Saintclaire and Saintclaire (No 2)

[2011] FamCA 136

FAMILY COURT OF AUSTRALIA

SAINTCLAIRE & SAINTCLAIRE (NO. 2) [2011] FamCA 136

FAMILY LAW - SPOUSAL MAINTENANCE – interim application for lump sum and periodic maintenance
FAMILY LAW - INJUNCTION – interim application - preservation of former matrimonial home – interim costs

Family Law Act 1975 (Cth): ss 72(1)(a), 75(2), 117(2)

APPLICANT: Ms Saintclaire

RESPONDENT: Mr Saintclaire

FILE NUMBER: SYC 7614 of 2010

DATE DELIVERED: 22 February 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 21 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: J Levy

SOLICITOR FOR THE APPLICANT: Pearson Family Lawyers

COUNSEL FOR THE RESPONDENT: A Givney

SOLICITOR FOR THE RESPONDENT: Norwest Family Law

Orders

1. That until further order the husband pay maintenance to the wife as follows:

   (a)The sum of $777.00 per week to the wife or as she may from time to time in writing direct, the first payment to be made on or before 4.00pm 1 March 2011.

   (b)In addition to Order 1(a) the sum of $400.00 per week or such lesser amount for rent to the wife or as she may in writing direct, the first payment to be made on or before 4.00pm seven (7) days after the wife has given the husband written notice of the amount of rent payable by her for premises in D for her and the two children of the marriage to be or which are specified by the wife.

   (c)The sum of $20,000.00 to the wife or as she may in writing direct, payment being made on or before 4.00pm 8 March 2011.

   (d)The husband pay or cause to be paid the amount of income tax payable by the wife over and above taxation instalments previously deducted from her salary for the year ended 30 June 2010 upon him being furnished by the wife with a copy of the Notice of Assessment issued by the Australian Taxation Office.

2. That the husband pay to the wife or as she may in writing direct the sum of $20,000.00 by way of interim costs on or before 4.00pm 8 March 2011.

3. That until further order the husband is restrained from selling transferring mortgaging or further encumbering his interest in the property situate at and known as …, in C (“the former matrimonial home”).

4. That until further order the husband is restrained from molesting abusing harassing or in any other way interfering with the wife.

NOTATIONS:

A.Order 4 is made without admissions.

B.The parties have agreed in relation to provision to the wife of her personal belongings and effects in the former matrimonial home and the property controlled by the husband at W and the division of the furniture and other contents of each of those properties as well as the manner of delivery to or taking possession by the wife of all such items which are to pass to her.

IT IS NOTED that publication of this judgment under the pseudonym Saintclare & Saintclare (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC7614 of 2010

Ms Sinclaire

Applicant

And

Mr Sinclaire

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings by her Initiating Application (Family Law) filed 2 December 2010 the wife sought interim orders providing for non-molestation, interim periodic and lump sum spousal maintenance, injunctive relief and costs.

2. By his Response to Initiating Application (Family Law) filed 9 February 2011 the husband sought an order dismissing the wife’s application for interim orders.

3. At the commencement of the hearing counsel for the husband sought an adjournment of the hearing on the following terms:

   (a) that the husband pay interim spousal maintenance in the sum of $600.00 per week to continue until 4.00 pm on the date of the adjourned hearing, first payment within seven days;

   (b)that the husband be restrained from selling and further encumbering the former matrimonial home at C until 4.00 pm on the date of the adjourned hearing;

   (c)that there be a non-molestation order without admissions;

   (d)that there be an order for interim costs in favour of each of the parties in the same amount.

4. The adjournment application was opposed.

5. After hearing submissions from counsel I dismissed that application.

6. The hearing proceeded on the Papers supplemented by oral evidence of the husband in relation to aspects of his financial circumstances, to which subsequent reference will be made.

Historical background

1. The parties cohabited for a period of approximately 14 years which commenced on 16 July 1996 and continued until their separation on 12 September 2010.  They have lived separately and apart since that time.

2. The parties married on 4 April 2009.

3. There are two children of the marriage, namely L who is four years of age having been born in December 2006 and G who is three years of age having been born in February 2008.

4. The children have lived with the wife in her primary care since the separation of the parties.

5. On 28 September 2009 the parties entered into a financial agreement, a copy being annexure “A” to the Affidavit of the husband sworn 3 February 2011.  It does not purport to exclude the court’s jurisdiction in relation to spousal maintenance.

