SPENCER & MARKS
[2011] FamCA 174
•11 March 2011
FAMILY COURT OF AUSTRALIA
| SPENCER & MARKS | [2011] FamCA 174 |
| FAMILY LAW - PROPERTY – interim property settlement – whether such an order under ss 79 and 80(1)(h) is “just and equitable” and appropriate in the circumstances. |
| Family Law Act (1975) Cth: ss 75(2), 79, 80(1)(h) |
| Strachan & Strachan (2009) FamCAFC 166; Jones v Dunkel (1959) 101 CLR 298; O’Meara v Dominican Fathers [2003] ACTCA 24 |
| APPLICANT: | Mr Spencer |
| RESPONDENT: | Ms Marks |
| FILE NUMBER: | SYC | 2429 | of | 2010 |
| DATE DELIVERED: | 11 March 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rose J |
| HEARING DATE: | 27 January 2011; 7-8 February 2011 |
| WRITTEN SUBMISSIONS: | 15, 21 & 28 February 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | B Richards and T Messner |
| SOLICITOR FOR THE APPLICANT: | Paltos Briggs |
| COUNSEL FOR THE RESPONDENT: | J Levy |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
Orders
Interim property orders
That the husband forthwith sign all documents and do all acts and things necessary to cause the sale of his … foot … boat (“the boat”) at the best price reasonably obtainable and he shall apply the sale proceeds as follows:
(a) payment of selling costs, if any;
(b)payment of mortgage arrears (“the mortgage arrears”) pursuant to the mortgage granted over the property situate at …, N (“the former matrimonial home”);
(c)payment to the husband of the balance, if any, remaining.
That the husband promptly provide the wife through her solicitors with written particulars of the manner of listing the boat for sale, all offers for purchase received by him or on his behalf, copies of the sale agreement, particulars of all arrangements made for completion of sale and copy of the cheque/s and bank statement/s showing payment and receipt of the selling price.
That until further order the husband is restrained from selling, transferring or encumbering the boat other than for the purpose of complying with Orders made this day.
That the husband promptly provide written particulars of the annual bonus, if any, received by him at any time in 2011.
That in the event of the husband receiving his annual bonus prior to the sale of the boat referred to Order 1 he shall forthwith apply that bonus in satisfaction of the mortgage arrears in relation to the former matrimonial home.
That until further order the husband promptly pay all mortgage instalments in relation to the mortgage over the former matrimonial home as and when they fall due.
That the remaining applications of the parties for interim property orders are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Spencer & Marks is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC2429 of 2010
| Mr Spencer |
Applicant
And
| Ms Marks |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the applicant husband (“the husband”) sought interim property settlement orders in accordance with his Application in a Case filed 20 September 2010. Subsequently, that application was amended unopposed by the Minute of Orders sought by him marked Exhibit 2.
Exhibit 2 seeks orders that the parties join in the sale of the property situated at N (“the former matrimonial home”) and that the net proceeds of sale be apportioned on the basis of 55% to the wife and 20% to the husband with the balance to be held in a joint controlled monies account.
In the alternative, the husband seeks orders that the wife pay all mortgage arrears (“the mortgage arrears”), mortgage instalments and outgoings in relation to the former matrimonial home.
A further order sought by the husband in the event that his application for either of those orders are refused is that the parties join in an application to Suncorp (“the mortgagee”) for refinancing on certain terms, including an increased loan of $100,000.00 to be apportioned equally between the parties.
In addition, the husband sought an order for costs.
The orders sought by the respondent wife (“the wife”) by her Further Amended Response filed 24 January 2011 are that the husband pay all mortgage arrears and continuing mortgage instalments in relation to the former matrimonial home. In addition, the wife sought orders that the husband pay her $45,000.00 to enable her to acquire a new motor vehicle.
Further orders sought by the wife were to the effect that the husband sell “the boat” and that the net proceeds of sale “up to $45,000.00” be paid to the wife in satisfaction of the order for a lump sum payment, to which I have referred.
Injunctive relief was sought by the wife to restrain the husband from selling, encumbering or transferring his interest in the boat other than in accordance with the order sought by her.
A similar injunction was sought in relation to the manner in which the husband may apply his bonus or incentive payments received from his employer.
The wife also sought an order for costs.
Historical background
I make the following findings in relation to historical matters which are not controversial.
The parties cohabited for a period of approximately 22 years which commenced during 1987 and continued until they separated on 6 April 2009. They have lived separate and apart from each other continuously since that time.
