PALMER & SAWYER
[2011] FMCAfam 501
•3 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PALMER & SAWYER | [2011] FMCAfam 501 |
| FAMILY LAW – Children – interim orders – best interests of the child – parental responsibility – equal shared parental responsibility – substantial and significant time. FAMILY LAW – Spousal Maintenance – interim orders – child under the age of 18 years. FAMILY LAW – Property – interim orders – claim for a lump sum to meet anticipated legal expenses. |
| Family Law Act 1975, ss.60CA, 60CC, 61C, 61DA, 65DAA, 72, 74, 75 |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 In the Marriage of Poletti (1991-1992) 15 Fam LR 794 Slattery & Slattery (1976) FLC 90-110 Strahan & Strahan [2009] FamCAFC 166; (2009) 42 Fam LR 203 Zschokke & Zschokke [1996] FamCA 79; (1996) 20 Fam LR 766; FLC 92-693 |
| Applicant: | MS PALMER |
| Respondent: | MR SAWYER |
| File Number: | SYC 4865 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 October 2010 |
| Date of Last Submission: | 12 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Nash |
| Solicitors for the Applicant: | Paul Wells & Co |
| Counsel for the Respondent: | Mr Richards |
| Solicitors for the Respondent: | Broun Abrahams Burreket |
ORDERS
BY CONSENT AND UNTIL FURTHER ORDER
The Applicant wife and the Respondent husband are to have equal shared parental responsibility for the child of the marriage [X] born [in] 2008.
The child [X] is to live with the wife.
UNTIL FURTHER ORDER:
Each party is to have the sole responsibility for making decisions about the day to day aspects of the care, welfare and development of the child during such times as the child is in that party’s care as provided by these Orders.
The child [X] is to spend time with the husband as follows:
(a)Each alternate weekend from 12 noon on Saturday until 12 noon on Sunday;
(b)From 4:00 pm on Wednesday until 12 noon on Thursday in each week;
(c)On four occasions each year for a period of five (5) days and five (5) nights to commence at times to be agreed between the parties commencing after [date omitted] 2011;
(d)From 10:00 am to 6:00 pm on Father’s Day in each year;
(e)From 10:00 am to 3:00 pm on the husband’s birthday if that day should fall on a day when the child would not otherwise be spending time with the husband;
(f)From 10:00 am to 3:00 pm on the child’s birthday [date omitted] in each year if that day should fall on a day when the child would not otherwise be spending time with the husband;
(g)From 4:00 pm on Christmas Eve until 4:00 pm on Christmas Day in 2011 and each odd-numbered year thereafter;
(h)From 4:00 pm on Christmas Day until 4:00 pm on Boxing Day in 2012 and each even-numbered year thereafter; and
(i)At such other times as the parties shall agree.
The wife is to disclose to the husband the address where she resides with the child within seven (7) days of the date of this Order.
Each party is to advise the other of any illness or injury sustained by the child requiring medical or hospital treatment as soon as is reasonably practicable.
The parties are to register the child [X] to attend the [S] Childcare Centre [address omitted] for one day per week.
The husband is to pay the fees for the child at attend the [S] Childcare Centre.
The parties are to enrol the child to attend pre-school at the [G] School at [omitted] for the commencement of the school term in 2012 for two days per week.
The husband is to be responsible for the fees for the child to attend the above pre-school.
The wife is to surrender to the Registrar of the Federal Magistrates Court of Australia all passports relating to the child [X] within seven (7) days of the date of this Order.
The husband as director of [C] Pty Limited is to permit the wife or cause her to be permitted to occupy the residential unit at the property [N] without payment of rent or occupation fee to the exclusion of the husband.
The husband is to pay or cause to be paid in respect of the property at [N]:
(a)All mortgage repayments;
(b)Council and water rates with the exception of excess water charges;
(c)All necessary insurance premiums;
(d)The cost of all reasonable maintenance and repairs.
