Shaughnessy & Shaughnessy

[2008] FamCA 934

FAMILY COURT OF AUSTRALIA

SHAUGNESSY & SHAUGHNESSY [2008] FamCA 934

FAMILY LAW – CHILDREN – With whom a child spends time
FAMILY LAW – PROPERTY – Orders for sale of matrimonial home
FAMILY LAW – SPOUSAL MAINTENANCE

Family Law Act 1975 (Cth)

Goode & Goode [2006] FLC 93-286

APPLICANT: Mr Shaughnessy

RESPONDENT: Ms Shaughnessy

FILE NUMBER: SYC 6926 of 2007

DATE DELIVERED: 18 September 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: LE POER TRENCH J

HEARING DATE: 16 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITOR FOR THE APPLICANT: Newnhams Solicitors

COUNSEL FOR THE RESPONDENT: Mr Schonell

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan Family Lawyers

Orders

1. That pending further order the children of the marriage, O born … April 2001 and E born … April 2004 spend time with the Husband as follows:

   a.In each three week period during school terms:

   i.From after school Friday in respect of O and at any time from 3.00 pm Friday in relation to E until before school Monday in respect of O and by 9.30 am Monday in respect of E for the first and second weekends thereof.

   ii.On the Wednesday of the third week from after school in respect of O and at any time from 3.00 pm in relation to E until before school Thursday in respect of O and by 12.00 noon Thursday in respect of E.

2. That for the purpose of collection of E for periods of time pursuant to orders 1(a)(i) and (ii) the Mother cause E to be at the carer Ms M at B by 3.00 pm unless E is at school or day care with the Father to collect E from Ms M’s or school or day care, whichever applies, and O from school at the commencement of such period and return the children at the conclusion of such period unless otherwise specified in Orders 1(a)(i) or (ii)

3. Order 2 is to be conditional upon the Husband providing to the Wife his written undertaking to be responsible for any fees charged by the child carer from 3.00 pm on the subject day.

4. The parties immediately do all acts and things necessary to place the property situate at D on the market for sale and shall sell the property in accordance with the following conditions:

   a.Sign all authorities and execute all documents necessary to list the property for sale with Ray White as the selling agents;

   b.Sign all authorities and execute all documents necessary to instruct Brian Maker, Solicitor of Newnhams as solicitors for the sale;

   c.The Husband or his legal representatives shall be responsible for giving instructions to the selling agent and the solicitors acting on the sale;

   d.Neither party will, without the express written consent of the other, cause any other agency to be effected or binding on the parties;

   e.Neither party will take any step to obstruct or hinder sale or the auction/ marketing campaign;

   f.The property is to be sold at auction following an auction program recommended by the agent appointed as the agent on sale.  In the event a prospective purchaser makes a bid on the property prior to the date for auction, the parties may agree on a price and to sell to such a purchaser in writing.  In the event the parties are unable to agree on a price then  the property shall proceed to auction;

   g.The parties or either of them may lawfully bid at the auction;

   h.A reserve price shall be fixed by written agreement between the parties within 14 days of the date of the making of these Orders and failing agreement, the reserve price will be determined within a further 7 days by a valuer (other than the auctioneer) appointed by the parties, or failing agreement, by a valuer appointed by the President of the New South Wales Institute of Valuers upon the written request of either party with each party to pay 50% of the costs of the said valuation;

   i.The Wife agrees to cooperate to provide access to the property at all reasonable times to prospective purchasers and the agent appointed on sale, or his representative;

   j.The Husband and Wife agree to maintain the property in reasonable condition and repair pending completion of the sale;

   k.In the event that the reserve price for the property is not reached at auction on the first auction date, the parties may then negotiate with the highest bidder or any other bidder present at the auction or any other interested party in an effort to sell the property at a price not more than 10% below the reserve price.  If a contract for the sale of the property is not exchanged at a price of not more than 10% below the reserve selling price within 14 days of the auction, the parties agree to forthwith re-list the property for sale by private treaty with the Agent appointed on sale and in the absence of any mutually agreed price the parties shall agree to sell the property to the highest price offered in writing and received by the Agent within a period of 30 days from the auction date or such later date as the parties may agree in writing, provided that such an offer exceeds the minimum agreed price.  If the order does not excess the minimum agreed price then 90 days thereafter a further auction program for sale must commence by another Real Estate Agent as nominated by the President of the Real Estate Services Council or his/her nominee in the same manner;

   l.On settlement, the proceeds be distributed in the following manner:

   i.In payment of any amount necessary to discharge the Husband’s viridian line of credit with the Commonwealth Bank of Australia, account numbers …8 and …6;

   ii.In payment of all legal costs and disbursements commissions and expenses of sale;

   iii.In payment of all outstanding council and water rates;

   iv.10% of the balance thereafter to each of the Husband and the Wife, to be characterised as an interim property settlement;

   v.any remaining balance to be invested in a controlled monies account on trust for the parties jointly, pending final order of agreement.

