Tomkin & Tomkin

[2007] FamCA 1080

FAMILY COURT OF AUSTRALIA

TOMKIN & TOMKIN [2007] FamCA 1080

FAMILY LAW – INJUNCTIONS – Interlocutory
FAMILY LAW – CHILDREN – Interim Parenting

Family Law Act 1975 (Cth)

APPLICANT: Mrs Tomkin

RESPONDENT: Mr Tomkin

FILE NUMBER: SYC 1151 of 2007

DATE DELIVERED: 28 August 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 28 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITOR FOR THE APPLICANT: Barkus Edwards Doolan, Lawyers

COUNSEL FOR THE RESPONDENT: Mr Millar

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

1. That leave is granted to all parties to inspect all documents produced on subpoena by Pearson Family Lawyers.

1. That these proceedings are adjourned to the call-over of the Judicial Registrar's Duty List at 9:30 am on 28 November 2007.

1. That the proceedings are adjourned for the purposes of return of subpoena to 11 September 2007 at 10:30 am.

1. That until further order the husband pay to the wife by way of interim spouse maintenance $1,500 per month to be paid unless the parties agree to the contrary in writing into an account nominated by the wife, first payment to be made within 7 days of today’s date and payments to be made monthly thereafter.

1. That the Court notes that order 4 is made on the basis that:

a)the husband proposes to pay by way of child support $1,500 per month school fees to [S School] and [C School] and proposes to pay council rates and water rates in relation to the former matrimonial home at [M]; and

b)the wife receives a salary of $2,977 per month from [T] Pty Limited she is provided with a fully paid company petrol card, fully paid mobile telephone together with ongoing expenses of a mobile telephone plan, the provision and costs associated with an E-Tag and comprehensive insurance premiums and registration in relation to a motor vehicle driven by the wife.

1. That until further order the husband pay as and when they fall due electricity accounts, gas accounts, land line 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 cover.

1. That in the event that the wife’s employment with [T] Pty Limited is terminated the husband shall pay to the wife or cause payments to the wife benefits identical to the benefits received by the wife from that company until further order.

1. That until further order the husband pay upon production of an invoice of expenses associated with the service of the wife’s motor vehicle.

1. That the Court notes:

a)the matter referred to at paragraph 4 of the orders made on 26 February 2007;

b)        that orders 2, 11 and 12 of the said orders continue in force.

1. That any further documents on which either party seeks to rely be filed and served not later than 7 days prior to the conciliation conference fixed for 23 November 2007.

1. That the question of the costs of the parties are reserved.

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 involving a raft of interlocutory financial matters and some parenting issues.  The parties are not able to argue all of the outstanding interlocutory issues today.  It is said that arises, in particular, because of material filed late by the husband, but for whatever reason, the matter needs to go over.  It is sensible that the matter go over to a date in November because the parties have a conciliation conference reappointed for 23 November 2007. 

2. The issue for today is what happens between now and then. Orders were made on 26 February 2007 for certain payments to be made: including legal fees and experts' expenses, but more particularly, and relevantly, as to interim spousal maintenance, an order was made at $1500 per month and that order was made on a stated basis. The Court noted that there was a child support commitment at a certain level, that school fees were being paid and a number of other family expenses were being paid directly. The Court also noted that the wife was in receipt of a salary of nearly $3000 per month from a company and received certain other benefits. 

3. The husband gave notice a short while ago that he could not maintain the maintenance at the rate ordered and notice has been given to the wife, I do not know whether independently, but certainly through the husband, that the company is considering terminating her salary and benefits. The husband's proposal for the period until November is that he only pay water and council rates for the former matrimonial home, child support payments and school fees. 

4. That proposal would have a dramatic impact on the wife’s household. In relation to the company a meeting has been called. It is a company of which the husband is a director with another and in which the husband has a 40 per cent interest, the other director a 40 per cent interest, and somebody else holds a 20 per cent interest.

5. It is bad enough having to determine the interim financial issues this twice, let alone three times. I am not sure even that will to be the end of it. 

6. Spousal maintenance arises from the marriage relationship, and the fact is that parties to a marriage are required to support each other.  If one party is unable to support themselves adequately from their own resources, then the other can be called on to do it, to the extent of their capacity.

7. The reality in a case like this is we do not know today, we did not know in February, we might not know in November, and we may never know what financial resources are available or, indeed, whether the money that is paid by way of maintenance will ultimately be characterised as maintenance or something else. This case is a classic example of that problem because the parties have categories of money moving from one to the other. 

8. The wife owns a property (the former matrimonial home) that is worth $6.5 million.  It has a facility on it limited to $250,000.  That facility has been drawn on for payments of, among other things, legal fees for each of the parties.  The husband, under orders that I made, has been making payments to the wife.  It is suggested that the records of a trust record some of those payments against a loan account or the entitlements of the wife and/or the children from that trust.  It may be that the wife has been paying her own maintenance.

9. The husband says if his legal fees were not being paid from the facility from the wife's property, then he would have to draw on his own resources, his own borrowings to pay that money and that he would not be able to make other payments.  Therefore the wife has been paying the husband’s legal fees so that he can pay moneys towards her support. So the truth of it is I do not know whether the orders that I made had been carried out. 

10. It is argued on behalf of the husband that the wife has a continuing onus to show that she has a need for maintenance. I accept that. However, here, for about 17 years the parties had in place an arrangement whereby the wife was out of the paid workforce.  There is nothing about the breakdown of a marriage, or the consequences of it financially, or as to parenting, or otherwise that makes one better fitted for paid employment. 