The parties married on 10 October 1994.
The parties were divorced on 4 July 2010.
The husband is 46 years of age. The husband is employed in the finance industry in Sydney.
The wife is 47. The wife is employed in the finance industry in Sydney.
There are three children of the marriage (“the three children”), namely:
(a) T who is 13 years of age having been born in April 1997.
(b) M who is 12 years of age having been born in February 1999.
(c) B who is 8 years of age having been born in August 2002.
The three children live in the primary care of the wife which has been the situation since the parties separated.
For some time since separation the three children have spent periods of time in the care of the husband during school term from Thursday after school until Monday before school each alternate week and during Monday evenings in the other week.
In 1995 the parties purchased a home unit in C for $350,000.00. The unit at C was funded by the wife’s inheritance of $30,000.00 and a mortgage advance of $300,000.00, with the balance from earnings and/or savings.
The unit at C was sold by the parties in 1999.
In 1999 the former matrimonial home was purchased by the parties for $680,000.00. The purchase price was funded by combination of the net proceeds of sale of the unit at C, a mortgage advance of $400,000.00 by the mortgagee (“the mortgage”) and the sale proceeds of Telstra shares.
In 2004 renovations were carried out to the former matrimonial home at a cost of about $400,000.00 funded by an increase in the amount secured by the mortgage.
On 20 July 2010 Registrar Cameron made directions for a conciliation conference to be held with a Registrar on 27 September 2010. Issues were not resolved at that conference.
On 16 December 2010 interim orders were made by me requiring the parties to forthwith sign all documents necessary to make application to the mortgagee in respect of the former matrimonial home to cause its mortgage to be converted to an interest-only mortgage or similar facility.
On 27 January 2011 the hearing of the parties’ respective applications for interim orders commenced before me. Extensive periods were provided to the parties to enable them to negotiate a potential settlement. Whilst all of the issues were not compromised, orders were made by consent as well as other orders as follows, including fixing the part-heard hearing for 10.00am, 7 February 2011:
“1.That by consent Orders are made in terms of the handwritten minute of consent orders dated today, filed in Court and annexed hereto.
2.That the part-heard interim property settlement proceedings are adjourned to 10.00am 7 February 2011 before Justice Rose.
3.That leave is granted to the solicitor for the wife to issue subpoenas to produce documents returnable before a Registrar on 2 February 2011.
4.That for the purpose of Order 3 the proposed subpoenas to produce documents are directed to the husband’s partner and her immediate employer and the solicitors for the wife are excused from compliance with the Rules in relation to returnable dates and service.
5.That the proposed affidavit of the husband’s partner be filed and served on or before 4.00pm 28 January 2011.
6.That the final hearing of the property settlement proceedings be expedited and the solicitors for the parties may approach the Associate to the Case Management Judge (Sydney Registry) for the purpose of seeking hearing dates.
NOTATIONS:
A.A typescript of the minute of consent orders be emailed to the Associate to Justice Rose on or before 4.00pm 28 January 2011.
B.A minute of directions will be forwarded by email to the Associate to Justice Rose in relation to an expedited final hearing on the basis that the directions sought are by consent with a view to such directions being made in Chambers without the necessity for a further court event.
C.In relation to Order 4 the solicitor for the husband has indicated through counsel that she is prepared to accept service on behalf of the husband’s partner in relation to the proposed subpoenas to produce documents.”
“Minute of consent orders
1.That the husband and wife forthwith do all act and things including but not limited to signing all documents necessary to make application to Westpac Banking Corporation to refinance the mortgage over the former matrimonial home with an option of one or all of the following:
(a)A refinancing of the amount to discharge the existing mortgage.
(b)A refinancing of the existing mortgage and the capitalising of interest payable on the refinanced sum for a period of 12 months or such little as Westpac are prepared to agree.
(c)In addition to the refinance in paragraph (b) above, the borrowing of a further amount of $100,000.
(d)A refinancing of the existing mortgage and the additional borrowing of a further $100,000.
(e)Whether or not any refinanced amount can be paid on an interest only or capitalised interest basis.
2.That for purposes of making the application referred to in Order 1:
(a)The husband shall pay any application or other fee including valuation in the first instance.
(b)Each party shall be restrained from commenting on the other party in the application and can only provide the information required by Westpac for the purpose of the application.”