5. Pending further order the Husband is restrained from any further increase in his liability to the Commonwealth Bank of Australia on the viridian line of credit or any other indebtedness charged against the property at D without first obtaining the written approval of the Wife or further order of the Court.

6. The Husband is to provide to the Wife’s solicitors the sum of $20,000 for the purposes of securing a fund to enable the Wife and the children to move from the former matrimonial home upon its sale, the Husband may sell enough of his shares in public companies to provide the funds should he so desire.

7. Upon the Husband’s depositing the $20,000 with the Wife’s solicitors as required the sale of the former matrimonial home may proceed. The Husband is to provide a full written statement to the Wife’s solicitors at the time of providing the $20,000 setting out details of the sale of any of the public shares that may have been necessary to create the fund.  The trial Judge in the final hearing to determine how these funds are to be treated, that is partial property order, spousal maintenance or in some other way.

8. The Wife is to cause the funds to be deposited in a controlled monies account controlled by her solicitor and she is permitted to draw upon the funds in the controlled monies account to meet the following features:

   a.A bond for a rental property for herself and the children;

   b.Removalist costs to move from the former matrimonial home as required;

   c.The cost of any cleaning of the D property following her departure;

   d.Rental for the property she moves to;

   e.Any other use approved by the Husband in writing, such writing then provided to the Wife’s solicitors.

9. The Wife is to remove herself from the property at D no later than seven (7) days prior to the proposed date of settlement of the sale of the property and leave the property in a clean and tidy state.

10. The Wife’s application for $500.00 per week interim spousal maintenance is dismissed.

11. The Wife’s application for interim child support departure filed on 11 December 2007 is adjourned to a date following the completion of the sale of the former matrimonial home. 

12. The Wife has liberty to apply to re-list the matter before the Docket Judge once the completion of the sale of the former matrimonial home is imminent.

13. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6926  of 2007

MR SHAUGHNESSY

Applicant

And

MS SHAUGHNESSY

Respondent

REASONS FOR JUDGMENT

1. The application and response before the Court seek interim orders.  For the husband's part, he seeks orders to change the current arrangements for the time he spends with the children, O (7) and E (4).  He also seeks interim property orders. 

2. The wife seeks orders which were contained under the heading "Interim or Procedural Orders Sought" in her response filed 11 December 2007 in the Federal Magistrates Court.  That response also contained a list of the final orders sought by the wife. The response, so far as it sought final orders, was overtaken by an amended response filed on 12 May 2008.  The importance of this document will appear later in these reasons.

Short background facts:

1. The husband is 45 years of age and the wife 40 years of age.

2. The parties commenced cohabitation in Darwin in 2000.  At that time the wife had two children: L born in 1992 and C born in 1996. 

3. O was born in 2001.

4. In that same year the parties relocated to Sydney; this was for the purpose of allowing the husband to pursue a career.  As can well be imagined, removing the wife’s two young daughters from Darwin where their father lived was not an easy exercise. 

5. In October 2001, the parties married.

6. In April 2004 E was born. 

7. In May 2004 the parties purchased the property at D where the wife and the children now live.  In order to purchase the property, about $900,000 was borrowed. 

8. The husband has done well in his profession.  He has earned a significant income in the 2006 and 2007 tax years. 

9. In May 2007 the parties separated.  There appeared to be an arrangement which permitted the husband to continue visiting the house after separation. 

10. On 29 January 2008 interim parenting orders were made.  These orders provide for the children to spend time with their father two weekends out of three from 6.00 pm Friday to 6.00 pm Sunday, and every Wednesday overnight from after school/day care until Thursday morning.  O is to spend half the school holidays with her father. There were other orders made.  Under the current orders, the husband collects and returns the children from school/day care or the wife’s residence.

11. In May 2008, the husband commenced cohabiting with W at his rented R property.  The R property was situated close to the former matrimonial home, the children’s schools and day care. 

