Thomson and Thomson

[2008] FamCA 1189

FAMILY COURT OF AUSTRALIA

THOMSON & THOMSON [2008] FamCA 1189

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – wife not pursuing partial property settlement but seeks interim spousal maintenance - wife’s application cannot be granted as wife’s financial statement does not disclose a need for the amounts she seeks

Family Law Act 1975 (Cth)

APPLICANT: Ms Thomson

RESPONDENT: Mr Thomson

FILE NUMBER: ADC 2249 of 2007

DATE DELIVERED: 22 December 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 22 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SAM BURRELL

SOLICITOR FOR THE APPLICANT: DAVID BURRELL & CO

COUNSEL FOR THE RESPONDENT: MS DI MOROSINI

SOLICITOR FOR THE RESPONDENT: DI MOROSINI & CO

Orders

1. A Directions / Mention hearing be conducted before the Honourable Justice Burr at 9.30 am on Thursday 19 March 2009.

2. The conclusion of trial be listed before the Honourable Justice Burr for three days commencing at 10.00 am on 13 May 2009 (noting 13, 14 and 15 May 2009 has been allocated).

3. On or before 4.00 pm on Friday 27 February 2009 the parties do provide a further Affidavit of Discovery.

4. The husband do forthwith sign such documents as are necessary to facilitate the wife obtaining a $20,000 overdraft facility in connection with the business of B Pty Ltd on the basis that the wife be solely responsible for such overdraft facility.

5. The business of B Pty Ltd be excused from the obligation to pay rental to the partnership of C & V Thomson for the use of the business premises and the wife do receive the rental income from Mr W.

6. The wife’s Application in a Case filed herein on 5 December 2008 be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2249  of 2007

MS THOMSON

Applicant

And

MR THOMSON

Respondent

REASONS FOR JUDGMENT

1. I have before me the wife’s Application in a Case filed on 5 December 2008.   Mr Burrell this morning has indicated that the wife is not seeking at this time any partial property settlement orders from the husband but she is pursuing her claim for interim spousal maintenance.  It is acknowledged that part of her claim in that regard could be considered as being a partial property settlement order.  In any event those aspects of the matter between the parties are agreed. 

2. The agreed aspects are that the husband will sign all documents and co-operate with all arrangements as are necessary to allow the partnership assets to be secured by way of additional overdraft in favour of the wife’s business G Pty Ltd in the sum of $20,000.  It is further agreed that rental paid by Mr W in the sum of $2,390 per quarter be redirected to the wife. 

3. In addition, the wife sought a further $150 per week being the rental income received by the partnership for the property at T.  Mr Burrell pointed out that there was no mortgage on that property and thus the rental proceeds were not needed to discharge any mortgage secured on that property.  However, I note that the parties’ liabilities overall and generally are quite large and I accept that a good deal of the income received by the parties needs to be directed to that indebtedness.

4. I am in no position to grant the wife’s application presently as the Financial Statement filed by her on 17 October 2008 does not disclose a need for the amounts that she seeks.  The onus of course is upon the wife to demonstrate her level of income, her level of expenses, an inability to afford to meet her expenses from her income and then demonstrate that the husband has the capacity to meet any shortfall.  In that Financial Statement she discloses a total average weekly income of $481 and expenses of $360.  To that I accept could quite properly be added $140 per week on expenditure which she pays to her daughter.  Thus on her own Financial Statement she has expenses of $500 per week but an income of $481 per week.  There is thus a very limited shortfall on those figures.

5. I accept that the Financial Statement filed by her may not now reflect the present position but it is the only material upon which I have to rely.  The wife’s Affidavit filed on 5 December 2008, whilst it sets out the need for her to secure additional amounts by way of maintenance, does not give me any further financial information that would assist me in making those orders.  In fact, in paragraph 13 of that Affidavit, she simply craves leave to refer to the Financial Statement filed on 17 October 2008 which does not assist me in that regard.

6. I note that in addition to the redirected rental income from Mr W, it is agreed by the husband that the rental that the wife paid to the business for her own B business is to be waived, that amounting to a further $2,390 per quarter.  $2,390 per quarter is very roughly $200 per week and thus on those combined proposals, the wife will have the benefit of an additional $400 per week in circumstances where her disclosed needs are for an amount of no greater than another $19 per week.  However I do accept, as a matter of general evidence, that she does not have sufficient in order to meet her needs but the specificity is somewhat obscure.

7. In those circumstances I will make the Orders previously indicated by me and stand the matter down to enable the legal representatives to prepare a Minute.

I certify that the preceding seven (7) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: