Pint and Harper

[2010] FamCA 139

FAMILY COURT OF AUSTRALIA

PINT & HARPER [2010] FamCA 139

FAMILY LAW – PROPERTY – Interim

Family Law Act 1975 (Cth)

APPLICANT: Ms Pint

RESPONDENT: Mr Harper

FILE NUMBER: MLC 8349 of 2009

DATE DELIVERED: 26 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 24 FEBRUARY 2010

REPRESENTATION

THE APPLICANT: IN PERSON

THE RESPONDENT: IN PERSON

Orders

1. That until further order, the husband be restrained from selling, disposing of or encumbering:

   (a)     his motor car; and

   (b)    his model soldier collection.

2. That within 14 days of this date, the husband provide to the wife the following:

   (a)payslips for W Company, N Company or P Company for the last 18 months;

   (b)Westpac Bank loan statements for Account … for the last 12 months;

   (c)Westpac account statements for the husband’s Westpac transaction account for the last 12 months;

   (d)Westpac credit card statements for the last 18 months;

   (e)Bank West Telenet Saver Account number … for the last 18 months;

   (f)Bank West transaction account … for the last 18 months

   (g)NAB car loan statements for the last 18 months;

   (h)NAB transaction account statements for the last 18 months

   (i)any recent statement showing amounts outstanding to the Infringements Court Plan Number …; and

   (j)Superannuation statements for Health Super, Australian Super, Scandia and Military Super.

3. That the wife’s application filed 17 February 2010 is otherwise dismissed.

4. That each party have liberty to apply to seek orders in the Judicial Duty List or the Registrar’s Duty List subsequent to the conciliation conference.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8349  of 2009

MS PINT

Applicant

And

MR HARPER

Respondent

REASONS FOR JUDGMENT

1. On 24 February 2010 in the Judicial Duty List, I made the orders which are set out at the commencement of these reasons for judgment.  Because of the state of the list at that stage, I indicated I would give reasons later.  These are those reasons.

2. On 20 January 2010, Barry J made orders in a contested hearing between the parties.  The husband was represented by counsel and the wife appeared in person.  In essence, those orders dealt with both interim parenting and children’s orders.

3. Barry J gave reasons for the orders that he made and I have read them.

4. On 17 February 2010, the wife filed an application in a case seeking eleven orders.  A registrar abridged time and placed the matter in the Judicial Duty List.

5. I shall not set out all of the orders sought by the wife but the critical issue related to the enforcement of an order made by Barry J.

6. Barry J ordered as follows:

   2.All monies held by the husband in cash in the safe deposit box at the Commonwealth Bank, [M Branch], be paid within 48 hours in reduction of the loan from the Westpac Bank secured by mortgage over the subject property.

   3.If the said cash is not deposited within 48 hours, the matter is to be relisted at 10.00am on 27 January 2010 in the Family Court of Australia at Melbourne.

   …

   5.That the wife is to pay $175 per week to Westpac Bank in reduction of the mortgage debt over the subject property.

   6.That the husband is to continue to make all other outstanding payments on the mortgage to the Westpac Bank in relation to the subject property.

7. The subject property of the orders of Barry J was the home at C.

8. It was common ground between the parties that although the order of Barry J does not specify an amount held by the husband, his Honour’s reasons refer to a payment of $40,000.  It was also common ground that the $40,000 figure came from a question by his Honour to counsel for the husband as to the cash amount in the husband’s possession.  In other words, counsel for the husband on instructions, said there was $40,000 in his possession and his Honour made the orders that he did.

9. It transpired that there was not $40,000 in the hands of the husband if I accept his evidence.  When I asked how that figure came about, he confirmed that he told a lie to his counsel in response to a question by his Honour and counsel dutifully responded.  Whilst the husband indicated that he was embarrassed by the question at the time, it does him no credit.  However, the position is worse because the husband pursuant to the order of Barry J, paid $16,100 into the mortgage account.

10. I permitted the wife the opportunity to cross-examine the husband who filed an affidavit by leave on 24 February.

11. The wife asked the husband what happened to $60,000 because it transpires that that was the amount that was initially in dispute between the parties culminating in the $40,000 that the husband told his Honour was left.  The husband told me that he had spent $12,000 in legal fees, $8000 in personal expenses and bills and the $16,100 went into a safety deposit box.  When asked what happened to the balance, the husband said that he “didn’t realise” that he had spent it on other things.  That answer was stretching my incredulity because when I asked what those other things were, he said that in December and January he had gone out and spent it at the casino.

12. The wife pursued the cross-examination of the husband with some vigour.  She inquired about his income, his expenses, his rental property, his vehicle and a model collection that he has.