If the wife commences to occupy the said property she is to pay in respect of her occupation any excess water charges, telephone, electricity and gas accounts relating to the property.
By way of interim spousal maintenance, the husband is to:
(a)Pay to the wife the sum of five hundred dollars ($500.00) per week;
(b)Provide the wife with the use of a motor car of her choice being a VW Golf or the equivalent; and
(c)Pay all fees necessary for the registration, third party insurance and comprehensive insurance for the said motor car.
By way of interim property settlement the husband is to pay to the wife the sum of sixty thousand dollars ($60,000.00) within one month of the date of these Orders.
AND IT IS FURTHER ORDERED THAT
A single expert forensic accountant be appointed to undertake a valuation of the husband’s and the wife’s interests in:
(a)[L] Pty Limited and related entities;
(b)[C] Pty Limited;
(c)[J] Pty limited;
(d)The [first names omitted] Superannuation Fund;
(e)[1] Trust; and
(f)[2] Trust.
Within seven (7) days of the date of this Order the husband provide the names of three (3) experts together with the curriculum vitae of each.
That within a further seven (7) days the wife nominate one of the three (3) experts to undertake the valuation.
In the event that the wife fails to nominate an expert within the time provided by these Orders the husband will nominate on the three experts whose names have been provided.
The husband is to meet the costs of the nominated single expert forensic accountant up to the sum of Forty Thousand Dollars ($40,000.00).
The parties are to attend a Conciliation Conference with a Registrar of the Court.
IT IS NOTED that publication of this judgment under the pseudonym Palmer & Sawyer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4865 of 2010
| MS PALMER |
Applicant
And
| MR SAWYER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the wife for interim parenting orders relating to the parties’ son [X], who was born [in] 2008. She also seeks orders for spousal maintenance in the sum of $2,500.00 per week and for a payment of a lump sum on account of legal costs.
The husband opposes those orders. He seeks orders restraining the parties from removing the child from Australia, for the child to live with him on alternate weekends and overnight each Wednesday, that the wife be permitted to occupy a residential unit in [N], and that a single forensic accountant be appointed to undertake a valuation of the parties’ interests in several companies.
Background
The husband is 40 years old. He was born [in] 1971.
The wife is 37 years old. She was born in Mexico [in] 1974.
The parties commenced to live together in 2003 and married [in] 2006.
The wife commenced to work for the husband’s company, [J] Pty Ltd in May 2006.
There is one child of the marriage, [X], who was born [in] 2008.
The parties separated in 2009 but resumed cohabitation later that year.
In October 2009 they purchased a property at [N], New South Wales.
The parties separated on 30th March 2010 when the wife left the matrimonial home, taking [X] with her. She spent some time in a refuge and then rented a home unit for $600.00 per week. She took a BMW motor car with her but returned to the husband in April 2010, after he asked her to return it.
The husband commenced paying the sum of $500.00 to the wife.
The husband paid the following amounts to the wife:
a)$5,000.00 on 22nd April 2010;
b)$8,977.00 on 5th May 2010;
c)$10,000.00 on 5th July 2010;
d)$5,111.00 on 27th July 2010;
e)Between 5th August and 24th September 2010 the husband paid a total of $8,890.90 to the wife.[1]
[1] Figure taken from Applicant’s Case Document handed up in court on 12th October 2010.
The wife filed an Application for interim and final parenting orders and financial orders on 3rd August 2010. In that Application she sought interim parenting orders in respect of the child [X], born [in] 2008, interim spousal maintenance, an advance of $30,000.00 to be held in a controlled moneys account to be applied to her legal costs, certain interim property orders relating to motor vehicles and personal possessions and occupation of a property at [N], New South Wales.
The husband filed a Response on 10th August 2010, seeking an interim order restraining the parties from taking the child out of Australia.
