Rand and Rand

[2009] FamCA 119

FAMILY COURT OF AUSTRALIA

RAND & RAND [2009] FamCA 119

FAMILY LAW – PROPERTY – Child maintenance

Family Law Act 1975 (Cth)

APPLICANT: Ms Rand

RESPONDENT: Mr Rand

FILE NUMBER: MLC 1669 of 2008

DATE DELIVERED: 16 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Croxford

SOLICITOR FOR THE APPLICANT: Voitin Walker Davis

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. That the wife’s application pursuant to s 66L of the Family Law Act 1975 (Cth) (“the Act”) be adjourned to 15 February 2010.

2. That pursuant to s 66L of the Act, the husband pay to the wife the sum of $460 per month by way of maintenance for the child … born … July 1990, the first payment to be made on 7 March 2009 and monthly thereafter and the last payment to be made on 7 November 2009 and in the event that the payment is not made by the husband by the 8^th day of each of the months referred to, the payment is to be deducted from the funds held in the interest bearing account referred to in a paragraph 4(2) hereof.

3. That from the net proceeds of the sale of Unit 1, B Street referred to in paragraph 7(d) of the orders made on 7 March 2008, the sum of $100,000 be deposited into an interest bearing account in the names of the parties under the control of Voitin Walker Davis to meet any warranty claims in respect of Units 1, 2 and 3, B Street in respect of P Pty Ltd and the husband and wife, for a period of five years from this date until 19 February 2014 and that all warranty claims be paid from the said account.  That upon the conclusion of the warranty period on 19 February 2009, the balance (if any) in the said account be divided as to 55 per cent to the wife and 45 per cent to the husband.

4. From the husband’s share of the proceeds of the sale of Unit 1, B Street, referred to in paragraph 7(d) of the said orders, the following be paid:

   (a)pursuant to s 66L of the Act, the sum of $3680 be paid to the wife for the maintenance of the child for the period from … July 2008 until … February 2009;

   (b)the sum of $16,140 to be held in an interest bearing account in the names of the parties under the control of Voitin Walker Davis to meet any future claims for adult maintenance pursuant to s 66L of the Act that may arise out of the proceedings adjourned to 15 February 2010 and if no such order is made, the balance of that account (if any) be refunded to the husband.

   (c)the sum of $5000 to the wife; and

   (d)the wife’s costs in the sum of $1500 arising out of these proceedings.

5. That the reasons for judgment this day be transcribed and be placed upon the court file.

6. That it is certified that it was appropriate for the applicant to be represented by a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1669 of 2008

MS RAND

Applicant

And

MR RAND

Respondent

REASONS FOR JUDGMENT

1. This is an application that has come into the duty list.  Mr Croxford appears on behalf of the applicant wife.  Mr Rand, the respondent, has been called and there has been no appearance. 

2. In addition to the husband not appearing, there have been no documents filed by him or on his behalf.  Mr Croxford also indicates that there has been no response to his emails to the husband. 

3. There is an affidavit by a process server filed on 11 February 2009 indicating that the husband was served personally on 3 February at 6.20 pm at B Street.  According to the affidavit, the process server asked the husband for his identification and the husband confirmed who he was. The husband acknowledged receipt of the documents by signing the acknowledgment of service form. 

4. Before turning to the formal application, I need to deal with one or two historical matters.  On 7 March 2008 Young J made final orders between the parties in relation to property proceedings.  At that stage the husband was represented by counsel.  I conclude from the fact that the orders were made that his Honour was satisfied that the orders were just and equitable.  Paragraphs 4 and 5 of the orders provide for the parties, but specifically the husband, to do whatever was necessary to complete works at unit 1, B Street. 

5. Specifically, the husband was responsible for the management of the completion of the works.  That is an issue that is now somewhat contentious.  As a result of the completion of the works, the property was to be sold and after payment of various liabilities the proceeds were to be divided 55 per cent to the wife and 45 per cent to the husband.  The orders also provided for the parties to have rights of occupancy and holding their respective interests on trust.

6. The second background issue is that the parties have a child, who was born in July 1990.  The child is therefore 18½ years of age.  There is an application before me in relation to the child, notwithstanding that from the perspective of the law he is now an adult. 

7. The application in a case was filed on 28 February 2009.  Although it seeks interim orders, I am dealing with the matter on a final basis because of the fact that the husband has been served personally and has chosen not to attend.  The application itself seeks seven orders, but they can be grouped into four particular areas. 

8. The first of those issues relates to a claim by the wife for the sum of $5220, but it is now conceded by Mr Croxford that that sum should be $4248, relating to what was described as arrears of child support up until July 2008, when the child turned 18 years of age. The Child Support Agency, according to Mr Croxford, has indicated that they will not collect any money, because the parties had a child support agreement and it was never registered.  From a jurisdictional point of view, I do not think there is much that I can do about that. 

9. The second issue relates to the ongoing cost of providing support for the child, who is currently undertaking year 12 in his schooling. The application seeks the sum of $460 per calendar month, backdated to July 2008. The material in support of the application for maintenance under s 66L is the wife's affidavit and a financial statement. In the financial statement the wife sets out that it costs her $419 per week for the support of the child. That is leaving aside any questions of putting a roof over his head and also various education expenses.

10. The education expenses are shown in the document as $45 per week and that is said to include levies and fees.  The other expenses include food and various household supplies, use of the household utilities and telephone.  There are expenses associated with a motor vehicle, which I have concluded means that the wife is actually driving the child around at some significant expenses.  There are also the usual costs of clothing and activities, including entertainment and holidays. 

11. When I look at the expenses of $419 per week, excluding the accommodation costs, and note that the wife is only seeking $460 per calendar month, it must be obvious that it is the wife who is bearing the lion's share of the cost of supporting the child, who cannot be expected at this stage to provide significant support for himself as he endeavours to complete his Year 12 studies. 

12. The affidavit of the wife goes on to say that she anticipates that the child will progress to tertiary education, but that is still a year away and it is very difficult for me to get any real feel for what he will do. On that basis, at the suggestion of Mr Croxford, I propose to adjourn the proceeding in relation to s 66L for a year, at which time the child’s future as a tertiary student will be known. I propose, however, to only order that the child have the right to be supported by his father until the end of November 2009, on the basis that he is an adult, notwithstanding he is currently in Year 12.

13. I certainly would have expected him at the end of his studies to get out into the workforce and support himself.  That is not a comment so much in relation to the support by his father but he also has the obligation to assist his mother.  It is hard for me to see how, when he is doing Year 12, however, that he ought not have the appropriate support of both parents.  What I will do in February next year remains to be seen, depending upon what support the child then needs, having regard to the fact that it will be a totally different way of life for him as he embarks on tertiary education, if that in fact occurs. 

14. Having regard to the statement in the wife's material that the husband has adopted the attitude that he has no obligations to support his adult son, presumably based on the relationship between them, I have concluded that, without a sum of money being held back from the property settlement funds due to the husband, the order would be rendered nugatory. 

15. The same could be said in respect of the period beyond 2009 when the child enters into tertiary education.  Having regard to the husband's statement, as reported by the wife, that if she pursued the matter he would immediately seek government support and move away interstate or overseas, I think it is appropriate that a sum of about $6000 a year for at least two years be set aside from the capital sum due to the husband for the potential for the child to be supported into the future. 

16. The third grouping relates to paragraph 5 of the orders that I mentioned that were made on 7 March 2008.  Those orders required the husband to be responsible for the management of the completion of the works.  The wife's evidence is that the husband has removed various items, which she has had valued, and as a result of removing a basin and a sound system that was to be installed there are, to use the wife's words, many thousands of dollars' worth of building products that the husband has retained.  On that basis, the wife would not be in a position to receive her just entitlements under the order, which was set at 55 per cent. 

17. On that basis and having regard to the estimate that the wife has given, I see no reason why an adjustment should not be made in her favour to ensure she gets what the court intended in the orders made in March 2008.  I propose, under those circumstances, to accede to the wife's proposed adjustment as set out in paragraph 2 of the orders sought, on the basis that I find that it is a breach of paragraphs 5, 6 and 7 of the orders.

18. The final order sought is that the sum of $100,000 be deducted from both parties' entitlements - in other words, off the top of the proceeds of the sale of B Street - for the purposes of being set aside to cover any claims that are not covered by any builder's guarantee.  It transpires that B Street was an owner‑builder property conducted under the name of P Pty Ltd, of which the husband and wife are both directors. 

19. According to the evidence of the wife, the parties, as owner‑builders, will be liable for any future maintenance of units 1, 2 and 3.  She expresses concern that, having regard to the husband's statements about what he intends to do in the future, she would be left holding the bag, so to speak, in relation to any such claims. 

20. The wife seeks the sum of $100,000 be set aside, and it seems appropriate that that be placed in an interest‑bearing account for a period of five years, at the conclusion of which, if there are no claims, then the parties can share in the proceeds according to the order. 

21. I have given consideration to whether this is a variation of the orders, to such an extent that I am being asked to exercise s 79 powers, but it seems to me that it is something that is more designed to protect the parties' respective entitlements, and to that extent it is a machinery provision rather than me tinkering with the orders made in March 2008. 

22. If I am wrong about that, then it would seem that it could be provided for under s 114 of the Act as being designed to protect the property of the parties, having regard to the realistic probability that, if there are claims, whilst both parties would ultimately be liable for them, if the husband does decamp, then it will be the wife who is ultimately responsible. In those circumstances, I think there is sufficient jurisdictional basis to make the orders.

23. I am satisfied, on the evidence set out in the wife's affidavit, that each of the matters to which I have referred are appropriate in the circumstances and I propose to make the orders.  I also propose to have these reasons transcribed and be placed on the court file.  If the husband desires to see a copy of them, he can have a copy by the usual method of seeking to access the court file.  But I propose only, otherwise, at this stage to order that he be served with copies of the order. 

24. There is a further application by the wife for her costs, fixed in the sum of $1500, covering various aspects, including appearances, conferences, service fees and the drawing of the various documents. Section 117 of the Act says that each party shall be responsible for their owns costs unless the court is satisfied that there is a reason that justifies the departure from the rule.

25. In circumstances where the wife has endeavoured to resolve issues such as maintenance of a child in Year 12, and there are other circumstances such as those that I have earlier mentioned, I am satisfied this is an appropriate case to justify departure from the principal rule. 

26. In so departing from the rule, the Act requires me to contemplate the matters set out in s 117(2A). I am satisfied that the parties have sufficient financial resources to support themselves. I am satisfied that the husband has not participated in the proceedings, which might have ultimately concluded in a resolution had some commonsense prevailed. I am satisfied that the wife has been wholly successful and the husband wholly unsuccessful. In those circumstances, it is appropriate to make an order for costs.

27. The schedule to the Family Law Rules requires that the court make orders in relation to the provisions of the amounts set out in the rules.  This is a case where, I suppose, rather than putting the parties to the added expense of trying to negotiate a settlement of costs and organise an assessment in the event of a dispute, that I should fix the amount of costs.  Having regard to all of the matters that I have heard and read and the amount of work that has gone into the case, the sum of $1500 does not seem to me to be unreasonable.  In those circumstances, I order that the husband pay the sum of $1500 costs and those funds be paid from the entitlement of the husband under the provisions of the settlement.

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:  24 February 2009