12. On 28 July 2008, the children’s orders were varied to provide for the husband to collect O at the commencement of his weekend time from her school, and E from 3.00 pm Friday and then return at 6.00 pm Sunday.  Another order was made requiring the husband to rearrange any appointments O might have with her therapist on a particular Friday afternoon. 

13. On 15 August 2008, the husband moved his residence to the Central Coast of New South Wales.  This requires travel of about one and three‑quarter hours each way for the children to spend time with their father. 

14. The husband’s income has decreased over the last eight months.  The husband says that he has not had as much work as he has been able to do in the past which generated a high income for him.  He says this is in part because he does not have the ability to work the long hours which he previously worked because of his commitment to spend time with the children.  The wife says that this drop in income is connived by the husband and was forecast in threats he made to her about the time of separation. 

15. The child O is said by the wife to have very significant health issues.  The husband appears to doubt the degree or severity of these health issues, and apparently, based on submission, believes that the child is over serviced by medical and psychologist services provided to her.  These services and other special activities for O cost the wife very significant amounts of money which she is really unable to afford. 

The orders sought by the husband in relation to variation of the time he spends with the children. 

1. The husband seeks a variation of the orders because he now lives on the central coast.  In his affidavit and in his submissions, the husband has attempted to paint a picture that the move to the central coast was largely required to promote the best interests of the children.  I am unable to draw that conclusion from the evidence before me and/or the submissions.  It appears to me that the move largely serves the needs of the husband and not the children.  When I challenged the husband’s counsel about the husband’s case in this regard, it drew such a robust and spirited response from both counsel and myself that I was invited to disqualify myself from further hearing the case.  Whether I be right or wrong about my view of the move by the husband to the central coast, the children are faced with having to deal with their parents as they are. 

2. The clear and objective evidence from exhibit X1, the child and parent issue assessment prepared by the Family Consultant, is that the children have a very good and close relationship with their father and desire to spend more time with him than they currently do.  The parents appear to have a good capacity to communicate and there is no indication to suggest an equal shared parental responsibility order, s 61DA, would not work or would be inappropriate. 

3. The husband seeks to increase the time he spends with the children so that it concludes on Monday morning.  He sets out the reasons for this which is largely practical arising from the children’s routines and the distance between the parents’ residences.  The wife opposes the change largely because she is concerned about the disruption to O’s routine.  She says that O has special needs and she fears not being able to have O at home on Sunday night to prepare her for Monday’s school may be disruptive and set back her progress in relation to her medical problems. 

4. The husband also seeks to change the Wednesday time with the children to one Wednesday in three.  The current order provides for every Wednesday with the husband.  The proposal to change the time the husband spends with the children on Wednesday suggests to me the husband does not have an appreciation of the children’s needs.  I am sure the children would be unhappy with not seeing their father on each Wednesday.  This does not necessarily mean he should take them to the central coast, however he could consider spending an hour or so with them, especially as he is currently experiencing a considerable downturn in his workload and appears to have the available time. 

5. Further, the decision of the husband to abandon the balance of the time he spends with the children on Wednesdays has a financial consequence for the wife.  She has been able to see clients late on every Wednesday afternoon as she knew the husband was to be responsible for the care and supervision of the two children.  There is no offer from the husband to assist in the care of the children on Wednesday afternoons when he is not having the children overnight.  If I refuse to change the orders, then it seems the husband would take the children to the central coast and subject them to the travel involved in the exercise. 

6. The consideration of interim children’s cases has been the subject of Full Court guidelines in the decision of Goode & Goode [2006] FLC 93-286. The guidelines require a consideration of s 60CC. I here deal with the section and the subsections as they are applicable to this case.

7. In determining what is in a child’s best interest, the section requires the Court to consider the matters in subsections (2) and (3) of s 60CC.  Subsection (2) requires the Court to consider the benefit of the child of having a meaningful relationship with both the child’s parents. 

8. Pausing there, in this case, the children have spent an extensive amount of time with each of their parents following the separation and, in particular, for this consideration with their father, they have spent each Wednesday overnight, and two out of every three weekends.  It seems from the report from the Family Consultant that the children do currently have a good, close and meaningful relationship with both of their parents.  Subsection (2) also requires me to consider the need to protect the child or children from physical, psychological harm, being exposed to abuse, neglect or family violence and, in this case, there is no consideration of that nature that needs to be dealt with at this point. 