The parties attended a Child Dispute Conference with a Family Consultant on 30th September 2010. The Family Consultant reported that they had reached some interim agreements about their child:
a)That he would live with the wife and spend time with the husband from 4:00 pm each Wednesday until noon Thursday, and from noon on Saturday until noon on Sunday;
b)That the wife would deliver the child at the commencement of the husband’s time with him and the husband would return him to the mother at the conclusion of each visit;
c)The wife was not opposed to providing the husband with her address;
d)The wife was not opposed to surrendering the child’s passport to the Court;
e)The husband wants the child to attend preschool or childcare one day each week and the wife was not opposed to that course, once she had ensured that her accommodation was not going to change; and
f)The wife agreed in principle to the child attending the [G] School.
The Family Consultant noted the following issues remaining in dispute:
·Where and how changeovers should occur
·On a final basis, whether the child should remain on the Airport Watch List and where his passport is to be kept
·On an interim basis, how and when the child’s time with his father should increase
·On a final basis, the amount of time the child should spend with each parent.
The parties were ordered to attend a Conciliation Conference with a Registrar on 1st December 2010. The date of that conference was vacated on 12th October 2010.
The husband filed an Amended Response on 20th September 2010 in which he sought interim parenting and property orders.
The Application was listed for interim hearing on 12th October 2010.
Areas of Agreement
The parties agree that they will have equal shared parental responsibility for [X]. They also agree that [X] should live with the wife and spend time with the husband.
The husband agrees that he will make available for collection by the wife most of the items of personal property which she seeks, with the exception of the washing machine and dryer and the piano.
Matters in issue
The husband opposes the wife’s application for spousal maintenance. He offers her the ability to occupy the property at [N] and the use of a BMW X5 motor vehicle.
He seeks parenting orders that would provide him with more time with [X] than the wife proposes.
Orders Sought
In her Case Document, filed in court on the day of the hearing, the wife seeks the following Interim Orders:
a)That the child live with her and spend time with the husband:
i)Each week from 2:00 pm on Wednesday until 10:00 am on Thursday; and
ii)
From 4:00 pm each Saturday until 12 noon on
Sunday in each week.
b)That the husband is not to consume drugs or alcohol when the child is in his care or for 12 hours beforehand;
c)That the husband pay to her the sum of $2,500.00 per week by way of spousal maintenance;
d)That the husband pay to her the sum of $30,000.00 on account of legal costs; and
e)That he provide copies of all statements, receipts and other documents evidencing deposit of the wife’s salary from July 2008 to 2010.
The husband seeks interim parenting orders as follows (summarised):
a)That the parties are restrained from removing the child from Australia and that his name be placed on the Airport Watch List;
b)That within seven days the wife surrender the child’s passport to the Court;
c)That the parties have equal shared parental responsibility for the child;
d)That the child live with the father:
i)Each alternate weekend from 12 noon Saturday until 12 noon Sunday;
ii)Each week from 4:00 pm on Wednesday until 12 noon on Thursday;
iii)On four occasions of five days and five nights;
iv)On Father’s Day;
v)On the husband’s birthday;
vi)On the child’s birthday;
vii)Alternating Christmases; and
viii)Other times as agreed.
e)The husband also proposes that his time with the child should be suspended:
i)On the wife’s birthday;
ii)On the child’s birthday; and
iii)On Mother’s Day.
f)The wife is to advise the husband of her residential address;
g)The parties to keep each other informed about addresses and telephone numbers;
h)The parties should advise each other about any medical emergency or injury suffered by the child;
i)The parties should re-register the child to attend the [S] Childcare Centre in [C];
j)The parties should enrol the child to attend the [G] School pre-school to attend pre-school two days a week from the commencement of the 2012 school term.
As to the property at [N], the husband seeks orders that:
a)He permit the wife to occupy those premises;
b)He is to pay or cause to be paid mortgage payments, council and water rates, insurance premiums and reasonable maintenance and repairs; and
c)The wife pay excess water charges, telephone charges, electricity and gas.