6. The wife contends on the substantive hearing that the financial agreement is not binding and in the alternative, that it be set aside.  The issues so raised were not before me.

7. On 11 November 2010 the wife and the two children travelled to D for a funeral.

8. The wife and the two children have remained living in the home of the maternal grandmother in D.

9. The husband’s solicitor had given the wife notice to vacate the former matrimonial home.

10. The husband changed the locks to the former matrimonial home.

11. Ironically, the husband now has a pending application seeking an order requiring the wife to return with the two children to live in Sydney.

Issues for determination

1. The most contentious issue for determination is whether or not there should be an order for spousal maintenance as sought by the wife.

2. The wife seeks orders for periodic maintenance in the sum of $817.00 per week together with $600.00 per week for rental assistance.

3. In addition, the wife sought an order for lump sum maintenance in the sum of $50,000.00.

4. During the hearing counsel amended the wife’s application to seek an order for $20,000.00 and separately interim costs of $30,000.00.  I will refer to this later in the Judgment.

5. I have determined to make orders for periodic maintenance in the sum of $777.00 per week and $400.00 per week or lesser amount for rent and for lump sum maintenance in the sum of $20,000.00 due to the following findings of fact with accompanying reasons.

Sections 72(1) and 75(2)

1. The basis set out in s 72(1)(a) is established in conjunction with relevant matters pursuant to s 75(2) being the matters properly referred to by counsel in their submissions.

2. The wife has the care and control of the two children who are aged four and three.

3. The wife’s only sources of income are child support of $450.00 per week and possibly a government family allowance.

4. The wife does not have any significant equity in property or property which may be readily realised.  There is little equity, if any, in the wife’s business partnership.  No income is currently earned from the business as the wife is not an active partner.

5. The financial agreement states that at the time the wife had jewellery and collectibles with values of $180,000.00 and $150,000.00 respectively.  Whether that is a value based on insurance value, resale or auction value is not stated.  Leave was not sought to cross-examine the wife about those matters or indeed any other relevant matter.

6. The wife has a capacity to be employed as a financial planner.  The wife has qualifications for such employment and has a history of employment with a bank on a full-time and later part-time basis.  That employment ceased in November 2009.

7. In July 2010 the wife commenced part-time financial planning work in the business established with two other people.

8. Since 2 January 2011 the wife has unsuccessfully sought employment in the financial services industry in D.  Further qualifications are necessary to gain such employment.  Further steps need to be taken in that regard by the wife or to commence business activities in her partnership in D.

9. Accordingly, I am satisfied that at this stage the wife is unable to exercise her capacity for employment.

10. The wife’s financial commitments are set forth in her Financial Statement sworn 30 November 2010, filed 2 December 2010.  The wife’s financial statement lists a number of expenses on a fixed or periodic basis as well as weekly expenses totalling $827.00 per week.

11. I have accepted the wife’s expenditure which is set forth on a weekly basis being the annexure to her financial statement less a deduction of $50.00 for holidays, being the same amount which the husband claims he incurs, leaving a total of $777.00.

12. Upon further reflection, the estimate for entertainment and hobbies of $100.00 per week is accepted by me, especially by comparison with the husband’s estimate of $200.00 per week for himself, in accordance with his Financial Statement sworn 3 February 2011.

13. The case conducted for the wife appeared to have its primary, if not sole focus upon the list of weekly expenses to which I have referred as providing a foundation for the periodic order sought by the wife in the sum of $817.00 per week.

14. With regard to rent, the wife lives with the two children in the maternal grandmother’s home in D.  It is clear that a two to three bedroom premises are required.  The evidence annexed to the wife’s affidavit in relation to enquiries that she has made demonstrates a range of $420.00 to $500.00 per week for a four or five bedroom house.  In the circumstances, and doing the best I can, I have utilised the last-mentioned range as a platform for a two or three bedroom house selecting an amount of $400.00 per week, or lesser amount as may be notified by the wife to the husband.

15. I have taken into account the lifestyle of the parties which demonstrates a very comfortable and high quality former matrimonial home.  This includes a range of investment assets the parties have gained either jointly or individually, other aspects of their lifestyle including levels of income earned and overseas travel.

16. So far as lump sum maintenance is concerned, it was submitted on behalf of the wife that the amount sought of $30,000.00 was necessary to enable the wife to meet the liability set forth in her financial statement.  Those liabilities include estimated income tax of $5,000.00.