9. Section 60CC(3) has a number of subsections which I am required to deal with. The first and very importantly is the views expressed by the child.   The objective evidence from the Family Consultant is that the children really enjoy the time they spend with their father, show no indication of wanting any reduction and, on the contrary, are indicating their desire to spend more time with him.  Interpreting what has come from the family consultant, I must clearly understand that the children desire to spend more time with their father. 

10. Next, the nature of the relationship of the child with each of the child’s parents and other persons.  The children clearly have a close relationship with each parent and in this case with their siblings.  Each parent in my assessment has shown a willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent. 

11. I am required to consider the likely affect of any changes in the children’s circumstances.  The proposals of the husband would see the children spending less time with their father on Wednesday overnights because their time would be reduced to one Wednesday in three, and a further overnight period on Sunday night for the weekends that the children spend with their father.  I fear that the husband has approached this case on the basis that an additional overnight period on Sunday night for two weekends in fact makes up for the Wednesdays he will not be spending time with the children.  I doubt that the children would see it that way and certainly the evidence that is frequently given in this Court about the necessity for young children to spend frequent periods of time with each of their parents would suggest that the cancelling of the two out of three Wednesday nights might not be in the children’s best interest.

12. The next matter requires me to consider the practical difficulties and expense of spending time.  This has become a problem for the children because of the husband’s move.  However, the difficulties in the circumstances are not insurmountable.  One and a half to one and three quarter hours travelling time for the children to pass between households, although significantly greater than that which they have experienced thus far, in the scheme of cases this Court sees is not necessarily excessive, and within our community and society children are frequently expected to undertake such travel as a normal incidence of life.  The important thing is that at this stage there appears to be certainly no recognition on the part of the husband that this travel has adversely impacted on the children or would, and likewise it is not a matter that the wife has raised at this stage. I suspect it is a matter to be observed over time, and to be considered.  Each of the parents in my view has the capacity to provide for the children’s emotional and intellectual needs. The children are of an age where they need to spend frequent periods of time with each of their parents, subject to the criticisms which I have levelled against the husband in these reasons, I otherwise find that each of the parents have appropriately demonstrated responsibilities of parenthood in respect of the children. 

1. I am also required to consider the provisions of s 61DA. I have referred to this section earlier.  This section requires the presumption of equal shared parental responsibility.   In this case it is not suggested that there should not be an order and, to the extent that it is necessary, I find that each of the parents should have equal shared parental responsibility for the children.  That then reflects to s 65DAA.  That section requires the Court to consider the impact effectively of making an order under s 61DA, and requires that if the Court makes such order, that the Court must consider whether the child spending equal time with each of the parents would be in the best interest of the child.  These are interim proceedings, and neither of the parties seek an order for equal time for the children to spend with their father, however, the impact on this case of the provisions of s 65DAA is to stamp on the case the legislators' intention that children should spend very significant amounts of time with each of their parents unless their best interests dictate otherwise.  In this case, the amount of time that the husband is proposing to spend with the children does not in my view appear to be in any way excessive and the objection raised by the wife is one really of concern about the possible consequences of the increased time on the medical condition or disposition of the child O, and again it seems to me that is a matter which it is reasonable to test given the intention of the legislation to permit and enable significant and extensive time for the children to be spent with each of the parents. 

2. Having considered all those matters, the Court must make an order which is in the best interests of the children. 

Conclusion

1. The practical implications created by the husband’s move of residence mean that the children will have less time to develop their relationship with him as they will miss out on significant time with him on two Wednesdays out of three.  They will also have their afternoon sleep routine disrupted if he has to return the children by 6 pm Sunday.  The best interest of the children in my view dictate on balance that the orders be varied as sought by the husband in relation to the time that the children spend with him.

2. I was informed by the husband’s counsel in submission when addressing the orders sought by the husband and at this stage I did interpose to say that the orders moved on by the husband were contained as annexure A to the husband’s case outline document dated 6 August 2008.  I was informed in relation to that document that orders 7 to 12 inclusive in the minute of order were repeats of current orders and therefore in my opinion do not need to be changed. 

3. I have dealt with the orders 2(a)(i) and 2(a)(ii) in the reasons that I have given thus far.  Order 2(b) is not an order which requires to be made as an amendment to the current orders.  The only addition to 2(b) is to specify the part of the school holidays which O would spend with her father in the event of the parties being unable to agree on when that might be.  That seems to me at this stage to be not a matter which I ought to determine as an interim order given that the parties are before the docket judge on 21 November and should it prove to remain a difficulty which is not resolvable by the parties, it can be raised with the docket judge at that time. 