On 27 January 2011 the hearing commenced. During the course of issues being raised by counsel I was informed that the interest-only payments amount to approximately $5,000.00 per month. In addition, that payment of principal and interest is $6,800.00 per month and that the current mortgage arrears were approximately $20,000.00. Subsequently, counsel informed me that the mortgagee would not take any action in relation to enforcement of the mortgage arrears provided that monthly payments of principal and interest were made. Further, counsel for the husband stated that his instructions were that the husband’s partner had resigned from her employment that morning. A proof of evidence was furnished to counsel for the wife. Upon hearing further submissions, I granted leave to the husband to file and serve a proposed affidavit by his partner. Leave was granted to the wife to issue appropriate subpoenas to produce documents directed to Business 1 being the employer of the husband’s partner.
On 27 January 2011 the proceedings were adjourned by consent on a part-heard basis and fixed for continuation on 7 February 2011.
On 7 February 2011 the evidence in the part-heard hearing was concluded. Leave was not sought on behalf of either of the parties to cross-examine the other party or any witness.
On 7 February 2011 counsel for the husband stated that it was anticipated that Westpac Banking Corporation Limited would make known its decision the next day in relation to the refinancing application. There was some prospect that agreement would be reached between the parties on a final basis. Accordingly, by consent the proceedings were stood over for mention at 10.00am, 8 February 2011.
On 8 February 2011 the issues between the parties had not been finally resolved. By consent orders were made for the lodgment and service of written submissions by the parties on or before 5.00pm on 15, 22 and 28 February 2011 respectively. In addition, I granted leave for the proceedings to be relisted by arrangement with my Associate for the purpose of making consent orders. In the events which transpired such leave was not availed of, presumably as the parties were unable to reach agreement.
On 15, 21 and 28 February 2011 written submissions were lodged by counsel.
Relevant legal principles
A detailed review of the relevant authorities is provided in the Full Court’s Judgment in Strachan & Strachan (interim property orders)[1].
[1] Strachan & Strachan [2009] FamCAFC 166 (also reported in (2010) 42 Fam LR 203)
With regard to the power to make interim property settlement orders and the judicial approach required, I distil the following principles or guidelines provided in Strachan:
·The exercise of the power provided to s 79 may “be exercised by a succession of orders until the power is exhausted”.[2]
·The power to make an order for interim property settlement is found by the application of ss 79 and 80(1)(h).
·There are two stages to the hearing of such an application. “The first step is to resolve whether to exercise the power before a final hearing and if it is resolved to do then the second step involves the exercise of that power.”[3]
·In relation to the first step, the consideration of whether to exercise the power under ss 79 and 80(1)(h) “to make an interim property order” the “over-arching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise that power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after final hearing”[4].
[2] Ibid at paragraph 113
[3] Ibid at paragraph 118
[4] Ibid at paragraph 132
Whilst not the subject of submissions in the proceedings before me, it is certainly arguable that the relevant power does not provide an “unfettered” discretion in that the order made must be “just and equitable” as provided by s 79(2) and of course must be exercised judiciously. However, the next paragraph of this Judgment refers to matters which the Full Court enunciated which could be taken to read down the reference to “unfettered discretion”.
· In relation to the second step or stage:
“...as the jurisdiction under s 79 of the Act is being exercised the provisions of that section must be considered and applied but with limitations given that it is not the final hearing. There is also no requirement of compelling circumstances in relation to the substantive step.”[5]
· With regard to the “adjustment issue” by reference to interim orders that fall for consideration on a final hearing, the discretionary power in s 79 “is to make such order as the court considers appropriate provided it is just and equitable to make the order in circumstances where the power will not be exhausted by the interim order”.[6]
· The consideration of matters in ss 79(4) and 75(2) “may be brief” and where it is established that the probability is that the applicant will be likely to “receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”.[7]
· The legislation does not prescribe “preconditions” nor can one “exhaustively prescribe matters that may be relevant to take into account in the exercise of the discretion under s 80(1)(h) of the Act”.[8]
[5] Ibid at paragraph 135
[6] Ibid at paragraph 136
[7] Ibid at paragraph 137
[8] Ibid at paragraph 138
It seems to me that the last-mentioned guideline must be read in conjunction with the requirement to consider all relevant matters pursuant to ss 79(4) and 75(2) as the legislation itself prescribes all matters that may be relevant to take into account.
