Pratt and Pratt

[2011] FamCA 606

FAMILY COURT OF AUSTRALIA

PRATT & PRATT [2011] FamCA 606

FAMILY LAW - MAINTENANCE- Husband to pay –Existence of a de facto relationship

APPLICANT: Ms Pratt

RESPONDENT: Mr Pratt

FILE NUMBER: BRC 3945 of 2009

DATE DELIVERED: 2 August 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 1 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan of Counsel appearing for the Applicant Wife

SOLICITORS FOR THE APPLICANT: Kennedy Spanner Lawyers

COUNSEL FOR THE RESPONDENT: Mr Burridge of Counsel appearing for the Respondent Husband

SOLICITORS FOR THE RESPONDENT: AM Legal

Orders

IT IS ORDERED THAT:

1. The Husband’s Application in Form 2 filed 29 April 2011 be dismissed.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Husband do pay as and by way of maintenance for the Wife an amount of $1,500 per week, the first of such payments to be made from the 2 August 2011 and thereafter monthly in the amount of $6,500 with such amount to be paid into the Wife’s bank account number … at the … branch of the B Bank.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC3945/2009

Ms Pratt

Applicant

And

Mr Pratt

Respondent

REASONS FOR JUDGMENT

1.On the 30 May 2011 the Husband filed an amended application in this Court at which he sought at paragraph 4:

1.          That paragraph 4 of the orders made by the Family Court on 22 November 2010 be stayed until further order or until determination of the property proceedings under s 79 of the Family Law Act.

2.          That paragraph 5 be amended to provide that the Husband’s payment to the Wife of $2,000 per month cease after the payment of 1 October 2011.

3.          That the Wife pay the Husband’s costs of and incidental to this application.

2.Very briefly, as I have had such little time in which to prepare, the Husband in his affidavit, and I say in passing that there are two affidavits which are almost identical, one being filed 29 April 2011 and the other being filed 9 May 2011.  Referring to both of them the affidavit filed on 29 April 2011 appears to have more documents exhibited to it than the one of the 9 May 2011.

3.It appears that one of the basic complaints of the Applicant in support of his application is that the Wife, see paragraph 5 of the affidavits, has removed certain items from the property known as “C Property” and he indicates that as a result he was going to lessen the payments required by the consent order to which I will now refer of the 12 November 2010.  That order required him to make certain payments inter alia:

3.          That the Husband pay to the wife’s solicitors trust account the sum of $65,000 within two business days of being advised by the Wife’s solicitors that she has vacated the property [C Property];

4.          That the Husband pay to the Wife a further $35,000 on or before 1 May 2011.

5.          That the Husband pay to the Wife the sum of $2,000 per month by direct deposit into an account nominated by the Wife on the 1st of each month.

4.As I have said he indicates that as a result of what he believes to be the Wife’s wrongful removal of property from C Property, notwithstanding that she had vacated, that he was not indebted to her in the sum of $65,000, but at some lesser sum.  The endeavour of the Husband to set off what he estimates to be worth is not a proper way or endeavouring to vary the order as made by consent in November 2011.

5.As a direct result thereof the Wife forwarded a Third Party Debt Notice pursuant to Part 20.4 of the Family Law Rules and the respective financial institution complied with the payment of the $65,000.

6.Thereafter the Husband failed to comply with the payment of $35,000, see order 4 of the aforesaid order of the 22 November 2010, and such amount was once again recovered by way of a Third Party Debt Notice.

7.

The Husband has also failed each month, since the order of

22 November 2010, to comply with the maintenance order and as a result thereof, I understand a further Third Party Debt Notice was issued and that amount has been recovered.

8.

The Wife to the contrary seeks an order that the application of the Husband be dismissed and that in lieu thereof an order be made whereby the amount of maintenance agreed to by the consent order of

22 November 2010 be increased from $2,000 per month to $2,000 per week as per her amended response filed the 18 July 2011.

9.From the Husband’s material two main things arise as I envisage:

1.Is whether or not the Wife is living with a Mr D in a de facto relationship, and if so, whether or:

a.she is entitled to $2,000 per month according to the consent order of 22 November 2010 or;

b.that she should not be entitled to $2,000 per month until either:

i.it is ascertained whether they are living in a

de facto relationship; and

ii.her partner can adequately support the Wife.

10.

The Father in his identical affidavits save for the annexures of the

29 April 2011 and 9 May 2011, see paragraph 20, he says that on her own evidence she has been in a relationship with her partner, Mr D, since at least August 2010 and has travelled overseas together and that it appears to him that they are living in a de facto relationship.

11.As at the date of the consent order in November 2010 the Husband has indicated that he must have been of the opinion that there were in a de facto relationship since August 2010, consequently I cannot see how he can put forward an argument that she is not entitled to the consent order amount ie. $2,000 per month because she and Mr D were living in a de facto relationship.

12.The next matter of course is to determine whether in fact they are living in a de facto relationship.  I refer with approval to the decision of Justice Murphy in Jonah v White [2011] FamCA 221 where at paragraph 42 thereto he sets out at length what he believes are the necessary factors to be proved before a de facto relationship can be determined.

13.May I refer to paragraph 43 of the aforesaid judgment in which he sets out s 32DA of the Acts Interpretation Act 1954 (Qld) (as amended). Subsection 2 which says as follows:

2.In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances:

(a)The nature and extent of their common residence;

(b)The length of their relationship;

(c)Whether or not a sexual relationship exists or existed;

(d)The degree of financial dependence or interdependence, and any arrangement for financial support;

(e)Their ownership, use and acquisition of property;

(f)The degree of mutual commitment to a shared life, including the care and support of each other;

(g)The care and support of children;

(h)The performance of household tasks;

(i)The reputation and public aspects of their relationship;

See also s 4AA of the Family Law Act 1975.

