Sampey and Sampey and Ors

FAMILY COURT OF AUSTRALIA

SAMPEY & SAMPEY AND ORS

[2014] FamCA 1197

FAMILY LAW – PROPERTY SETTLEMENT – INTERIM PROCEEDINGS – URGENT SPOUSAL MAINTENANCE – Where the husband was declared a bankrupt by his own petition and orders for spousal maintenance were discharged – Where the wife has received no spousal maintenance for almost one and a half years – Where there are child support arrears in excess of $21,000 – Where the wife satisfies the criteria in ss 72 and 77 of the Family Law Act 1975 (Cth) – Where the husband currently receives income from contract work as an orthopaedic surgeon and purportedly receives other financial benefits – Where it is found that the husband has the capacity to pay – Orders made for payment of spousal maintenance by the husband – Orders made for the husband to deliver a motor vehicle to the wife for her use.

Family Law Act 1975 (Cth) ss 72, 75

APPLICANT:

Ms Sampey

RESPONDENT:

Dr Sampey

2^nd RESPONDENT:	Trustee of the Property of Dr Sampey
3^RD RESPONDENT:	D Pty Ltd
4^TH RESPONDENT:	Mr T
5^TH RESPONDENT:	Ms X
6^TH RESPONDENT:	Y Pty Ltd

FILE NUMBER:

SYC

2013

DATE DELIVERED:

11 December 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

11 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr White SC

SOLICITOR FOR THE APPLICANT:

Michael Conley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr De Dessal

SOLICITOR FOR THE RESPONDENT:

De Mestre & Company Solicitors

COUNSEL FOR THE 2^ND RESPONDENT:

Ms Latham

SOLICITOR FOR THE 2^ND RESPONDENT:	Baker Love Lawyers
3^RDRESPONDENT:	No Appearance
4^TH RESPONDENT:	No Appearance
5^TH RESPONDENT:	No Appearance
6^TH RESPONDENT:	No Appearance

Orders

IT IS ORDERED

That the Application in a Case filed 28 November 2014 be adjourned to 10 am on 15 January 2015 before her Honour Justice Stevenson.
That pending further order and pursuant to section 77 of the Family Law Act (Cth) 1975 the husband pay by way of spousal maintenance:
a.The sum of $850 per week in respect of her rental premises;
b.The sum of $559 per week;
c.The costs associated with the wife’s usage of her mobile phone up to a maximum of $100 per month;
d.The amount of $150 per month with respect to the wife’s Commonwealth Bank of Australia visa card in her name.
That the first payment in relation to spousal maintenance is to be made on 18 December 2014 and weekly thereafter.
That the husband shall forthwith deliver to the wife the German motor vehicle registration number … for her sole use.
That the husband shall ensure that lease payments with respect to that motor vehicle in order 4 herein are made as and when they fall due.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sampey and Sampey and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 87 of 2013

Ms Sampey

Applicant

And

Dr Sampey

Respondent

And

Trustee of the Property of Dr Sampey

2^ND Respondent

And

D Pty Limited

3^RD Respondent

And

Mr T

4^TH Respondent

And

Ms X

5^TH Respondent

And

Y Pty Ltd

6^TH Respondent

REASONS FOR JUDGMENT

Before the Court is an Application in a Case filed on 28 November 2014 on behalf of the wife, seeking orders for the joining of two companies, B Pty Limited (“B”) and C Pty Limited, orders for spousal maintenance and orders in relation to child support.
Briefly, the history of the matter is this. The wife was born in 1970 and is currently 44 years of age. The husband was born in 1964 and is currently 50 years of age. The parties commenced cohabitation at the time of their marriage in 1994 and separated on 7 December 2012.
During the marriage, the husband worked as an health professional and the wife did not engage in paid employment from the birth of the first of their three children, to whom she was the parent primarily responsible for care. There are three children of the marriage, J born in 2000 and now aged 14, K born in 2002 and now aged 13 and L born in 2007 and now aged seven. The care of the children is shared between the husband and the wife.
On 10 January 2013 the wife commenced proceedings in the Family Court of Australia and on 20 February 2013 Aldridge J made orders for spousal maintenance.
On 22 February 2013 his Honour varied those orders and on 22 April 2013 the orders were again varied by Watts J.
From 20 February 2013, when the first spousal maintenance order was made, until the order was discharged on 19 February 2014, the husband was required to pay $26,000 but according to the wife, paid only $11,700, leaving a shortfall of $14,300.
The husband also failed, either wholly or partly, to comply with orders requiring payment of specific expenses.
On 22 July 2013 the husband, by his own petition, was declared bankrupt.
On 27 November 2013 the husband filed an Application in a Case seeking the discharge of the orders for spousal maintenance.
That application came before me on 19 February 2014 and was granted. I ordered that the spousal maintenance order made on 22 April 2013 be discharged as at the date to which it stands paid.
The Application in a Case filed on 28 November 2014 is supported by an affidavit of the wife and exhibits, 1,273 pages of documents. The application and the affidavit were served on the solicitors for the husband on Friday 5 December. Counsel for the husband sought an adjournment of the application on the basis that the husband had been given insufficient time to consider the material filed in the wife’s case and to file his own evidence.
It is appropriate in the circumstances to grant that adjournment and the matter will be listed before Stevenson J on 15 January 2015. However, in circumstances where the wife has received no payment of maintenance since June 2013 and where there are arrears of child support in excess of $21,000 and no child support is currently being paid, it is appropriate to consider whether or not provision should be made for the maintenance of the wife pursuant to section 77 of the Family Law Act 1975 (Cth).
Section 77 provides that where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the Court that the party is in immediate need of financial assistance but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the Court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the Court considers reasonable.
The wife, in support of her application, has filed a Financial Statement. She deposes to an income from exertion of $120 per week. She is in receipt of government benefits which, for the purpose of this application, are not to be included, of $470 per week. She does not receive child support. Her fixed expenses, including rent and car hire, are $1,415. She pays car hire in circumstances where the car which she previously drove has been repossessed after the husband failed to maintain the lease payments in accordance with an order made by this Court. She discloses expenses for herself in part N of the Financial Statement of $515 a week.
I am satisfied that the wife meets the threshold criteria in section 72, in that she is unable to support herself adequately.
I turn now to consider the husband’s capacity to pay, having regard to the fact that the period for which the order will stand is approximately five weeks.
There is no dispute that the husband receives an income of $595,000 from B. He is an orthopaedic surgeon and has a contract with B which specifies that income. The wife asserts that this is not the only financial benefit that the husband receives from B or from D Pty Limited, to which I will refer as D.
A company search of D discloses that the husband was a former director of D and that the shares in D were previously owned by Sampey Pty Ltd, a company in which the husband has an interest. The current director of D is Ms F, with whom the husband has been in a relationship for a number of years. A company search of B discloses that B is wholly owned by D. It is an issue for another time whether either of those companies is the alter ego of the husband. Documents exhibited in the wife’s case suggest the following things:
a)Mortgage payments of $30,000 per month are paid by D and B in relation to property owned by the husband.
b)Payments of school fees have been made by D to schools which the children attend.
c)Between 3 February 2014 and 10 April 2014 the husband received $59,000 from D.
d)Payments were made to the husband’s solicitors by D.
The wife, in her affidavit in support of this application, deposes to the husband in January 2013 having the children delivered to her residence in a limousine. Two times after this the children were collected from school by limousine, including during the week prior to the meeting with Dr Z for the family report. On 9 September 2013 the husband hired a 4WD to collect J and K. In the July 2014 school holidays two of the children and their grandmother were flown to Canberra by the husband and then transported by limousine to AA Town where they stayed in a five bedroom home. At the end of their holiday they were again transported by limousine to Canberra.
The wife also deposes that the children are delivered to sport on Saturdays by limousine. In 2014 the husband hired a cruise boat for his daughter’s birthday party to which friends of the husband and of his daughter were invited.
The matters to which I have referred are not all of the assertions of the wife in relation to the husband’s income, however, those matters, in my view, are sufficient in the circumstances of section 77 for me to be comfortably satisfied that, contrary to the evidence given by the husband in February 2014, the husband can pay the modest amount of spousal maintenance which the wife seeks.
In addition to periodic payments of money, the wife asks the Court to make an order that the husband make available for her use a motor vehicle. She currently rents a car in order to deliver and collect the children from school and from their activities. The wife’s car was repossessed in July 2013 when the husband, in breach of orders made by this Court, ceased to pay the lease. The husband has two cars in his control and B and/or D pay all of the associated costs in relation to those cars. The wife seeks an order that the husband deliver to her, for her use, the German motor vehicle, registration … and in my view, it is appropriate that he do so and that he cause the payments in relation to that motor vehicle to be maintained during the period when the vehicle is used by the wife.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 December 2014.

Associate:

Date: 30 January 2015

[2014] FamCA 1197

11 December 2014

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Remedies

Jurisdiction