STEINER & STEINER

[2015] FamCA 526

FAMILY COURT OF AUSTRALIA

STEINER & STEINER [2015] FamCA 526

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife seeks interim spouse maintenance – Where the husband concedes that the wife is unable to adequately support herself pursuant to s 72 – Extent of the husband’s capacity to pay – Where the husband’s gross weekly income is not agreed – Orders made for the payment of interim spouse maintenance.

Family Law Act 1975 (Cth) s 72

APPLICANT: Ms Steiner

RESPONDENT: Mr Steiner

FILE NUMBER: SYC 6196 of 2014

DATE DELIVERED: 7 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 26 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S. Schonell

SOLICITORS FOR THE APPLICANT: Somerville Legal

SOLICITOR FOR THE RESPONDENT: Mr Shepherd

SOLICITORS FOR THE RESPONDENT: Shepherds The Family Law & Mediation Specialists

Orders

1. Pending further order:

   (a)That the husband pay to the wife by way of interim spouse maintenance the sum of $2,500 per week.

   (b)That the husband pay comprehensive insurance in respect of German motor vehicle registration number … by way of interim spouse maintenance for the wife.

   (c)That, otherwise, all outstanding applications for interim orders are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Steiner & Steiner 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 6196 of 2014

Ms Steiner

Applicant

And

Mr Steiner

Respondent

REASONS FOR JUDGMENT

Proceedings

1. By an Amended Application in a Case dated 18 February 2015

   
   

   Ms Steiner (“the wife”) sought orders for interim spouse maintenance; interim child support departure and a payment to her by the husband of a sum of $25,000.  At the hearing on 26 June 2015 the wife pressed only her application for interim spouse maintenance.  She sought orders that the husband pay her rental of $2,100 per week, together with a sum of $960 in the form of a payment of $4,160 per month.

2. Mr Steiner (“the husband”) sought orders which would require him to pay interim spouse maintenance of $1,500 per week, together with comprehensive insurance for the wife’s motor vehicle.  The husband is prepared to meet the cost of private health insurance for the parties’ children and to cover their out-of-pocket dental expenses.  He pays child support in the sum of $963 per week directly to the wife on a voluntary basis.

Background

1. The husband and the wife, who are both aged 44, began to live together in 1992 and married in 1994.  The parties separated on 17 March 2013 and were divorced on 25 August 2014.

2. There are four children of the marriage:

   ·          B born in 1995 (19)

   ·          C born in 1997 (17)

   ·          D born in 2000 (15)

   ·          E born in 2002 (12).

   All of the children live with the wife in rented premises at Suburb F.

3. In approximately 2005 the husband established an internet consultancy and coaching business.  This enterprise is conducted by a company known as

   
   

   G Pty Ltd (“the company”) which is the trustee of the

   
   

   Steiner Family Trust (“the trust”).  The husband and the wife are both directors of and equal shareholders in the company, which trades under the name H Pty Ltd (“the business”).

4. The parties always resided in rented premises during the marriage.  These rented properties have contained office premises and a dedicated film studio, which the husband used in the course of the business.

5. At separation the family lived in a rented semi-rural property at Suburb I.  The rental was $2,050 per week, which the husband continued to pay until the wife and children were required to vacate these premises in March 2013.  The husband moved into a rented apartment at Suburb J.

6. The wife then entered into a lease of her present premises at Suburb F, at a rental of $2,100 per week.  The landlord accepted the wife as sole tenant on the basis of the husband’s agreement to transfer the bond from the Suburb I property and to pay rent for a period of six months.

7. The wife had access to the parties’ credit cards and bank accounts after the separation.  In July 2014 the husband cancelled the Amex card, but the wife continued to have access to a Visa card and the parties’ joint NAB account.  The husband paid the children’s schooling expenses and the outgoings in respect of the Suburb F property.