13. The wife has no evidence which would contradict that of the husband.  In an interlocutory hearing, that is not surprising.  However, the answers that the husband gave were on oath and may be subject to scrutiny at a later time.  Because of his evidence, I could not find that the husband has the capacity to pay the sums pursued by the wife.

14. The wife’s position was that if I accepted that the husband did not have the money to pay into the account pursuant to the order of Barry J, then I should have his wages “garnished” every fortnight to the extent of $1000.

15. In respect of the garnishee order sought by the wife, I am satisfied on the evidence that at this stage, the husband would not have the capacity to pay $1000 per fortnight.  That is because in response to a question I asked, he confirmed that his income was $903.71 per week and his expenses $811.12.  The wife correctly pointed out that the expenses include items that may be subject to challenge but for the purposes of this application, I could not find on the evidence that the husband has a capacity to pay.

16. The husband’s evidence was that he went to the casino and drew the sums down from his bank and that occurred a couple of times a week to the extent of $700 to $800 per week.  No doubt his bank statements which I propose to also order be provided will support or refute his assertion.

17. The husband’s evidence also was that he has an old vehicle which is worth very little.  That vehicle would certainly not satisfy the orders of Barry J despite it having some heritage value.  The wife queries why the husband had recently turned up to a contact visit in a recent model vehicle and his response was that his car had broken down and he could not afford to get it fixed from a mechanic as a result of which he “borrowed” the vehicle of his “flatmate”.  He confirmed that his flatmate was still living with him.

18. However, the husband also said that whilst his earlier financial statement as filed showed that he was paying $100 per week rent, as of 22 February, he had taken up a place of his own at significantly higher rental because of his need to have a property which he could house the daughter of the parties during contact.

19. The husband also conceded that he is paying payments on his credit card but those matters are all subject to discovery.

20. In relation to his lawyers, he still owes $11,000 over and above the $12,000 to which I have earlier referred that he had paid. 

21. It is quite clear in the circumstances that on the evidence I have heard, the husband is not in a position to make the payments.  However, when I queried whether the husband would concede that he had wasted money having regard to his evidence about the casino, he said he would not be heard to argue to the contrary.

22. As such, I propose not to grant the applications relating to the enforcement to which I have referred.

23. The wife’s evidence also was that the husband’s car be signed over for sale to be used to pay a debt due to her parents which is an amount that apparently went towards the acquisition of the home.  It is not entirely clear to me but it would appear that the husband initially disputed that the money was owed to the parents.  However, he tendered an affidavit in which he annexed a document drawn by his previous solicitors indicating that the wife’s parents were to be repaid a debt.  That conflict will need to be resolved in the future.  The purpose of this application was to have the husband repay some of that debt from the sale proceeds of his car.  The wife conceded from the bar table that her parents were not going to throw her out of the home and enforce the debt at this stage despite the fact that they might be charging interest.  The wife made the statement that she is expecting a child within the next few weeks and she was visibly pregnant at the bar table.  In conclude that it was inconceivable that her parents would take action at this stage against her.

24. The wife then suggested that the husband should be subjected to an order for random supervised drug testing because obviously he could not account for all of his money and it may be possible that he was spending that on drugs.  That is not a foundation for making an order because none of the evidence would be relevant to the financial issues before me.  It may become relevant to the parenting issue but that is for another day.  Accordingly I indicated to the wife that I would not be making that order.

25. The husband also was asked by the wife to return a car seat and a queen size mattress.  Such is the pettiness of the dispute between the parties that an application of this nature had to be made.  It was not appropriate for that matter to be dealt with in the Duty List and when the husband was asked about it his response was that the wife had a car seat anyway.

26. There also arose between the parties two issues of a parenting nature.  One related to the communication between the parties because there is currently an intervention order.  It is clear that the parties need to work those matters out as soon as possible but I indicated I would not be making orders having regard to the nature of the evidence between them.  The second was a variation of the orders between the husband and the child of their relationship but the wife indicated that she was not proposing to pursue that.

27. The next stage of the proceedings between the parties is a conciliation conference in March.  I have indicated to the parties that they are not to issue further applications providing the existing orders are complied with bearing in mind that I do not propose to discharge the order of Barry J.  Rather, I am proposing not to enforce it.  That matter can be taken up at a later stage if necessary.  I have however given both parties liberty to apply for various orders both as to financial matters and parenting issues but not until after the conciliation conference is completed.  I am concerned in this case that the finances are modest and the parties need to resolve the issue quickly.  I have placed these reasons on the file and on public record not only for the parties’ sake but also for the registrar conducting the conciliation conference.

I certify that the preceding Twenty Seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  1 March 2010