orders.

The husband may, if he wishes to do so and the wife agrees, ensure that the wife continues to be paid up to $1,000 per month (net of tax) by D Pty Ltd for work performed by her on behalf of the company and while such payments are made, the husband may reduce the spouse maintenance, required by order 4 of these orders, by the net amount paid to the wife by D Pty Ltd.

The husband shall pay:

6.1. All rates and taxes and home and contents insurance in respect of the Suburb C property; and

6.2. Motor vehicle registration and insurance for the European motor vehicle used by the wife.

The husband shall pay the wife’s private health insurance premiums in the fund of which the wife is presently a member or such other fund as the parties agree in writing, at the present scale including cover for private hospital, optical, physiotherapy, counselling and dental expenses.

By way of departure from the child support assessment issued by the Child Support Agency on 8 October 2014 in case number 609 087 612 808 and any subsequent assessments in respect of the children, the husband pay or cause to be paid:

8.1. To the wife or as the wife may from time to time direct in writing, child support for the children in the sum of $1,680 per calendar month per child, the first payment to be made by the 7th day of the month after the date of the making of these orders, and payments to be made by the 7th day of each month thereafter, with the final payment in respect of each of the children to be made upon the happening of a child support terminating event in relation to such child;

8.2. All of the children’s private health insurance premiums in the fund of which the children are presently members or such other fund as the parties agree in writing (“the Fund”) at the present scale including cover for private hospital, optical, physiotherapy, counselling, dental and orthodontic expenses in respect of the children.

8.3. All private hospital, optical, physiotherapy, counselling, dental and orthodontic expenses in respect of the children as are not able to be recovered from the Fund, such reimbursement to be made within 14 days of the date on which the wife provides the husband with receipts or invoices for such expenses;

8.4. All education expenses at the school each child presently attends or such other school or schools as the parties agree upon in writing. Such expenses shall mean and include all tuition fees, private tutoring fees, incidental sporting costs, excursion fees and holiday camp expenses, school books, school uniforms and extra-curricular activities (musical and sporting).

The amount payable by the husband pursuant to order 8.1 is to be varied on the review date each year from the date of the making of these orders to such sum as shall be determined by multiplying the amount being paid immediately prior to the review date by the fraction A/B where “B” is the CPI in respect of the June quarter 12 months prior to the review date and “A” is the CPI in respect of the June quarter ending on the day immediately preceding the review date.

10.

The child support payable by the husband pursuant to order 8 is to be credited against the husband’s liability under any administrative assessment of child support payable by the husband to the wife in respect of the children for the period from the date of the making of these orders until the happening of a child support terminating event in relation to each of the children.

11.

The child support payable by the husband pursuant to order 8 is to count for 100 per cent of the annual rate of child support payable by the husband under any administrative assessment of child support payable by the husband to the wife in respect of the child for the period from the date of the making of these orders until the happening of child support terminating event in relation to each of the children.

12.

By consent, the husband continue to meet all regular payments associated with the Commonwealth Bank relating to the E Pty Ltd investment and the Citibank personal loan as and when they fall due.

13.

The interim orders sought in the husband’s Response filed 23 December 2014 be dismissed.

14.

The hearing of the parties’ application for property settlement be expedited, to be relisted before me by a Registrar after valuations of the husband’s business interests have been completed, the parties have concluded a conciliation conference, or the Registrar otherwise believes the matter should be relisted before me for further directions.

15.

Liberty granted to the wife to relist the matter on 21 days’ notice before me for enforcement of any order not complied with by the husband.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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