Property of the parties
Exhibit 1 is a balance sheet giving details of the net property of the parties including superannuation entitlements reproduced as follows:
“[Marks & Spencer] Balance Sheet Assets Ownership Wife’s Estimate ($) Husband’s Estimate ($) 1 [Property at N] Joint 1,500,000 1,500,000 2 Furniture & effects, husband’s residence H 12,000 12,000 3 Furniture & efffects, former matrimonial home W/J 15,000 20,000 4 Jewellery W 2,000 5 St George […] account […] H 39 39 6 St George […] account […] H 1,318 1,318 7 Suncorp […] cheque account […] H 0 0 8 CBA […] account […] Joint closed 0 9 CBA […] account […] W 40 10 [Company 1] shares (622) H 236 236 11 [Company 2] shares (36) H 2,273 2,273 12 [Company 3] shares W 11 11 13 Motor vehicle W 4,000 4,000 14 Boat, […] foot […] H 34,000 34,000 Income wasted by the husband added back H NK 0 15 Income unaccounted for by the husband H NK 0 Total 1,570,917 1,573,877 Liabilities 1 Home loan account Joint 872,568 872,568 2 Suncorp Metway credit card H exclude 7,500 3 American Express Gold card […] H exclude 16,356 4 David Jones card 001206174 H exclude 1,775 5 St George Visa card 4564 5777 8027 8765 H exclude 15,096 6 CBA Platinum Mastercard […] W 16,217 7 Go Mastercard W 4,768 8 American Express Gold card […] W 12,418 9 Personal loan from [R Spencer] H exclude 30,632 NAB Mastercard H exclude 8,874 Total 905,971 952,801 Net assets Assets 1,570,917 1,573,877 Less liabilities 905,971 952,801 Total 664,946 621,076 Superannuation 1 [P Superannuation ] H 17,417 17,417 2 [C Superannuation] H 149,860 149,860 3 [M Superannuation] H 28,732 28,732 4 [D Superannuation] member no. […] W 29,355 29,384 5 [F Superannuation] W 125,000 123,453 6 [E Superannuation] 4,258 4,258 Total 354,622 353,104 Net assets & superannuation Net assets 664,946 621,076 Plus resources 354,622 353,104 Total 1,019,568 974,180”
It is apparent from Exhibit 1 that there are relatively small areas of dispute. I accept Exhibit 1 in its entirety given that the proceedings before me are for interim orders and counsel did not seek to cross-examine, to which previous reference has been made. That should not be interpreted as a criticism but rather part of the manner in which the proceedings were conducted before me. To that extent it followed the conventional practice.
Consequently, I find that the net property of the parties is in the range of $621,076.00 to $664,946.00 together with the superannuation entitlements of the parties described in Exhibit 1.
I accept the evidence contained in Exhibit 1 and find accordingly.
Contributions
I find that each of the parties has made substantial contributions both direct and indirect in relation to their property.
The husband has been engaged in full-time employment in a senior executive role with his employer and has earned a high salary with annual bonuses. On the evidence before me, the husband has applied his earning towards the acquisition of property and in meeting liabilities and living expenses.
The wife has also been employed in the finance industry. The wife has been engaged in such employment generating earnings utilised by her indirectly towards the acquisition of property, meeting liabilities and living expenses. In addition, the wife made a further financial contribution represented by an “inheritance” of $30,000.00 applied by her towards the payment of the purchase price of the unit at N.
Each of the parties made a contribution to the welfare of the family in the role of homemaker and parent.
I infer that the husband’s overall financial contributions were greater than that of the wife. I also infer that the wife has been the primary carer of the three children, particularly following their births and subsequent to separation.
Relevant section 75(2) matters
I make the following findings in relation to relevant matters pursuant to the provisions of s 75(2).
The husband and wife are 46 and 47 years of age respectively. Each is in good health.
The income of the husband is set out in his Financial Statement sworn and filed 20 September 2010. Further evidence in relation to it is given in his affidavits. I accept the husband’s evidence in his financial statement. Consequently, I find that the husband’s principal sources of income are his salary of $6,414.00 per week gross and discretionary bonus of $3,423.00 per week gross totalling $9,837.00 per week.
The husband’s income tax liability is shown in his financial statement at $3,875.00 per week. No tax differentiation is shown as between salary and bonus. As a result, I infer that the tax shown applies to both sources of income. Accordingly, the husband’s income from his employer, including the bonuses, amounts to $5,962.00 per week net after tax or $310,024.00 per annum net.
The husband raises an issue as to whether or not he will in fact receive a bonus this year. The husband’s Affidavit sworn and filed 16 December2010 refers to a telephone conversation that he had on 13 December 2010 with the head of human resources for his employer in the Asian region. The conversation made reference to a direction from the European Regulator forcing European employers such as the husband’s employer to restrict bonus payments effective 1 January 2011. The human services director informed the husband that his employer had not made any announcements or decisions but expected that employees would be notified. Annexure “A” to that last affidavit includes a print-out from the BBC Business News dated 12 December 2010 relating to the European Regulator’s restrictions on bonuses in Europe.
Whilst I accept the evidence that the European supervisor’s committee has imposed restrictions on bonuses that such European employers can pay staff, I am not satisfied on the balance of probabilities that such a restriction has been or is likely to be extended to the husband’s employer in Australia. No application was made on behalf of the husband to give further evidence of any new development in that regard, notwithstanding that the anticipated bonus would be payable in March 2011.
I accept the husband’s evidence that he has the following commitments which must be met from his after tax income:
(a)Rent $802.00
(b)Mortgage $1,525.00
(c)Life insurance $46.00
(d)Loan repayment to father $70.00
(e)Credit cards $1,593.00
(f)Health insurance $52.00
(g)Child support $417.00
(h)Total $4,505.00 per week
Consequently, the husband has funds of $1,457.00 per week ($5,962.00 - $4,505.00) available for meeting the balance of school fees and discretionary spending. That weekly amount equates to $75,764.00 per annum.
In addition, counsel informed me that the child support assessment relating to the husband’s liability for child support will be reduced in the immediate future to between $174.00-$250.00 per week. Consequently, the husband will have additional available funds and correspondingly the wife’s available funds to meet child support will be reduced.
The husband has a valuable financial resource represented by significant loans made available to him by his father including in recent times funding to enable the purchase by the husband of a farm property at O for $325,000.00. The arrangement between the husband and his father is that the husband will repay him from such funds available to him following final orders for property settlement. I accept the husband’s evidence in this regard. However, the husband’s evidence is silent in relation to who it is that will meet the ongoing rates, insurance and maintenance expenses for the property at O.
The husband cohabits with Ms S. The husband’s partner also has the full-time care of her 10 year old daughter.
The income of the husband’s partner represents an indirect financial resource of the husband, albeit to a limited extent.
The husband’s Financial Statement sworn and filed 20 September 2010 reveals that the husband’s partner earns $1,442.00 per week equating to $74,984.00 per annum gross. That evidence is repeated in the husband’s Affidavit sworn and filed 20 September 2010. In that affidavit the husband states that his partner is employed as a personal assistant by Business 1 on a full-time contract for six months. In addition, the husband’s financial statement claims that his partner pays $500.00 per week “towards credit card”. I have inferred that this payment is made because living expenses are debited which include at least a portion of her own expenses as illustrated by the notation to item 60.
On the first day of the hearing, I was informed by counsel for the husband that the husband’s partner had resigned that day from her employment. I provided an opportunity for an affidavit to be sworn by the husband’s partner to be filed and served dealing with that relevant event. On the second day of the hearing I reminded counsel for the husband of this matter. Counsel then informed me that her instructions were that such a proposed affidavit would not be relied upon.
An Affidavit of Mr F, Chief Financial Officer of Business 1 was sworn on 4 February 2011. Mr F stated that the husband’s partner worked for his employer from August 2010 and was last sighted by him “shortly before Christmas”. Mr F further stated that he had neither seen nor spoken to the husband’s partner at all this year. He was not required for cross-examination. I accept Mr F’s evidence and find accordingly.
The husband’s partner was in Court on the first day of the hearing. Leave was not sought to call her to give oral evidence. Consequently, in those circumstances due to the lack of an affidavit sworn by her notwithstanding the opportunity for such an affidavit to be filed and served and the conduct of the husband’s case on the basis that an affidavit to be sworn by his partner was not to be relied upon, I infer that any evidence that the husband’s partner might give would not assist the husband’s case in terms of dealing with the issue of her employment and the application of her income.[9]
[9] Jones v Dunkel (1959) 101 CLR 298; O’Meara v Dominican Fathers [2003] ACTCA 24 at paragraph 69.
Accordingly, I find that the husband’s partner is in employment receiving income and applying it at the level and in the manner to which I have earlier referred.