4. Order 4 as sought in that minute by the husband requires the wife to collect the children from the husband’s residence at the conclusion of holiday periods. I would not impose that obligation on the wife as an interim measure. The husband should be responsible for transporting the children to and from their time with him in any circumstance for the present. 

5. Order 5 as sought by the husband imposes an obligation on the wife to have E delivered to a child carer Ms M by 3.00 pm. If this is to occur there should be a written undertaking by the husband to the wife to be responsible for any costs associated with that order as and from 3.00 pm on the subject days.  If the husband fails to meet his obligation which he undertakes to meet, then the requirement of the wife to deliver E to the child carer ought to immediately be discharged. 

6. Order 6 as sought by the husband does not appear to be necessary as there is no evidence the wife has objected to the involvement of the persons referred to in those orders.

Proposed orders

1. I propose to make orders pursuant to paragraphs 2(a)(i) and 2(a)(ii) and 5 as sought by the husband in his minute of order filed with the case outline document dated 6 August 2008.  Paragraph 5 is to be conditional upon the husband providing to the wife his written undertaking to be responsible for any fees charged by the child carer from 3 pm on the subject days. 

Interim property orders 

1. The husband seeks immediate sale of the former matrimonial home at D.  He does so in part because he can not continue to pay the monthly mortgage payment of about $6,196.  This payment is in fact a payment on a business loan.  I was told in submissions that the husband paid off the home loan and borrowed about $900,000 to meet business expenses and acquisition of assets.  The interest on the loan is therefore tax deductible for the husband.  That may be so, however, he still has to earn the income to meet the monthly payment, together with his other expenses.  The husband discloses in his financial statement filed 15 January 2008 that he had shares valued at $87,500. There is no evidence to suggest this asset has been disposed of.  In the affidavit of 24 July 2008, he said the shares had a value of $55,286.  The husband says that both he and the wife seek the sale of the former matrimonial home as final orders. 

2. In the wife’s amended response filed on 12 May 2008, she sought an order for a postponed sale, she sought sale after December 2012.  In the alternative, she sought an immediate sale of the property.  With respect to the wife, it seems unlikely on the facts before me that the Court would make an order for a postponed sale for the duration that she has sought. 

3. I cannot remember seeing an order of this nature for many years.  The provisions of s 81 of the Act work against the Court making such orders.  It was submitted that the husband has not defaulted in the payment of his mortgage. This can only be, with respect, a matter of time.  If the husband’s evidence about the lack of work available to him is true and continues to be true, he must reasonably be predicted to get to a point of being unable to pay his mortgage commitments in a very short time, if he is not there already.  If it is all contrived, then the husband can be expected to move to a point of defaulting in the near future. 

4. In the circumstances, I think it is reasonable that the house be sold now, provided the wife can be provided with sufficient funds to move her to another accommodation and meet rental bonds and other necessary expenses.  The husband does not have ready cash to fund the wife but he does have the share portfolio that could be sold and the funds paid to a controlled monies account with the wife’s solicitor.  I could make an order that requires the sale of the property to proceed once the husband’s shares have been sold and the money deposited in the controlled monies account with the wife’s solicitors, with the wife to stipulate the type of investment account to be applied. 

5. As a result of submissions made today it seems that a fund of not less than $20,000 should be provided for the purpose of relocating the wife and the children.  The husband says he may be able to borrow those funds.  I will allow him an opportunity to do so prior to being required to sell the shares to the value of $20,000 or rather, providing that he may sell shares to the value of $20,000 for the purpose of meeting that commitment.  The sale of the property would free up an additional $6,000 per month for the husband, some of which could be put towards much needed support of the family. 

Spouse maintenance 

1. The wife seeks interim spouse maintenance; the orders set out in her application filed on 11 December 2007 specify these orders.  They require payment of :

   a)the mortgage (Viridian Line of Credit) and outgoings on the property, these commitments are currently being met by the husband voluntarily;

   b)That the husband pay the lease payments for her Volkswagen Golf car;

   c)That the husband pay the private health insurance for the wife;  

   d)Spouse maintenance of $500 a week,

   e)a child support departure order. 

2. Dealing with those in order, the loan payments for the Viridian Line of Credit are secured against the house at D.  The husband’s affidavit of 24 July 2008 updates his expenses at paragraph 22, he there states he pays $1,660 per week on the home loan account, I assume this meets the Bank’s requirements.  He also pays $23 a week for council rates and $53 a week for private health Medibank cover.  It therefore seems that the husband is meeting these payments associated with the house and the Medibank Private and clearly is stating his commitment to do so in the interim pending the completion of the financial proceedings in the Court when final orders will be made.  No interim order therefore in my view is required to be made.