The husband also seeks procedural orders going to the property matters, being the appointment of a single expert forensic accountant to value the parties’ interests in various companies.
Submissions
Counsel for the wife, Ms Nash, told the Court that there had been some agreement between the parties on some of the parenting issues. The wife agreed to the husband’s request that the child should spend a block of five nights with him on four occasions each year, but she said that it should not start until the child turns three years old.
The wife has nominated a childcare centre at [P], being the [omitted] Centre, [address omitted]. The husband has agreed to pay for it.
Mr Richards of counsel, who appeared for the husband, told the Court that there was still some dispute about some of the parenting orders sought. However, the husband would pay for the child to attend the [S] Childcare Centre. There was agreement that the child would be enrolled at the [G] School to attend pre-school and husband would pay the enrolment costs.
Mr Richards also said that the father sought that the child would spend time with him from 4:00 pm on Christmas Eve until 4:00 pm on Christmas Day in 2011, which is not the way it had appeared in the Minute of Orders sought by the husband handed up on the day of the hearing.
Ms Nash submitted that the wife was totally dependant on the husband for her income. She has no other source of income. Prior to the parties’ separation the wife received wages and had access to the husband’s credit cards. In 2009 she had received from the husband’s company the sum of $92,712.00.
Since separation on 30th March 2010, the husband has paid to the wife amounts averaging $1,300.00 to $2,500.00. The husband had deposed in his affidavit that between 28th March and 15th September 2010 he had given to the wife the sum of $34,557.00 plus child support of $3,702.00.
On 27th July the husband said he had caused to be paid to the wife net wages of $5,111.00 and on the same day he had made a payment on the wife’s behalf of $25,000.00 to the parties’ superannuation trust, which he controls.
As at 8th October 2010 the wife had $3,775.00.
Ms Nash said that the wife has a half interest in the parties’ jointly-owned property [Property A], [N] which is controlled by the husband and, he says, tenanted. The wife owns a house in Mexico which is unoccupied and has been on the market since 2009, without any offers.
Ms Nash further submitted that her client had brought the application because of her anxiety in being left without support in circumstances where the husband had repeatedly threatened not to give her any money, he has cut off her credit cards and reported to the police that the car that had he had allowed her to use had been stolen. He had threatened to report her for trespassing if she were to enter the former matrimonial home.
It was submitted that in the circumstances it was not appropriate to require the wife to exhaust her remaining capital before making an order for spousal maintenance. Whilst the husband’s Amended Response had offered the sum of $300.00 per week as a partial property settlement, this was inadequate to meet the wife’s need where her rent alone amounted to $600.00 per week.
The husband has control of the matrimonial property including jointly owned property. Thus, it is submitted, he has the capacity to meet the maintenance order sought.
In addition, Ms Nash submitted that the following factors under s.75(2) of the Family Law Act 1975 were relevant:
a)The wife’s only primary income is that which she receives from the husband;
b)She has the primary care of the child of the marriage, who was born [in] 2008;
c)Her necessary commitments are rent, counselling and living costs;
d)She requires a reasonable standard of living;
e)She wishes to continue her primary role as a mother;
f)She contributed her wages during the marriage;
g)the parties were together for seven years; and
h)the husband has control of all the assets and has benefits from the [L] group.
As to interim property orders, the husband has sought a final order in his Amended Response that he would pay to the wife the sum of $250,000.00 by way of lump sum property settlement. The wife seeks the payment of $100,000.00 to enable her to conduct her case properly (in the Applicant’s case document she seeks the sum of only $30,000.00 on account of legal costs).
The wife relies on the decisions of Strahan & Strahan[2], In the Marriage of Poletti[3], and Zschokke & Zschokke[4].