17. The evidence as properly conceded by counsel for the wife is that no income tax assessment has as yet issued.  When this matter was raised with counsel for the husband in the circumstances where it is contended by the wife that there was an underpayment of income tax whilst in the employ of B Pty Limited being a company controlled by the husband, I was informed by his counsel that the husband would pay or cause to be paid any assessed amount of income tax payable by the wife upon being furnished with the appropriate notice of assessment provided to the wife by the Australian Taxation Office.

18. The next matter is credit cards of $28,000.00.  Whilst no evidence is given as to how that amount has been incurred or for what particular purposes, on the other hand there is no evidence of the wife having conducted herself in a reckless financial manner in the past.  Accordingly, I will give weight to that credit card liability without being able to be more precise as to the level of it which relates to the wife as opposed to the two children.

19. With respect to personal loan liabilities claimed of $18,000.00, no evidence is given by the wife as to the circumstances in which such a loan was incurred, the purpose of it, nor the manner in which it has been utilised and the circumstances in which it is repayable or indeed whether any demand has been made for payment.  Consequently, little weight can be attached to that particular liability.

20. In addition, it is clear from the evidence and not disputed that in the event of the wife being able to secure rental accommodation, the probabilities are that she will have to provide bond and some advance payment.  Accordingly, taking those matters into account and excluding the wife’s estimate of potential income tax payable by her for the last financial year, the need that the wife will have to pay as yet an unspecified bond and advance rent, and the credit card liability, which I take into account in a global way and without providing any weight to the personal loan liability, I have calculated that a reasonable amount to pay by way of a lump sum is $20,000.00.

21. Turning to the issue of the husband’s ability to pay, his Financial Statement sworn on 3 February 2011 reveals a gross weekly salary of $7,689.00 or $399,828.00 per annum.  The husband has a high level of expenditure.  His oral evidence is that currently his base salary and short-term incentive amounts to $375,000.00 per annum gross.  In addition, based on recent history, the husband may receive a performance bonus.  That bonus in 2009 was $175,000.00 and in 2010 was $200,000.00.  A bonus payable in 2011 has not yet been ascertained.  No evidence was given of any substance to suggest that a bonus was unlikely to be paid, albeit that the level of the potential bonus was not the subject of evidence.  However, on the basis that history is a guide, and absent any evidence to the contrary, I infer that the bonus is likely to be substantial and perhaps in the region similar to the bonuses paid in 2009 and 2010.

22. With regard to the husband’s assets and liabilities, Exhibit 1 is the first page of his personal statement to the bank given on 26 November, 2009.  It demonstrates substantial net assets over liabilities amounting in total to $8,169,000.00.  I accept the husband’s evidence that other pages of that statement made it clear that the gross interest and value shown for the properties at S and T Street represented the interest that he holds with one or other people and that in fact his interest in those properties is represented by 50% of the value shown.

23. Consequently, after allowing for a reduction of those values by 50% the net assets approximately are $5,700,000.00 based on a review of Exhibit 1.

Conclusion

1. I have concluded that the husband has a demonstrated ability to pay the maintenance, both periodic and lump sum, which I propose to order.

2. With regard to the matter of interim costs the order now sought is $30,000.00.

3. The evidence of the wife is that she has not paid a retainer to her current lawyers of $3,000.00 and that there are outstanding accounts rendered to 3 February 2011 of $10,098.00 giving a total of $13,098.00.  That figure does not include the costs of the hearing before me yesterday including:  briefing counsel;  the preparation of affidavits subsequent to 3 February 2011;  obtaining instructions;  and attending conference.  I will take those matters into account, albeit that a figure could not be attached by way of financial assessment.

4. Nonetheless, I have concluded that it is proper in the exercise of the power pursuant to s 117 (2) of the Act to make an order in the lump sum of $20,000.00.

5. It was intimated by counsel that in order to pay an interim costs order a draw-down can be made against a credit-line facility and indeed it was suggested that the husband’s approach may be that there should be a dollar for dollar method used for the purpose of draw-downs to meet the costs of both parties.  No application was made to me for such an order to be made in favour of the husband.

6. Consequently, it is a matter for him and his legal advisers subject to any order sought by either of the parties in that regard.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 22 February 2011.

Associate: 

Date:  4 March 2011