Tomkin and Tomkin (No 2)

[2007] FamCA 1081

FAMILY COURT OF AUSTRALIA

TOMKIN & TOMKIN [2007] FamCA 1081

FAMILY LAW – COSTS – Preliminary
FAMILY LAW – SPOUSAL MAINTENANCE – Interim

Family Law Act 1975 (Cth)

APPLICANT: Mrs Tomkin

RESPONDENT: Mr Tomkin

FILE NUMBER: SYC 1151 of 2007

DATE DELIVERED: 26 February 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 26 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Barkus Edwards Doolan, Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

1. No order is made for the personal protection of the wife or the children or any of them as there are proceedings under the Crimes Act in another jurisdiction.

1. The wife is to sign all documents and do all things to allow drawings on a facility secured on the former matrimonial home for the purposes of legal fees as they are billed for the husband on production of evidence of that billing from time to time.

1. In the event that the facility is drawn as to $150,000 the wife is to forthwith notify the solicitor for the husband of that fact.

IT IS NOTED

1. The husband does not propose to enter the former matrimonial home [at M] in the State of New South Wales until further order save for the purposes of entering on one or more occasions in the presence of his business partner for the purposes of removing personalty from the property at times and dates agreed between the parties.

AND IT IS ORDERED

1. The husband is to pay to the wife by way of interim spouse maintenance $1,500.00 per month and that is to be paid into an account nominated by the wife.  The first payment is to be made on 1 March 2007 and payments to be made monthly thereafter.  Unless the parties agree to the contrary or the Court otherwise orders the last payment will be made on 1 June 2007.

IT IS FURTHER NOTED

1. That order is made on the basis that the husband proposes to pay by way of child support $1,500.00 per month, together with the council rates, water rates, electricity accounts, gas accounts, landline and internet telephone costs and house and contents insurance in respect of the [M] property and the private health insurance premiums with HCF at the existing level of coverage; and on the basis that he will do nothing to cause the termination of the wife’s employment with [T] Pty Limited or to cause [T] Pty Limited to cease paying the wife’s salary of $2,977.00 per month, providing the wife with a fully paid company petrol card, providing the wife with a fully paid mobile telephone and meeting the necessary ongoing expenses of the wife’s current mobile telephone plan; providing the wife with an E-tag and meeting all ongoing accounts for the wife’s use of the E-tag and paying all comprehensive insurance charges and ongoing insurance and registration relation to the motor vehicle currently driven by the wife.

AND IT IS FURTHER ORDERED

1. By way of further order until 30 June 2007 the husband pay on production of an invoice by the wife any expenses associated with the servicing of the wife’s motor vehicle.

1. That the parties attend a conciliation conference at 9:15 am on 17 May 2007.

1. Leave is granted to apply in relation to these orders on giving 7 days’ notice to the Court and to the other party.

1. In the event that the parties have not agreed as to a single expert to value any assets that require valuation for the purposes of these proceedings including the husband’s business and former matrimonial home within 14 days from today’s date, the parties are to forthwith bring an application before this Court on the leave granted to seek an order in relation to that appointment.

1. The wife is to do things and sign all documents to facilitate payment out of the facility secured on the former matrimonial home the necessary fees of any such expert or of any person associated with the appointment of that expert.

1. In relation to the payments of the parties’ legal fees and in relation to payment of any expert’s expenses, the character of those payments is a matter for the Trial Judge.

13.Each party is to bear their own costs.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judicial Registrar Loughnan delivered this day will for all publication and reporting purposes be referred to as Tomkin & Tomkin.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1151 of 2007

Mrs Tomkin

Applicant

And

Mr Tomkin

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a number of interlocutory issues.  The parties, husband and wife, are 44 and 47 years of age respectively.  They married in 1988, separated in April of last year under one roof, and I think the husband left the home earlier this month.  The parties have three children:  a daughter, who is 17, (Year 12 at S School); and twin sons, who are 15 years old (Year 10 at C School). 

2. There are some jurisdictional problems with the case.  There are aspects of the application of the wife that deal with personal protection and s.114AB, and there is a similar section, I think, in s.68, requires that, in effect, a person elect which jurisdiction they are going to take proceedings in relation to personal protection.  It is not as simple as that because there are crossover issues like the use of a home, which is properly a matter within the scope of s.114 and need not relate solely to somebody's personal protection, the use of a home and the protection of assets that are issues that the Court dealing with an application under the Crimes Act would not need to take into account.

3. Having said that, it is an obvious mischief that that there are proceedings in relation to the same issue in two jurisdictions. I have indicated to counsel that I propose to make a notation that I would not embark on any order that had that flavour to it.  This is a case where the parties have made quite serious allegations of violence against each other, and they agree that there have been incidents of violence to which the children have been exposed. The daughter is in Year 12. In making that notation I do not mean to I treat these things lightly and, I say to the parties if these are serious ongoing issues then that the criminal jurisdiction is the place where those things are most properly dealt with. 

4. Violence is abhorrent, and its impact on children, even children of this age, is quite serious.  Somebody will have told the parties about that.  The reason I am mentioning it is they agree the children have been exposed to violence. That must stop - any sign of it has to stop.  One of the privileges of being a child is that you are allowed to love each of your parents equally, and you should not have to take sides or protect one parent from the other.  It is possible that the incidents of violence are situational and it may be that at this moment, in the shadow of separation, the parties have taken leave of their senses and hereafter, once there is an orderly living arrangement in place, all will be well.  That might be the case.