[2] [2009] FamCAFC 166; (2009) 42 Fam LR 203;
[3] (1991-1992) 15 Fam LR 794
[4] [1996] FamCA 79; (1996) 20 Fam LR 766; FLC 92-693
Mr Richards of counsel, for the husband, submitted that the wife’s lump sum property claim was “a movable feast”, meaning that the amount sought kept changing. The husband’s financial statement was unchallenged. The wife was seeking an amount of capital. The case is not complex and the husband would fund the costs of the single expert, at least in the first instance.
If the husband was not going to have to pay the costs of the proposed single expert, a Mr P, whose fees were estimated at $40,000.00, then her claim for a lump sum should be revised down from $100,000.00 to $60,000.00. As to the balance sought on account of costs, the wife’s solicitor, Mr Wells, had not provided a costs agreement as evidence.
The applicant’s case was lacking, he submitted, and what flowed from that was that the Court should be conservative, at least in the first instance.
As to spousal maintenance, Mr Richards submitted that a partial property settlement was the appropriate order, rather than an order for spousal maintenance.
The wife has not set out her reasonable expenses, as witness her financial statement – Part N has been left blank.
The wife claims to have only about $4000.00 left to her, whereas she should have about $15,000.00.
The husband conceded that the wife’s reasonable needs amounted to $300.00.
Further, there was no evidence to support the wife’s assertion that living in [P] was cheaper than in [N]. The husband agreed that he could not force the wife to live in the [N] property, but the Court could well decide that the wife’s position was unreasonable. She had originally said that she wanted to live in [N]. The husband agreed that the wife could have exclusive occupation of the [N] property until further order.
The husband conceded that a partial property order was appropriate.
As to maintenance, the wife did not have an obligation to support [X] beyond her own needs. The Court was not being asked to make an order for departure from administrative assessment of child support.
In short, he submitted that the claim for spousal maintenance failed because:
a)The wife could not show what her reasonable expenses are; and
b)The wife cannot show that the husband can meet the amount claimed from his income, rather than his capital.
As to the parenting orders sought, it was submitted that the parties had agreed to an order for equal shared parental responsibility. The
Court should therefore consider equal time with each parent or, failing that, substantial and significant time.
The father was not seeking alternate weeks with the child, only block periods of five nights four times a year. They are nothing more than holidays.
The husband also agreed that the child should go to child-care one day a week. If the wife lives at [N], then the child should go back to the old child care centre, [S] Childcare Centre.
The Relevant Law
Section 60CA of the Family Law Act 1975 provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration. To determine what is in a child’s best interests, the Court must consider the matters set out in subsections 60CC(2) (the primary considerations) and subsection 60CC(3) (which the Act describes as “additional considerations”).
The Court is required by subsection 60CC(4) of the Act to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. Further, where the parties have separated, as they have in this case, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (see s.60CC(4A)).
I have considered all of those matters.
It is provided by subsection 61C(1) of the Act that each of the parents of a child who is not 18 has parental responsibility for the child.
When making a parenting order, the Court is required by subsection 61DA(1) of the Act to apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them (see Goode & Goode[5]).
[5] [2006] FamCA 1346; (2006) 26 Fam LR 422; FLC 93-286
The presumption does not apply in cases of abuse or family violence (subsection 61DA(2)) and it may be rebutted by evidence that satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility (see s.61DA(4)).
Subsection 61DA(3) provides that when the court is making an interim order, as is the case here, the presumption applies unless the Court considers that it would not be appropriate in the circumstances.
Where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) to consider the reasonable practicability of the child’s spending equal time with each parent and whether it would be in the child’s interests to do so.
If the Court does not make an order for the child to spend equal time with each parent, the Court is required by s.65DAA(2) of the Act to consider:
a)whether spending substantial and significant time with each of his or her parents would be in the child’s best interests; and
b)whether it would be reasonably practicable.
The term “substantial and significant time” is defined by s.65DAA(3) to include weekends and holidays, days that do not fall on weekends and holidays, and occasions and events of particular significance to the child or special significance to the parent. The Court may have regard to other matters in determining whether the time spent is substantial and significant (s.65DAA(4)).
