Tuohy and Tuohy
[2017] FamCA 756
•25 September 2017
FAMILY COURT OF AUSTRALIA
| TUOHY & TUOHY | [2017] FamCA 756 |
| FAMILY LAW – PROPERTY – Interim orders – Construction of order by consent –Whether payment of monies by husband to wife was to be paid weekly or monthly – Consideration of the construction of the order as a whole – Not an order for payment each calendar month – Where order was for payment of monies each four week period |
Family Law Act 1975 (Cth) s 77
| Hughes & Hughes [2013] FamCAFC 146 |
| APPLICANT: | Mr Tuohy |
| RESPONDENT: | Ms Tuohy |
| FILE NUMBER: | ADC | 2667 | of | 2017 |
| DATE DELIVERED: | 25 September 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 19 September 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richards |
| SOLICITOR FOR THE APPLICANT: | Howe Jenkin |
| COUNSEL FOR THE RESPONDENT: | Mr Lindsay |
| SOLICITOR FOR THE RESPONDENT: | David Burrell & Co |
UPON NOTING the following:-
(a)That the husband will pay or cause to be paid:-
·The children’s private school fees, fixed charges, books and uniforms;
·The children’s swimming lesson costs and other sporting memberships, sporting equipment and competition entry fees;
(b)That the husband does not anticipate that there will be any difficulties in releasing to the wife the valuation report or reports as to the interests of the parties in the B Joint Venture as referred to in paragraph 34.1 of the husband’s affidavit filed 4 August 2017 within four (4) to six (6) weeks.
Orders
That until further order the husband do pay or cause to be paid (and all arrears thereof) to or on behalf of the wife:-
a)The sum of TWO THOUSAND DOLLARS ($2,000) per week or EIGHT THOUSAND SIX HUNDRED AND SIXTY SEVEN DOLLARS ($8,667) per calendar month with the first payment to be made on 9 October 2017;
b)The mortgage payments and outgoings on C Street, D Town (“the D Town property”);;
c)The lease payments on the wife’s motor vehicle;
d)The private health insurance premiums and any gap expenses not covered by medical benefits for the wife.
That Mr E (real estate valuer), Mr F (personal goods and chattels valuer) and G Wines (wine valuers) will be jointly instructed by the parties within twenty one (21) days to undertake the valuations with the parties to agree upon a letter of instruction within fourteen (14) days with the husband to meet the costs of same in the first instance and the wife to reimburse the husband one half of those costs at the time of the making of final orders herein.
That the husband do provide to the wife within fourteen (14) days copies of any partnership agreement or joint venture agreement between Tuohy Family Trust and the entity or entities controlled by Mr H currently trading as B Pty Ltd.
That the wife have leave to amend her Application within twenty eight (28) days.
That the husband have leave to amend his Response within a further twenty eight (28) days thereafter.
That paragraph 16 of the interim orders sought in the wife’s Response be adjourned to 8 December 2017 at 2.15pm(1 hour allowed).
That the balance of the interim proceedings be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tuohy & Touhy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2667 of 2017
| Mr Tuohy |
Applicant
And
| Ms Tuohy |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed 30 June 2017, Mr Tuohy (“the husband”) sought parenting orders in respect of J born in 2001, K born in 2003, L born in 2005 and M born in 2008 (“the children”).
By Response filed 24 July 2017, Ms Tuohy (“the wife”) sought orders in respect of both children and property settlement.
On 8 August 2017, Judge Cole in the Federal Circuit Court made detailed orders by consent until further order which dealt with children and financial issues and transferred the balance of the proceedings to the Family Court of Australia in the following terms:-
[18]This matter be transferred to the Family Court of Australia at Adelaide for directions on a date to be fixed in relation to paragraphs 15, 16, 17 and 18 of the interim orders sought in the wife’s Response to Initiating Application filed herein on 24 July 2017 NOTING that there may be a dispute as to whether the payments referred to in paragraph 17(a) of this Order are to be $8,000 per month or $2,000 per week.
It is necessary to set out paragraph 17 of the orders to give context to the balance of the argument:-
[17]That during the period of the adjournment the husband do pay or cause to be paid (and all arrears thereof):-
a.The sum of $8,000 per month, payable in four instalments of $2,000 per week;
b.The mortgage payments and outgoings on the [D Town] property;
c.The lease payments on the wife’s motor vehicle;
d.Private health insurance premiums and any gap expenses not covered by medical benefits for the wife and the children;
e.The children’s private school fees, fixed charges, books and uniforms;
f.The children’s swimming lesson costs and other sporting memberships, sporting equipment and competition entry fees.