5. The other jurisdictional issue is child support.  The legislature has generally excluded the Courts from jurisdiction in relation to child support.  The only power we have is to review a decision made by the Registrar, to make a decision where the Registrar cannot make a decision because of the complexity of the matter, or to make a decision in the period between the Registrar, being requested to consider a matter, until he makes an assessment.

6. None of those things apply.  I have no power to make an order in relation to child support at all.  Now, of course, families do not work that way. Families do not separate expenses for children from outgoings on a home, telephone bills, moneys spent on food. Children benefit from those expenses.  So the best we can do today is deal with the mother’s claim for her own expenses and those that are hard to disaggregate between herself and the children.  I will make a notation, as I am asked to on behalf of the husband, that he will continue to pay child support at about $1500 a month.

7. So we come back to the matters that are left.  Parenting orders are sought by the wife.   They reflect the problems of the children's ages.  The children are of an age where the control their parents have is reducing, let alone the control the Courts can exercise. It can be problematic for example where a child can override a decision made by the parents or by a Court. Often the Court will refuse to make orders in relation to a 15 year old child, for example. There are factors such as a child under an additional disability or a child who is immature for his or her age that might warrant orders for children of that age but it is unusual. 

8. The orders the wife seeks is that the children have such communication with the husband as is mutually agreed between the children and the husband and as ordered by the Court. That is an unenforceable order and leaves the issue up to the children. The safest thing is that no order is made in relation to the children.  I have not been told of any proposal for the children for the short term, whereby they live anywhere other than with the mother in the former matrimonial home.

9. If there is a problem and if it is necessary to keep the peace, then an order could be made, but I am told that as late as last week there were arrangements between the parties in relation to the children and there is evidence of longstanding arrangements and the involvement of the father with the children's weekly activities. If that can be managed and there is no risk of the children being embarrassed by something their parents do then I would not propose to interfere.

10. And then there are issues about the home.  I think the position is that the husband has said he does not propose to enter upon the premises of the home, except for one occasion.  I got lost a bit in terms of who was going to go with him, but it might be that there is a residual argument about whether he has somebody with him when he goes to the home.  I have embarked on this when the parties have really sorted it out.  The wife would be comforted by an order.  The husband says an order is not necessary.  I think what I will do is just make a notation of his proposals, that is, as much protection as can be given, if the matter has to come back to Court then an order can be rapidly put in place. 

11. Then in a similar vein, the issue of financial support. In a broad term the husband says, "You do not need to make an order about a whole lot of payments I have always made and I intend to continue to make. The wife's preference would be that it be confirmed in an order.  It does not matter much.  I am happy to make a notation that the orders I do make are made on the basis that certain other things are left in place.

12. There is an issue about a facility the wife has secured on the home.  She has a line of credit of $250,000 secured on the home. The home is in her name, and she proposes to use it for legal fees and to meet any shortfall in her weekly expenses, for the exigencies of life. 

13. The Full Court has been critical of first instance decision makers granting injunctions too readily.  In a decision of Waugh & Waugh, the husband in that case was the steward of the family property investment business.  He made a statement that he was going to act to the wife's detriment in relation to the money that was under his control.  There was no history of him doing any damage to the parties and the Full Court said that the trial judge should not have restrained him.

14. There is an argument that runs that any money in the control of either of the party is joint funds and it would be polite, once the relationship has broken down that there be at least notice given if a significant sum of money is to be spent. That would allow the issue to be brought before a Court to prevent damage to the parties or to the claim of one of the parties. It may avoid the funds being reduced below that which would enable the Court to do justice under s.79.  Here the husband says the wife should be restrained in relation to her use of the facility. However, there is no basis to think that if the assets of the parties were reduced by $250,000, there could not be a proper adjustment under section 79.  The amount borrowed could be readily read back into the balance sheet as if the moneys had not been borrowed.  I have not been told anything to suggest that there is a dispute about the family assets on the face of the documents.  There does not seem to be a shortfall in the husband's business assets.  So it is a bit hard to see that there would be any jeopardy. 

15. The only issue then is the question of the use of joint funds.  The husband does not argue that he should be restrained from borrowing any money.

16. It is not improper that the parties borrow for the purposes of meeting their legal expenses. Otherwise the wife should keep the husband advised in the event that for whatever reason the facility is drawn past $150,000. Notice should be given to the husband's solicitor.  That will allow the parties to know how the facility is going.  Otherwise I will not interfere with the wife’s access to the facility. 

17. In relation to maintenance, the wife has an income through the business of $2977 a month. She seeks an additional, in effect, $1500 a month.  She identifies outgoings that total $1,143 a week including all of the normal living expenses, quite generous provision for holidays and entertainment, and lease payments on a motor vehicle. Her claimed expenses exceed her income and her claim for maintenance. Therefore she makes a proper case. The first port of call for maintenance should not be borrowings.  So I will make an order that in addition to the payments that are being made, and I will try and enumerate them, there be a payment of $1500 a month to the wife.

I certify that the preceding seventeen (17) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar I. Loughnan.

Acting Associate:     

Date:  12 September 2007