Trent and Trent

[2014] FamCA 95

FAMILY COURT OF AUSTRALIA

TRENT & TRENT [2014] FamCA 95

FAMILY LAW – PROPERTY – Interim distribution – Where parties previously agreed on distribution of chattels but did not put agreement into effect – Where chattels located in Singapore – Where parties now in dispute regarding chattels – Distribution of chattels to be determined in final orders

FAMILY LAW – PROPERTY – Interim distribution – Where money held in controlled money account – Where husband conceded minimum amount that wife will receive – Where balance of controlled money account exceeds this minimum amount – Order for minimum amount to be released to wife

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where change in wife’s circumstances justifies making order – Quantum of wife’s reasonable expenses – Whether husband’s reasonable expenses should include cost of travelling to spend time with children  – Where husband has capacity to pay – Change in order – Payments to wife to commence upon wife providing evidence of leasing property

Family Law Act 1975 (Cth) s 83

APPLICANT: Ms Trent

RESPONDENT: Mr Trent

FILE NUMBER: SYC 5653 of 2013

DATE DELIVERED: 10 February 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 10 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Santone Lawyers

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

Orders

IT IS ORDERED

1. That the wife’s application contained in order 1 of the Application in a Case filed on 21 January 2014 be dismissed.

2. That by way of interim property settlement the parties do all acts and things required to release to the wife the sum of $190,000 from the Bankwest Term Deposit BSB … Account Number … and that that payment be a payment by way of interim property settlement and that the operation of this order be stayed until 4 pm on 13 February 2014.

3. That upon the wife producing to the husband a lease for residential property executed by the landlord he shall within seven days commence to pay to the wife the sum of $1,097 per week by way of spousal maintenance.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trent & Trent 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 5653 of 2013

Ms Trent

Applicant

And

Mr Trent

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court involve an application by the wife, Ms Trent, to whom I will refer as “the wife”, and Mr Trent, the respondent, to whom I will refer as “the husband”. 

2. The parties have three children aged five, three and a half and 19 months. Those children live with the wife pursuant to orders which were made by consent. 

3. When the parties lived together, they lived in Singapore. 

4. Upon separation the wife came to Australia with the children and the husband remained in Singapore. Ultimately consent orders were made which involved the wife and the children living in Australia and the husband living in Singapore in circumstances where the husband has time with the children once every month. 

5. Also in those proceedings consent orders were made for the husband to make available the wife’s and the children’s belongings specified in a schedule and for the wife, at her expense, to arrange for those items to be brought to Australia. 

6. An order was made, pending further order, restraining the wife from dealing with her interest in a deposit in the sum of $550,000 with Bankwest, save for the amount of $30,000 which was to be used by her to purchase a motor vehicle. 

7. A further order was made that, pending further order, the husband pay to the wife interim spousal maintenance of $500 per week and pending receipt of a child support assessment, that the husband pay to the wife $750 per week by way of child support. 

8. Before me the wife, in an Application in a Case, seeks orders in relation to the property in Singapore which she wishes to retain, an order for interim property settlement in the sum of $190,000 and an order for spousal maintenance in the sum of $2813. 

9. Dealing firstly with the order in relation to chattels in Singapore, the wife has chosen not to put into effect the orders which were made by consent on 2 October 2013. 

10. The items which she now seeks, as far as I can ascertain, are different from the items which were agreed in the schedule in 2013 and I am not in a position in interim proceedings to make an adjudication about which of the husband or the wife should retain each particular item. I do not, therefore, propose to deal with that application which should be included in the parties’ final applications. 

11. Dealing nextly with the issue of interim property settlement, it is conceded that if any order is made for the payment of funds to the wife, it should be done by way of interim property settlement. The amount of money which currently sits in the controlled money account is $555,929. The wife deposes to having a further amount of property at her disposal of $14,528. That gives a total amount in the wife’s hands of $590,457. The husband deposes to having $33,844 worth of property. 

12. Each party has a small amount of superannuation. Thus, it can be seen that the parties are litigating over an amount of some $624,000, excluding superannuation. 

13. The husband in his final application seeks to be paid from the controlled moneys account the sum of $260,000. If the wife were to receive $190,000 that would leave $360,000 left in the controlled moneys account until the determination of the final property proceedings. It is conceded on behalf of the husband that in those proceedings the wife will receive at least $190,000. 