I find that the husband has the property, liabilities and financial resources as set out in Exhibit 1. The husband has a financial resource represented by his father who has historically advanced to the husband significant sums of money, albeit on terms requiring repayment.
The wife’s income is set out in her Financial Statement sworn 8 December 2010 and filed 9 December 2010. The wife’s principal source of income is her salary of $2,558.00 per week gross less tax of $754.00 giving her a net weekly salary in the sum of $1,804.00.
The wife’s estimated weekly expenditure includes but is not limited to the following:
(a) Rates $51.00
(b) Life insurance $11.00
(c) Home insurance $30.00
(d) Health insurance $37.00
(e) Motor vehicle insurance $24.00
(f) Motor vehicle registration $8.00
(g) Credit cards $253.00
(h) Total $414.00 per week
That results in $1,390.00 per week available to meet a range of necessary and discretionary expenditure.
The largest item so far as the latter is concerned is child care of $450.00 per week and entertainment of $200.00 per week, apart for food for herself and the three children of $450.00 per week.
Whilst, strictly speaking, the expenses apportioned for the three children are referable to child support, in the context in which each of the parties seek interim property settlement orders it is appropriate to have regard to all avenues of income, including child support as well as all expenses for each of the parties. That is consistent with the manner in which the proceedings were conducted by counsel.
I accept the evidence set out in the wife’s Financial Statement which appear to be reasonable in all the circumstances. Whilst the wife was criticised for incurring child care of $450.00 per week, that must be seen in the context of her being engaged in full-time employment in a senior position in the finance industry whilst having the primary care of the three children who are aged 13, 12 and 8 years of age respectively. It was not the husband’s case that the wife should be engaged in part-time employment to be more available for the care of the three children, thereby reducing or perhaps avoiding altogether child care expenses. The consequence of that approach would have been that the wife’s income would be reduced, perhaps leaving her open to a different criticism that she should be engaged in full-time employment.
Until recently, the wife’s child support assessment for payment by the husband was $1,839.00 per month. This has been significantly reduced on the husband’s lodgment of his objection to the Child Support Agency with the result that the amount payable will now be $857.92 per month.
I accept the wife’s evidence in relation to her income and expenditure which in all the circumstances appear to be reasonable especially in the context of these proceedings in which the affidavit evidence of the parties was not tested as neither party was cross-examined.
The wife has the property, liabilities and financial resources described in Exhibit 1. The maternal grandmother has been a financial resource in that she has lent funds to the wife to enable her to pay legal costs.
I find that the wife has a capacity to earn income in her current employment as a senior manager employed in the finance industry.
The wife has the primary care of the three children of the marriage, all of whom have not yet attained the age of 18 years. The husband has the care of the children for lesser periods of time.
The parties have the commitments for the support of themselves and the three children as set forth in their respective financial statements.
It was not contended on behalf of the husband that he has the responsibility for the support of his partner and her daughter.
Each of the parties has superannuation entitlements as set forth in Exhibit 1.
The parties have enjoyed a good standard of living during the period of cohabitation. The husband has enjoyed a high level remuneration and benefits from his employer. The three children attend private schools.
The husband cohabits with his partner. The financial circumstances relating to the cohabitation are the subject of earlier findings of fact.
The child support payable is the subject of findings set forth in paragraph 70.
Conclusion
The respective applications for interim orders made by each of the parties have, as their platform, their contentions that the financial circumstances of one party or the other are not as dire as have been alleged.
I have determined to make orders requiring the husband to sell the boat in order to utilise the proceeds of sale to discharge the mortgage arrears and that he be solely responsible for payment of mortgage instalments in relation to the former matrimonial home until further order. In addition, I will order that in the event of the husband receiving his annual bonus prior to the boat being sold then he apply the bonus to pay the mortgage arrears. My reasons are as follows.
I have made findings of fact in relation to relevant aspects of each party’s financial circumstances. It must be recognised that those findings are in the context of interim proceedings in which the evidence was not tested by cross-examination. As a result, part of the evidence lies in a grey area such as the competing schedules of the husband’s use of his income represented by the Affidavit of G affirmed 14 December 2010 and filed in court on 16 December 2010 and the schedule annexed to the Affidavit of the husband sworn and filed in Court on 27 January 2011 reflecting a different period.
Consequently, I was driven to carry out my own analysis based upon the financial statements and affidavits of each of the parties and, in particular, the former documents.
I have made a finding that the husband has available to him $1,457.00 per week in discretionary spending which he can apply for payment of the balance of school fees payable over and above the amount paid by his employer and for living expenses.