In determining what is “reasonably practicable” , the Court is required by s.65DAA(5) to consider a number of matters that include how far apart the parents live from each other and their capacity to communicate with each other.
I have also considered those matters.
The wife seeks an order for spousal maintenance. Section 72 of the Act essentially provides that a party to a marriage is liable to maintain the other party if and only if the other party is unable to support himself or herself adequately whether:
a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
c)for any other adequate reason.
A party applying for spousal maintenance must show that he or she is unable to support himself or herself adequately for one of the reasons set out in s.72 (see Slattery & Slattery[6]).
[6] (1976) FLC 90-110
The Court may make such order as it considers proper for the provision of maintenance (see s.74(1)). In exercising its jurisdiction under s.74, the Court must take into account only the matters referred to in s.75(2) of the Act.
The husband claims that the appropriate order is not an order for spousal maintenance but a partial property order. Section 79 of the Act permits the Court to make such orders in property settlement proceedings as it considers appropriate. Section 80 sets out the general powers of the Court in property settlement proceedings, including making orders until further order.
I have considered those matters.
Conclusions
The parties have agreed that they will have equal shared parental responsibility for the child [X]. They have also agreed that [X] will live with his mother. I propose to make consent orders to that effect.
They agree in principle that the child will spend time with the husband, but they do not agree as to how much time that will be. The father is not seeking an order that the child spend equal time with him and with the wife and I would not be satisfied that such an arrangement would be in the child’s best interests, even if it were reasonably practicable, considering the level of conflict between the parties and the young age of the child.
The husband seeks substantial and significant time with the child, certainly more than the mother offers. The best interests of the child are the paramount consideration in making this determination.
There is a benefit to the child in having a meaningful relationship with both of his parents. His mother has been the child’s primary caregiver but there is a need for him to spend time with his father so that he may develop a string attachment with him. The child is still young, at two years of age, but has spent time with his father overnight, on one or two nights a week.[7]
[7] Affidavit of Ms Palmer 30.7.2010 at paragraph [14]
The wife has deposed:
I believe that [X] would benefit from a regular routine in his visits to his father.[8]
[8] Ibid at [15]
The Court must consider the need to protect the child from physical or psychological harm from abuse, neglect or family violence. The wife has complained of the husband’s abuse of alcohol and his use of cocaine during the time the parties were together. She claims that he was “physically, emotionally and verbally abusive during the marriage”.[9]
[9] Ibid at [8]
The wife obtained an Apprehended Violence Order from the [omitted] Local Court on 19th January 2009, which remained in force for twelve months. The husband consented to that order without admissions.
As the child has regularly spent time with his father overnight since the parties separated, it would seem to be appropriate that he continue to do so. In order to take steps to protect the child from harm, I propose to make an injunctive order that the husband refrain from the use of alcohol or illicit drugs when the child is in his care or beforehand.
The child [X] is only young, not yet three, so it is not appropriate to obtain his views. On the affidavit evidence, he appears to have a positive relationship with both of his parents.
The parents have a willingness and ability to facilitate and encourage a close and continuing relationship with the child. The husband wishes to spend more time with the child. The wife’s opposition comes from her concerns about his young age and the need to build up his time with his father gradually.
A significant change to arrangements for the child would be likely to cause him some anxiety or distress, so increased time with his father needs to be introduced incrementally.
There is no evidence to suggest that the child’s parents do not have the capacity to provide for [X]’s needs, including his emotional and intellectual needs. The husband is particularly keen for him to attend childcare and preschool on a regular basis.
[X] is a little boy aged two years and eight months. He was born [in] 2008, so he will be three in September. His background is that his father is Australian and his mother is from a Mexican background.
There are allegations of family violence whilst the parties were together. There has been a family violence order, but there is no current order.