14. I do not accept the submission of the husband that it will then not be possible for the trial judge to ensure that justice and equity are achieved, taking into account the payment to the wife by way of partial property settlement of $190,000 and the payment to her of $30,000 for a proposed purchase of a motor vehicle. I note that the wife has not purchased the motor vehicle and does not account for the funds. 

15. I therefore propose to make the order for partial property settlement which is sought by the wife. 

16. Before I turn to the wife’s application for maintenance, I am required to consider the effect of the order for partial property settlement. 

17. Having read the costs agreements of the Senior Counsel and Junior Counsel for the wife, I am satisfied that she will be required to use those funds to pay her legal fees. Whether she chooses to do so is another matter but if she retains her current legal advisers no doubt she will be required to. 

18. The wife’s income, in accordance with her Financial Statement, is a family tax benefit of $165. She has no other income. Interest is being earned on the Bankwest controlled money account of $422 but that is not available to the wife because she is enjoined from using it. 

19. The husband pays $750 by way of child support but that income is presumed to be devoted to the support of the children. 

20. The wife seeks to vary the order which was made in October 2013. Pursuant to section 83 subsection (2) of the Family Law Act 1975 (Cth), I am required to find that the wife’s circumstances have changed so as to justify the making of an order. I find that the wife’s desire to move into alternate premises rather than to continue to live with her parents constitutes circumstances justifying the variation of an order. Whether or not, however, the amount which she seeks is reasonable is another matter. 

21. Annexed to the wife’s affidavit are documents about the likely cost of renting premises in Suburb S. It does not appear to be in issue between the parents that Suburb S is an appropriate place for the wife and the children to live. It was where they lived before they went to Singapore and the children are in school in Singapore. However, a perusal of the documents annexed to the wife’s affidavit indicates that the median rental price for properties in Suburb S is $930 and there is nothing in the wife’s evidence that suggests that she ought not to be looking for a property to rent in the medium price range. I therefore propose to allow half of that amount or $465 as an expense of the wife. 

22. The wife claims $250 per week for herself for food, $30 per week for household supplies, $6 per week for gas and $20 per week for electricity. I find those expenses are reasonable. I propose to allow her telephone expenses at $50 a week and petrol at $55 a week. Because she does not have a motor vehicle (she uses a borrowed car) I do not propose to allow other expenses in relation to a motor vehicle. I exclude from her reasonable expenses, car parking. I allow $96 a week for clothing. 

23. In the absence of any evidence that she incurs expenses beyond those paid by medical benefits, I do not propose to include medical and dental expenses. I allow $50 a week for entertainment. I exclude her claim for holidays. The chemist’s expenses include those for the children and I propose to allow them at $30. I exclude the claims for gardening, cleaning and repairs and books and gifts. I allow $5 for dry cleaning and $40 for hairdressing, giving a total, on my figures, of $1097 per week as being her reasonable expenses. 

24. Turning then to the husband’s ability to pay, I am conscious that there is a dispute between the husband and the wife as to the appropriate conversion rate to apply and I am not in a position to determine it. 

25. However, on the husband’s sworn documents his income is $6929 per week. It is argued on behalf of the wife that he will receive, in addition, a bonus but there is no evidence other than that a bonus was received at some time in 2013 and I am not in a position to determine whether there will be a further bonus payment in the near future. 

26. I therefore do not intend to take the bonus into account. 

27. The husband’s expenses include tax of $1107, rent of $1444, health insurance of $209 and car payments of $803. I allow the car payments on the basis that the husband is currently contractually liable to pay them. 

28. The husband pays child support of $750. 

29. I propose to make the same allowance for the husband for food as I did for the wife, that is, $250, for household supplies of $10 and for utilities of $105. 

30. I do not propose to allow the balance of the husband’s claimed expenses as being reasonably necessary in the circumstances of this case. 

31. He makes a claim for a payment of $1050 for business class flights once a month to see the children. That claim is disputed but for the purpose only of this calculation, I propose to include it. 

32. I reject the claim for the balance of the husband’s expenses of gymnasium, personal trainer, physiotherapy, acupuncture and massage. 

33. On my calculation the husband’s allowable expenses are therefore $5328 leaving a capacity of $1601 against the wife’s needs of $1097 and I find the husband has a capacity to pay that amount. 

34. However, the husband ought not to be required to pay that amount unless the wife is actually renting property as she intends to do. 

35. Therefore the orders will provide that the husband will commence the payment of $1097 per week by way of spousal maintenance within seven days of the wife producing to him by facsimile or email a lease for a rental property executed by the landlord. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 10 February 2014.

Associate: 

Date:  10 February 2014