3. In relation to the Volkswagen Golf car lease payments, the wife’s financial statement shows the Volkswagen Golf motor vehicle is owned by the husband and wife and a lease payment of $120 per week is required.  The husband’s evidence does not suggest he is paying that commitment for the parties.  The wife’s financial statement suggests she is making the payment.  As would appear from what I say hereafter, I have determined matters relating to the husband’s capacity to pay and I do not determine at this stage he has the capacity to meet this outgoing and therefore would decline to make that order.

The wife’s payment of maintenance of $500 per week

1. The financial circumstances of the wife are as follows:

   a)Income: the wife’s income from her personal exertion is stated at $780 per week in her financial statement. Paragraphs 23 and 48 in her affidavit filed in Court on 16 September 2008, the wife attached her tax return for 30 June 08, that shows a taxable income of $38,552.  That translates to $741 a week.  There is some suggestion in the evidence that her income may have improved in recent times, however that is likely to change due to the husband not being able to care for the children each Wednesday which allows her to work longer hours.

   b)Payments and commitments:  In her financial statement, the wife shows her expenses as $498 up to and including item 28 in the document.  The stated repayment of $780 to the Commonwealth Bank of Australia does not represent the required payment but another figure which distorts the current exercise.  Her expenses set out in part N amount to $961.  The wife also has to meet expenses of the children not covered by the husband’s child support payment.  Her inability to support herself is therefore demonstrated.  No argument is seriously put that the wife has a greater earning capacity. To the extent that it is suggested I reject same.  The wife has the principle care of two young children, one of whom has significant health problems.  I find therefore that the wife does have a need for maintenance and that need is greater than the amount claimed of $500 per week. 

The husband’s ability to pay

1. It must first be acknowledged that the husband makes a very significant financial contribution to the support of the wife and the children.  On my calculation of payments associated with the house and child support, he contributes over $2,000 per week.  The husband’s evidence is that his income has dropped dramatically in recent times.  There seems no reason why I should not accept that evidence on its face.  The husband is a member of a regulated profession and the consequences for him being deliberately untruthful to the Court, or indeed reckless with the information he provides, are far reaching. 

2. I conclude on his evidence that he has no capacity to contribute further to the maintenance of the wife while ever he meets the Viridian payment.  In the event that he ceases making such a payment, there would be the capacity to meet the maintenance required by the wife.  The parties’ financial circumstances will clearly change once the home has been sold.  The husband will not have to meet the viridian debt, the wife will have the cost of meeting accommodation for herself and the children. The maintenance question should therefore be revisited as and when those matters are settled and a clearer picture of the parties financial circumstances emerges.  I propose to order that the wife’s application for $500.00 interim spouse maintenance is dismissed.

Child support

1. The wife sought a departure from the child support assessment through the administrative processes required by the Child Support Assessment Act. That gave rise to an additional assessment on an annual basis against the husband of $700.00. The wife sets out the children’s financial requirements in her financial statement and her affidavit of 15 September 2008. The expenses clearly exceed her capacity to reasonably meet same. The wife relies upon the special needs of O to justify the departure, as well as other grounds, but in particular that ground. The wife relied upon the ground before the Child Support Registrar who considered her departure application. A copy of the reasons for the determination for that departure application was annexed to the wife’s affidavit.

2. The matter which at this time would operate to defeat the wife’s claim is my acceptance of the evidence filed by and on behalf of the husband dealing with his available income.  That situation will change following the sale of the house.  I therefore propose not to determine the wife’s application for child support departure at this time but give her leave to re-list the matter with updated evidence once the sale of the home is completed.  That will not ultimately prejudice the wife’s claim as the departure order can be made effective from the date of the wife’s application to the Child Support Registrar or earlier if deemed appropriate.  The matter would not have to be determined by me and could be determined by the docket judge or other judge should that be a more expeditious avenue.

3. Proposed order:  The wife’s application for interim child support departure filed on 11 December 2007 is adjourned to a date following the completion of the sale of the former matrimonial home.  The wife has liberty to apply to re-list the matter before the docket judge once the completion of the sale of the former matrimonial home is imminent.

4. For all those reasons I make the orders which I have envisaged as proposed orders as I have delivered these reasons. 

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate:

Date:  13 October 2008