Sampey & Sampey & Ors

[2015] FamCA 89

FAMILY COURT OF AUSTRALIA

SAMPEY & SAMPEY AND ORS [2015] FamCA 89

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife seeks interim spouse maintenance – Where the wife seeks an interim costs order – Where the wife claims that two companies are the alter ego of the husband – Where husband seeks a lump sum payment for spouse maintenance – Where an order is made for the payment of interim spouse maintenance to the wife – Where parties are joined to the proceedings.

FAMILY LAW – PROPERTY – CHILD SUPPORT – Where the wife seeks a child support departure order – Where the wife seeks payment of arrears of child support – Where the husband and wife have not provided evidence of a review of the current assessment.

Family Law Act 1975 (Cth) s 72
Family Law Rules 2004 (Cth) r 6.03

APPLICANT: Ms Sampey

1^st RESPONDENT: Mr Sampey

7th RESPONDENT:	B Pty Ltd
8th RESPONDENT:	C Pty Ltd

FILE NUMBER: SYC 87 of 2013

DATE DELIVERED: 19 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 15 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr White SC

SOLICITOR FOR THE APPLICANT: Michael Conley Lawyers

SOLICITOR FOR THE 1^ST RESPONDENT: Husband in person

COUNSEL FOR THE 7^TH & 8^TH RESPONDENTS: Mr Klooster

SOLICITOR FOR THE 7^TH & 8^TH RESPONDENTS: Lander & Rogers

Orders pending further order

1. That the husband make the following payments to the wife by way of interim spouse maintenance:

   (1.1)$850 per week on account of rental

   (1.2)$559 per week

   (1.3)Costs associated with the wife’s mobile telephone to a maximum of $100 per week

   (1.4)$150 per week minimum credit card payment

   (1.5)Lease instalments in respect of a European motor vehicle registered number …

   with all such payments to be made to a bank account nominated by the wife and the first of which to be made within seven days of the date of these orders.

2. That the companies B Pty Ltd and C Pty Ltd be joined as respondents to these proceedings.

3. That, otherwise, the wife’s Amended Application in a Case filed on 12 December 2014 and the husband Response to an Application in a Case dated 22 December 2014 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sampey & 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

Mr Sampey

1^st Respondent

And

B Pty Ltd

7^th Respondent

And

C Pty Ltd

8^th Respondent

REASONS FOR JUDGMENT

The Proceedings

1. By an Amended Application in a Case filed on 12 December 2014 the wife, Ms Sampey, sought orders which may be summarised as follows:

   1.That the companies B Pty Ltd (“B”) and C Pty Ltd be joined as respondents to the proceedings.

   2.That the husband pay to the wife, by way of interim spousal maintenance, $850 per week on account of rental, $559 per week, mobile telephone costs to a maximum of $100 per week, $150 per week minimum credit card payment and lease instalments in respect of a European motor vehicle.

   3.In the alternative to the above orders, that the husband cause these payments to be made to the wife from specified bank accounts operated by B and D Pty Ltd (“D”).

   4.That the husband pay to the wife arrears of spouse maintenance in an amount of $14,300.

   5.In the alternative to that order, that the husband cause the two companies to pay to the wife arrears of spouse maintenance.

   6.The husband pay to the wife arrears of child support in the sum of $21,598.

   7.In the alternative to that order that the husband cause the companies to pay to the wife arrears of child support.

   8.That there be a child support departure order, such that the husband meets the children’s private school fees and expenses and medical costs.

   9.In the alternative to that order, that the husband cause the companies to make payment to the wife in accordance with such child support departure order.

2. The wife also sought an order that she receive a sum of $150,000 from the husband or his trustee in bankruptcy on account of interim costs.  This issue was resolved by way of orders made by consent between the wife and the trustee.

3. Under the heading “Interim Costs” in her Amended Application in a Case, the wife sought an order to restrain the husband and the company D from dealing with funds in a specified bank account.  I assume that the wife did not press for this relief, since the issue of interim costs was resolved as indicated above.  In any event, there was no evidence of service of the wife’s Amended Application in a Case on this company and I would not make any orders which affect its interests in these circumstances.