14.In particular I refer to subsection 4:

4.Two persons are no to be regarding as living together as a couple on a genuine domestic basis only because they have a common residence…

15.This was put forward by Burridge of Counsel.  On the evidence before me I can find as follows:

·The Wife and her partner are living in a common residence.

·There relationship has been since either late 2009 or early 2010.

·It has been a sexual relationship.

·That there is some financial dependantship; and

·The performance of household tasks.

16.I may take each of these seriatim and I have referred to the length of their relationship.  So far as to the nature and extent of their common residence is concerned the Wife was called to give evidence and was crossed examined and she indicates that she is living in Mr D’s residence outside E Town, he being a vet, because of the necessity of her to find some place to reside, she having absented herself from C Property in accordance with the order of 22 November 2010.  She says that she has no or insufficient means with which to access alternate accommodation and pay for such.  She sets out the costs of rental in E Town.  She has no income now having lost her job.  She hopes to move to Brisbane to care for her daughter Emily who was severely injured and is recovering from spinal injuries. 

17.She hopes as I have said to move to Brisbane where the rent she says will increase to perhaps $600 or $700 per week.  She sets out in her affidavit the fixed living expenses which she alleges she incurs per week.  I am satisfied that the reason why she is residing with Mr D is as she has suggested.  She has no where else to live.  She says she pays for all of the food in relation to herself and Mr D, where he pays all the other outgoings ie. utilities, mortgage instalments etc.  It is a sexual relationship which commenced in early 2010.

18.There appears to be some financial dependence on Mr D by the Wife because of the fact that she has no income other than the amounts to which the Husband failed to comply with the order of 22 November 2010, and she needs to put a roof over her head.  There is, as I said, some financial dependence because Mr D has advanced moneys to her to enable her to enjoy herself overseas.  She has had three trips in the last twelve months.  She has also advanced money to him to enable his parents, who are F nationality, to enjoy themselves at G Resort the which amounts to some $3,500, which was to be repaid by Mr D and has been.

19.

There does not appear to me to be much evidence, if at all, of a mutual commitment to a shared life.  There is no evidence to support any of the other subparagraphs referred to in subsection 2 referred to above.  Consequently I am more satisfied that on that evidence there is no

de facto relationship.  I accept her evidence.

20.Consequently I have to look and see whether there is any reason why the Husband should not be compelled to comply with the consent order.  He says that he has insufficient funds.

21.I refer to exhibits 1A and 1B.  Those two exhibits which are bank statements respectively from the H Bank and I Bank indicate that in the last several months the Husband has had nothing less than over $60,000 as and by way of credit.  I point out that the H Bank account  on or about the 28 June 2011 the balance dropped to a figure of $301 because of very large payments out.  Other than that it appears generally the aforesaid account on the 26 July 2011 was in credit in the sum of $51,556.49.  The figures go as I have said from a low of $301 on this bank statement to a high of $234,000 on or about the 31 May 2011.  That is only on that account.

22.In the other account which is the I Bank account, this varies from some $30,000 on 5 April 2011 to $5,000 on 9 June 2011.

23.On those figures alone, the Husband has more than sufficient funds available to him to adequately meet the payment of $2,000 per month.

24.Since I am satisfied there is no de facto relationship and I am satisfied that he has sufficient funds, I can see no reason why he should not comply with that. 

25.However, there is a further application made by the Wife as I refer to hereinbefore for an increase.  She sets out in her affidavit the minimum amount that she seeks is something slightly in excess of $1,400 and says that she is unable to adequately maintain herself from her own efforts.

26.She has been expending the moneys to which I have already referred, that is the $65,000, $35,000 plus about $10,000 being arrears of maintenance.

27.She was employed part time for two days a week.  She has lost that position but I am satisfied that she has the ability to make some payments towards to her own maintenance which I would expect to be able to pay something towards her own maintenance.

28.Since I am satisfied that she has shown a need and I am further satisfied that the Husband has capacity to make such payments.  It appears to me to be unanswerable that on the material put before me, notwithstanding the fact that he says he goes up and down quite an amount he is in receipt of sufficient funds to adequately pay the amount of $1,500 per week which I order.

29.The final order for me to consider is the application made by the Husband that the order in relation to the payments of money be stayed.  The way the application is drawn is, as I see it, for a stay of the order, but the order has already been completed in that notwithstanding the Husband failed to comply with the order and it that necessitated the Wife having to file a Third Party Debt Notice under the relevant rules.

30.Mr Burridge of Counsel indicates that I should stop the payment out of moneys which are retained in the solicitor for the Wife’s trust account.  It does not matter where the money is.  The order has been complied with in that the moneys have been paid to the Wife, notwithstanding the fact that it is in her solicitor’s trust account, it is her money and she can claim it at any time when she directs her solicitors to pay it to her.  I do not consider that the application in the form of which it is drawn is correct.  I am not here to advise the Husband as to the type of application that could be made but there are obviously other ways in which an order could be sought interfering with the Wife’s right to exercise and enjoy the fruits of her judgment.

31.I will dismiss all the applications of the Husband and make an order that the Husband do pay as and by way of maintenance for the Wife an amount of $1,500 per week, the first of such payments to be made from the 2 August 2011 and thereafter monthly in the amount of $6,500 with such amount to be paid into the account nominated by the Wife in her application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 2 August 2011.

Associate: 

Date:  2 August 2011