These are interim orders but it will be some time before the application can be heard on a final basis. It is therefore appropriate to consider making orders to cover occasions of particular or special significance, such as birthdays, Father’s Day, Mother’s Day and Christmas.
One issue appears to be the husband’s wish for the child to spend a block of five days with him for a holiday. The wife agrees, but says that this should commence once the child turns three. This appears to be an appropriate order.
The husband seeks an order that the wife disclose her residential address and I note that the wife had no objection to that. I propose to make an order to that effect.
The husband seeks orders that the child should attend the [S] Childcare Centre for one day a week and that he should be enrolled to attend pre-school at the [G] School in 2012 for two days a week. There was some agreement between the parties about these issues.
The husband appears to be in a better position to afford the fees for the Childcare Centre and the pre-school and I propose to order that he should be responsible for those fees.
The husband seeks orders that he should make available to the wife for her occupation the property at [N], which she originally sought in her Application. He concedes that he cannot make her live in the premises. It appears that it would be beneficial if the wife were able to live in those premises with the child, and I will order accordingly.
The wife seeks an order for spousal maintenance. She has the parties’ child, [X], in her care. He is under the age of 18 years. Counsel for the father has submitted that the financial information is inadequate, in that she has not separated from the total expenses in Part N those that apply to the child and those that apply to her. It was submitted that she has only made out a case of for some $300.00 per week. The wife, it is submitted, was also unable to show that the husband had the capacity to meet the amounts sought from his income.
I am not of the view that the wife has shown a case for interim spousal maintenance in the sum of $2,600.00 per week. If she were to receive a partial property settlement, a figure of $500.00 would be more appropriate, provided that wife had the use of a motor car.
The husband has submitted that this is a case where a partial property settlement is appropriate, and he has offered a sum of $250,000.00 on a final basis.
The husband has offered a partial property settlement in the sum of $300.00 per week. This appears to be spousal maintenance under another name, and I am not satisfied that a partial property settlement in this manner is appropriate.
The wife claims to need funds for her legal costs of these proceedings, which she believes could well be complex, bearing in mind the husband’s company structure. She has not provided any details of these costs, but seeks the sum of $100,000.00.
One concern of the wife’s was the estimated fee of $40,000.00 that would be required for the services of Mr P as a single expert. The husband offered through his counsel to meet the costs of the forensic accountant in the first instance, which would bring the wife’s claim down to $60,000.00.
I am of the view that a partial property settlement is appropriate, which would have the effect of putting the wife in funds so as to meet ongoing legal costs. The amount of $60,000.00 appears to be appropriate.
The husband also offered to provide the wife with the use of a motor vehicle. In Annexure “F” to the wife’s affidavit there appears a copy of an email dated 26 April 2010 in which the husband says:
With respect to the car, it is relatively expensive when compared with other options but it was the car we have been discussing so I am happy to provide you with the car of your choice, fully-maintained & insured etc despite our current separated status.[10]
[10] Affidavit of Ms Palmer 30.7.2010 Annexure “F”
The wife deposed that she and the husband had agreed on a VW Golf, but he retained that car in his possession. She states:
Currently I am driving the BMW motor vehicle mentioned earlier which is a large 4 wheel drive vehicle which ahs a high fuel consumption. I chose the Golf as a small car which is easier to drive and park, more economical and suitable for my needs. I would prefer to drive a vehicle which is registered under my control.[11]
[11] Ibid at paragraph [51]
In my view, the husband should provide the wife with the use of a small car of that nature as part of an order for spousal maintenance. He should pay the registration and insurance.
If the husband chooses to buy a motor car of that nature for the wife, that purchase could be regarded as a partial property settlement.
The parties have not attended a conciliation conference before a Registrar. They should do so and an order will be made accordingly. If the financial matters do not settle at or as a result of the conciliation conference, the Court will consider the steps to be taken for the future progress of the matter, including whether it should remain in this Court or be transferred to the Family Court of Australia.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 3 June 2011
0