4. By a Response to an Application in a Case the husband sought orders which may be summarised as follows:

   1.That the existing orders for spouse maintenance be discharged in accordance with orders made on 19 February 2014.

   2.That the wife’s Amended Application in a Case be dismissed.

   3.That the wife pay to the husband within seven days spouse maintenance in a lump sum of $150,000.

   4.That there be a child support departure order such that the wife and the husband pay 30 per cent and 70 per cent respectively of the children’s school fees and expenses.

Background

1. The husband was born in 1964 and is presently aged 50 years.  He is a medical professional who practices in Sydney and E Town.  The wife was born in 1970 and is presently 44 years of age.  She has part time employment.

2. The parties married in 1994 and separated on 7 December 2012.  The husband has repartnered with Ms F, with whom he lives presently in a rented home at Suburb G.  It appears that the lease of this property is held by Ms F.

3. The husband alleged that the wife has been involved in several “de facto” relationships since the parties’ separation but there was no evidence to corroborate that contention.  The wife lives in a property H Street, Suburb I for which she pays rental of $850 per week. 

4. There are three children of the marriage: 

   J born in 2000 (14)

   K born in 2002 (13)

   L born in 2007 (8)

   The boys attend M School and L is a pupil at N School.  The parties share the care of the children pursuant to final parenting orders made by consent in November 2013. 

5. On 1 July 2013 the husband entered into a contract with B, which provides that he receive an annual salary of $595,613.  The wife maintained that this agreement is a device entered into by the husband to conceal the true level of his income. 

6. On 22 July 2013 the husband was declared bankrupt on his own petition.  Since July 2013 he has paid a weekly sum of $3,444 to the trustee in bankruptcy.

7. The husband was a director of B between 25 September 2006 and 25 October 2012.  Ms F was appointed a director on 1 January 2008.  Since 25 October 2012 Ms F has been the sole director of this company.  The husband has never been a shareholder of B.  The current sole shareholder is D.

8. The husband was a director of D between 20 March 2006 and 20 May 2009 and again for one day on 9 October 2012.  Ms F was appointed a director on 9 October 2012.  She has been the sole director since that date.  The husband has never been a shareholder of D.  The current shareholders are Mr O and Mr P Sampey, who are a friend and brother of the husband respectively.

9. On 11 December 2014 interim orders were made, inter alia, as follows:

   2.That pending further order and pursuant to s 77 of the Family Law Act 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.

   4.That the husband shall forthwith deliver to the wife the [European] motor vehicle registration number … for her sole use.

   5.That the husband shall ensure that lease payments with respect to that motor vehicle in Order 4 herein are made as when they fall due.

10. The wife’s Application in a Case filed on 28 November 2014 was adjourned to 15 January 2015.  The wife subsequently filed an Amended Application in a Case on 12 December 2014. 

11. The wife contended that B and D are alter egos of the husband.  In support of this proposition the wife relied upon voluminous bank statements which were exhibited to her affidavit of 27 November 2014.  These statements show the following, inter alia:

    ·Payments to Q Finance, for flights and E Town and Sydney airport expenses, M School, Hummer Limousines and the husband’s trustee in bankruptcy ($6,088) and to the husband’s then solicitors from a Westpac account operated by D ($28,000).

    ·Payments for flights and airport expenses, rent, to the husband’s then solicitors, “withdrawal cash Suburb R” in amounts including $60,000 and $17,950, domestic expenses for example Coles at Suburb R, Luna Park, Woolworths at Suburb S from a Westpac Bank account operated by B.

    ·Payments to people including “Mr T”, “Ms U”, “Mr V”, from a Westpac Bank account operated by B.

    ·Mortgage repayments to St George Bank made by D and B in 2013 and 2014.

12. The husband is a registered proprietor of a property W Street, Suburb R which he occupied until about August 2014.  The husband claimed that this property was damaged in a truck collision and rendered unsafe, hence he moved into the Suburb G home leased in the name of Ms F.  The payments and withdrawals to which reference is made above from accounts conducted by D and B occurred at times when the husband was a resident of Suburb R. 