8. In September 2014 the husband began to deposit a sum of $1,634 per week into a National Australia Bank account in the wife’s sole name.  In January 2015 he commenced voluntary payments of child support in a total amount of $963 per week.

9. On 8 January 2015 the husband deposited a sum of $2,800 into the wife’s bank account.  He has maintained these payments since that date.  The husband also continued to pay amounts described by the wife as “our additional expenses” and voluntary child support.

10. On 25 February 2015 the parties agreed that the husband pay to the wife a lump sum of $20,000 and weekly sums in a total amount of $3,463.  On 1 May 2015 the parties agreed further that the husband would continue to pay a weekly amount of $3,463 and that the wife would receive the net proceeds of the winding up of a company known as K Pty Limited.  The wife received an amount of $49,257 from that source on 19 May 2015.  It appeared that there was a dispute as to whether the wife has an entitlement to a greater amount from the winding up but that issue is not relevant for present purposes.

11. On 22 June 2015 the husband informed the wife that he intended to reduce the weekly payment by $1,000.  He transferred a sum of $2,463 into the wife’s account on 23 June 2015.

Consideration

1. The husband’s legal representative properly conceded that the wife is unable to support herself adequately for the purposes of section 72 of the Family Law Act 1975 (Cth). The issue is thus the amount which the husband should pay to the wife by way of interim spouse maintenance.

2. In his Financial Statement of 12 January 2015 the husband deposed to an estimated gross weekly income of $6,707 and expenses of $7,663.  He claimed that his income consists of salary of $2,307 and distributions of approximately $4,400 from the trust.

3. Historically, notional distributions have been made by the trust to the wife and the parties’ eldest child.  It seemed to be common ground that the wife did not in fact receive these funds in specie, although she had unfettered access to the parties’ bank accounts and credit cards in 2011, 2012 and 2013.  The reality is that the husband has sole control of the income generated by the business.

4. In his Case Outline counsel for the wife set out various calculations and submissions which were said to establish that the husband has a gross weekly income of “not less than $15,370.42”.  I do not accept this contention, which rests on a number of assumptions.  For example, these calculations assume that the entirety of the funds generated by the business is available solely to the husband.  In reality, the wife had unfettered access to the parties’ credit cards and joint accounts for a considerable period after the parties’ separation.

5. Equally, however, I am of the view that the husband probably underestimated the figure to which he deposed as his gross weekly income in his Financial Statement.  There was no evidence as to the source of the sum of $4,400 per week which he claimed to receive as distributions from the trust.

6. The husband deposed that he has operated the business from rented premises since its inception.  I am satisfied that he claims at least part of the rental for his current premises as a business tax deduction.  Accordingly, his fixed weekly expenditure as set out in his Financial Statement is probably somewhat less than the figure of $7,663.

7. The wife rents a five-acre property which has six bedrooms and four bathrooms.  The husband contended that it is open to her to reduce her fixed expenditure by leasing a property at a lower rental.  It seems to me that there is substance in that submission.

8. It appears that the husband has recently agreed on two occasions to pay to the wife a total weekly sum of $3,463.  He in fact did so between early March and late June 2015.  In my view, it is appropriate that the husband continue to provide this level of financial support.

9. This weekly sum of $3,463 seems to be the total of the husband’s voluntary child support of $963 and an amount of $2,500.  It seems to me that the husband should pay interim spouse maintenance in the sum of $2,500 per week.  I am also persuaded that it is appropriate that the husband pay comprehensive motor vehicle insurance in respect of the wife’s car.  The manner in which the wife expends the sum of $2,500 per week is a matter for her.

10. I will make no orders in relation to the payments which the husband makes to the financial support of the parties’ children.  He has been providing these funds on a voluntary basis and I see no reason to doubt that he will continue to do so in the future.  In any event, there is no administrative assessment of child support and the wife properly conceded that I have no jurisdiction to make a departure order.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 7 July 2015.

Associate: 

Date:  7 July 2015