11. I have not looked closely at the wife's evidence in relation to this again because I am trying just to make an order to keep the wolf from the door, if that is a proper expression, between now and November.  I do not want to pretend that what is an art at best, is a science for the purposes of today. I think to some extent the logic would have it that there was no objective evidence that there is any difference in the wife's presentation or availability or suitability or capacity for paid employment between February and now.  The reason I made an order that expired in June had nothing to do with her getting back into the workforce, as far as I can tell from the terms of the order, and as far as the submissions go today. The likelihood is that it was done to accommodate a May conciliation conference, and the hope, which is still pressed on me as a possibility, that the parties might be able to resolve the matter at such a conciliation conference.  That is true and that makes sense and I can understand why the order might have been made just until that time.  The conciliation conference did not occur.

12. In those circumstances it is hard for the same judicial officer to make a different decision about the same facts when nothing has changed except the effluxion of time and the frustration of the event that was to terminate the obligation.  Now, I may be wrong about that.  I do not know that it is at the point of a formal estoppel in relation to that issue, but it seems to me that there is no evidence that things have substantially changed. I accept that s.83 does not apply because the orders have expired. In other words, there is no obligation to show a change in circumstances from those that applied in February.  But I do not think it is practicable, I do not think it is appropriate to revisit that issue.

13. So the question is - going forward, how do we secure the shortfall in the wife's budget?  I have not done the arithmetic. It is submitted by Mr Kearney, on behalf of the wife, that even with the paring down of her expenses advocated by Mr Millar for the husband, she continues to have a similar need. On behalf of the wife it is asserted that her expenses compare favourably with the husband’s claim. For example he spends $2,000 per week on his rent. I need to be careful in relation to finding only one party to be guilty of extravagant expenditure.

14. And, again, I made a decision in February that suggests that I accepted at that time that those outgoings were proper and that support was to be provided with all the caveats that one makes about spousal maintenance and how the issue, either by way of contribution or by way of interim property settlement or some other device can be accommodated by a trial Judge in the property proceedings if some significant mischief has been done. 

15. There is no significant evidence that things have improved in that the expenses are lessened in the wife's household and it seems to me that for the purposes of an interregnum to matter through to November I should accept that those same expenses are proper. 

16. The husband says that he cannot afford to provide most of the wife’s support.  He foreshadows that the wife's income will fall by $4500 a month, that the husband will cease to pay $1500 per month that I ordered, and that T Proprietary Limited will cease to pay $3000 per month together with a number of other expenses to the wife. 

17. The order the wife seeks is that the orders continue and leave was given for the amendment of her application to the effect that in the event that the wife's employment is terminated he cause the payments and benefits to the wife to continue, whether himself or through some entity on his behalf. 

18. I am told that the husband's employment has changed in terms of the nature of the entity he works for and that that may have the effect of seeming to reduce his income to the extent of some trust distributions.  It is said on behalf of the wife that the company and trust each seem to show an increase in their assets for 2007.  The business about the company is a bit odd.  If the wife has not been in paid employment for 17 years - I do not know what work she was doing for the company, if ever, but there does not seem to be a suggestion in the husband's documents that something happened to change her status with the company between February and now. The inference you might make from the husband's affidavit is that he is - or one of the gentlemen involved in the company has just decided that that is enough is enough.  That might be right.  It is just an unfortunate coincidence that it happens at the same time as the husband wanted to cease his obligations. 

19. To be fair to him, this was a natural rest in the proceedings, so there is nothing sinister about the timing of his decision but it is odd that his partner Mr N said on 17 July 2007 that the company was no longer prepared to continue paying the wife a salary or continue to provide her with the benefits associated with her employment as she is not performing any work. It is interesting that Mr N purports to speak on behalf of the company and yet he owns only 40 per cent of the shares. Anyway, there is a vote to be taken at a meeting on 30 August, later this week. The three members: the husband, Mr N, and Mr B, will vote on this issue. 

20. I think at the end of the day there is no evidence to suggest that this has been driven by a turn down in the company's affairs, or that there is some new debt that will rise up to take care of the bonus to the company in not having to pay significant amounts to and for the wife. Indeed there may well have been other costs or expenses associated with those outgoings.  It might be that the husband, who has a 40 per cent interest in the company, will have a significant increase in benefit from the company, or could access a significant increase in benefit from the company as a result of this very significant outgoing ceasing.

21. Mr Millar raises the concern about the problem of enforcement proceedings if the husband is ordered to do something he cannot afford. I doubt that will be a problem here. As I say, the parties have an enmeshed financial involvement whereby the wife is paying the husband's legal fees as well as her own through a borrowing; and he has been providing subsidy to the wife's household in various ways.  I think that to the extent that it is possible I should order that he continue to meet those obligations.  It need not be, at the end, dealt with in the way that it is cast - as Mr Millar says, this is a question of some few thousand dollars until November.  But I think the logic of the February decision still remains in terms of the wife's circumstances, and there is all of the doubt in relation to the way the parties have characterised certain payments and I think the best course is to continue the broad obligation.

22. One thing I have not mentioned is that the parties have a child undertaking Year 12 and the father's proposal is to sell the former matrimonial home. The happy outcome of the adjournment will be that the issue in relation to the house is deferred until after the HSC is completed. 

23. I accept that there is the risk that Mr Millar has identified. It may come down to a matter of enforcement.  That might not be the end of the world.  At some point there will be a property settlement between the parties and if there are debts that arise and they have not been interfered with by the Trial Judge, then they could always be adjusted between the parties in the property settlement.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Judicial Registrar I. Loughnan.

Acting Associate:

Date:   12 September 2007