Consideration

Interim Spouse Maintenance

1. The husband chose to file no updated Financial Statement and elected to rely upon his document sworn on 25 November 2013.  He claimed that there has been no change to his financial position since that time.  I have some difficulty in accepting that proposition.

2. The husband deposed in his Financial Statement to a gross weekly income of $11,442.  He claimed that he had the following fixed items of expenditure, inter alia:

   Tax   $4,813

   Mortgage repayments in respect of the Suburb R property  $936

   QBE Insurance for medical indemnity  $1,558

   Q Finance  Amount unspecified

   Trustee In Bankruptcy   $3,444

3. As appears above, D and B have made payments on account of St George Bank mortgages and to Q Finance.  I am far from satisfied that the husband’s access to funds to meet his fixed and discretionary expenses is limited to money which to which he has a contractual entitlement of $595,613 per annum.  Further, bank statements for both of the companies show that they made payments to the husband for his personal domestic benefit. 

4. I am not prepared to find, at this stage of the proceedings, that B and D are alter egos of the husband.  In my view, such a funding would require careful cross-examination of the husband and perhaps other persons.  I am prepared to find that the husband has access to funds from these entities from which he meets part of his fixed and discretionary expenditure.

5. I have suspicions that the husband, Ms F and perhaps Mr O and Mr P Sampey are involved in a scheme to minimise his income to the detriment of the wife.  Nonetheless, I cannot see my way clear to the making of such a finding.  In any event I struggle to understand what enforceable orders I could make to compel the husband, who is neither a director or shareholder, to procure payments from B and/or D. 

6. The wife has very limited income, being $120 gross per week from her employment. The husband maintained that she has an unexercised capacity to earn a greater amount but there was no persuasive evidence to that effect. The wife engaged in no paid employment between June 1997 and April 2013 but has now re-entered the paid workforce on a limited basis. I am satisfied that, at this stage, the wife is unable to support herself adequately for the purposes of s 72 of the Family Law Act 1975 (Cth) (“the Act”).

7. For reasons indicated above, I am satisfied that the husband has a capacity to pay spouse maintenance. It seems to me to be proper that there should now be interim orders which provide that he pay the sums specified in the orders made pursuant to s 77 of the Act on 11 December 2014.

Arrears of spouse maintenance

1. The wife gave no explanation for her delay in seeking an order for payment of arrears of spouse maintenance, nor failure to enforce the relevant order.  In the exercise of my discretion, I decline to make this order in such circumstances.

Arrears of child support and departure order

1. I do not propose to side line the processes of the Child Support Agency which were designed for calculation of child support and collection of arrears pursuant to existing assessments.  It seems to me that both the parties should avail themselves of these well established methods before resorting to the litigation process.  There was no evidence before me that either party sought to review the current assessment. 

Motor vehicle

1. Orders were made on 11 December 2014 to the effect that the husband cause delivery to the wife of a European motor vehicle registered number ...  I can see no utility in my now replicating this order. 

2. In her affidavit of 12 January 2015 the wife indicated that she would like the husband or one of the companies to provide to her a lump sum of $34,000 to enable her to purchase a motor vehicle.  There is no application to that effect before the Court and I will not make such an order in these circumstances.

Relief sought by the husband

1. There is no extant fund in possession of the wife, from which she could pay a lump sum of $150,000 to the husband on account of spouse maintenance.  There was a suggestion in the affidavit material filed by the husband that the wife and the trustee in bankruptcy have consented to final property orders, by which they will receive 70 per cent and 30 per cent respectively of the net pool of assets and superannuation.  I was not taken to any such orders, despite having been presented with hundreds of pages of written evidence.

2. In any event, it is well settled that there are good reasons which militate against orders for lump sum maintenance.  In brief, the circumstances of either or both parties may change and thus necessitate further litigation.

Joinder of B Pty Ltd and C Pty Ltd as parties to the proceedings

1. Objection was purportedly taken to the joinder of these two companies as respondents to the proceedings.  In circumstances where I was satisfied that the provisions of r 6.03 had been complied with, I see no reason why these two entities should not be joined as parties to the proceedings.  There will be an order accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 18 February 2015.

Associate: 

Date:  19 February 2015