Whilst I have not accepted the husband’s evidence of the alleged precarious position that he is in so far as the payment of his annual bonus due this month, I do recognise that an important element of him having available funds, to which I have referred, is that he does in fact have the benefit of such bonus. I accept the wife’s evidence that he has received an annual bonus since 2000 and that in March 2010 the bonus was approximately $178,000.00 gross resulting in a payment of about $95,000.00 net. A similar amount had been previously paid. For the reasons given by me, I declined to find that he was unlikely to receive either a bonus at all or a lesser amount similar to that received last year.
The mortgage is in arrears as at the hearing for an agreed amount of approximately $20,000.00. The parties joined in applications for refinancing. The first application was unsuccessful. An application was pending with Westpac Banking Corporation Limited. I was informed by counsel that a decision would shortly be made known by that bank. No communication was received by my Associate in that regard. Consequently, I am unaware of the fate of that refinancing application.
The husband also has the indirect benefit, albeit limited, of his partner’s available income. No evidence was given by her, whether by way of affidavit or orally, explaining her current financial circumstances and in particular her employment, notwithstanding the opportunity for the husband to adduce such evidence. I have earlier referred to the curious circumstances surrounding her employment. Whilst counsel for the wife made submissions referring to an affidavit of the husband’s partner, I have not taken that submission into account for the reason that counsel for the husband informed me that an affidavit of the husband’s partner would not be relied upon in the husband’s case.
In addition, the husband has the benefit of the financial resource represented by advances made by his father notwithstanding the terms upon which such advances have been made to date.
The husband owns the boat with an agreed value of $34,000.00 as reflected in Exhibit 1. The boat is unencumbered.
I accept the husband’s evidence that he purchased the boat in order to provide enjoyment for himself and the children when they spend periods of time with him. However, I have concluded that there is more benefit for the children in maintaining stability of their residence, than the enjoyment of the boat. In addition, the payment of the mortgage arrears will financially benefit both the husband and the wife as it will assist in maintaining their only significant asset namely, the jointly owned former matrimonial home, at least in the near future, subject to payment of mortgage instalments. It should also assist their profile as senior executives in the finance industry for mortgage arrears to be paid as soon as possible.
Consequently, orders will be made as sought by the wife in relation to sale of the boat, with the application of its proceeds towards satisfaction of mortgage arrears and restraining the husband from selling, encumbering or transferring the boat in the interim other than for the purpose of satisfying the order that I will make.
With regard to the issue of whether or not orders should be made requiring the parties to join in the sale of the former matrimonial home. The wife contends that she consented to the husband’s earlier application for an order that the parties join in the listing of the former matrimonial home for sale on or about 1 March 2013.
However, the order sought by the husband, as set out in his Initiating Application filed 22 April 2010 was in the context of the order that he also sought which would require the parties to equally meet all outgoings in respect of the former matrimonial home. The wife has consistently opposed such an order being made.
Consequently, I do not give any weight to the position taken by the parties in relation to a prospective sale on or about 1 March 2013.
The wife has also sought an order that an amount up to $45,000.00 be utilised by her for the purchase of a new motor vehicle. I am not satisfied that it is appropriate to make such an order.
It is clear that there is a lack of any immediate source of funds under the control of the husband, or any asset that he may realise, other than the boat to enable such funds to be made available. The husband is likely to receive a bonus this month. I am not satisfied that the likely amount can be the subject of a finding. On the face of it each of the parties is a high income earner, particular the husband. They may have to reassess their lifestyle in order to reduce expenditure wherever possible, at least until the substantive proceedings between them are resolved.
I do not accept the submission made on behalf of the husband that maintaining the former matrimonial home is “solely for the wife’s benefit”.[10] It is common ground that the former matrimonial home is occupied not merely by the wife but also the three children of the marriage. There is no immediate financial imperative to cause its sale having regard to the findings I have made in relation to the husband’s financial circumstances and the orders which will be made today.
[10] Written submissions 15.2.2011 p8
In the interim, I am satisfied that the orders which I will make are appropriate in the interests of justice and are just and equitable pursuant to ss 79 and 80(1)(h) having regard to my findings of the parties’ respective contributions, direct and indirect to their property and relevant s 75(2) matters to which I have referred.[11]
[11] Strachan & Strachan supra.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 11 March 2011.
Associate:
Date: 11 March 2011
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