The outstanding issues arising from paragraphs 15, 16, 17 and 18 of the interim orders in the wife’s Response are summarised as follows:-
(1)Payment of urgent spousal maintenance by the husband to the wife at the rate of $15,000 per month and that the husband continue to pay:-
(a)The mortgage repayments and all outgoings in respect of the D Town property;
(b)The wife’s monthly rental accommodation at N Street, Suburb O;
(c)Al payments and other costs and expenses including but not limited to registration and insurance on the wife’s German motor vehicle;
(d)All medical benefit insurance premiums and all gap expenses relating to the wife and the children;
(e)All rates and taxes and outgoings in relation to the Suburb O property.
(2)That in addition to or in the alternative to paragraph 1 the husband pay the wife by way of partial property settlement the sum of $250,000 with the classification of such sum to be determined by the Trial Judge;
(3)That within seven days the wife receive a “dollar for dollar” amount equal to that paid by the husband to his solicitors both matrimonial and commercial and to his accountants;
(4)In respect of property valuations:-
(a)Mr P of P Forensic do value the “[B] Group” and all other entities associated;
(b)That Mr E be appointed to value the real estate being the Suburb O property, the D Town property and any other real estate of the B Group;
(c)That Mr F of F Valuation Services be appointed to value all personal goods and chattels, jewellery, the husband’s personal wine collection, motor vehicle and other equipment with the husband to pay for such valuations at first instance and the wife to reimburse the husband for her one half share upon settlement.
As noted, there is still a residual argument as to whether paragraph 17a of Orders made on 8 August 2017 should be read as representing an amount of $8,000 per (calendar) month or $2,000 per week.
BACKGROUND
The husband is the managing director of B Group. The wife undertook the role of homemaker.
The parties commenced their relationship in 1998, married in 2003 and separated on 7 May 2017.
The wife and children do not reside in the former matrimonial home. Upon separation the wife and children moved into rental accommodation in close proximity to the former matrimonial home.
The parties have been in dispute since separation as to the extent of financial support by the husband to the wife and for the children.
The property of the parties appears extensive and in particular the focus is upon the interests that the parties hold in the B Group of Companies via Q Pty Ltd as trustee for the Tuohy Family Trust (“TFT”).
TFT holds 50 percent of B with entities owned by an unrelated party Mr H.
The broad financial arrangement is that TFT receives about $26,875 from the B Group per month. That money is then available at the discretion of the trustee for distribution to the beneficiaries predominantly being the husband and the wife, although there has been a distribution of some contention to the husband’s mother.
ISSUES REMAINING
The parties have agreed the following:-
(1)That they will jointly instruct single experts to value the real estate of the parties, their personal possessions and adornments together with furniture and effects and the husband’s wine collection.
(2)That the husband will do all that he can to provide to the wife a copy of a valuation of the B Group business presently being undertaken by Mr H for purposes other than the litigation between the parties.
(3)That the wife’s application for partial settlement of property in the sum of $250,000 is listed for hearing on the 8th day of December 2017.
(4)If available the husband will provide to the wife within 14 days copies of the partnership and/or joint venture agreement between TFT and the relevant entity or entities controlled by Mr H currently trading as B Pty Ltd.
The parties are not agreed as to the following orders made 8 August 2017:-
(1)Whether paragraph 17 should be varied to reflect that the obligation on the husband is pursuant to s 77 of the Family Law Act 1975 (Cth) (“the Act”) or whether it should remain as currently drafted but by consent to reflect that it is an order until further order.
(2)Whether 17(a) should be amended to reflect that the husband’s obligation is $8,000 per calendar month or $2,000 per week which would increase the monthly figure to $8,667 per calendar month.
THE ARGUMENT
The current order requires the husband to “pay or cause to be paid” (and all arrears thereof) the various obligations being paragraphs 17(a) to (f) inclusive of the orders made 8 August 2017. It is not controversial that the only source of money available to the husband to make the necessary payments is via the income of the TFT.
The trustee has not yet determined how the payments are to be made. If it is to be by way of a distribution to the wife from the trust, then the husband acknowledges that he will indemnify the wife of any personal income tax arising from such a distribution noting that the monies paid from the B Group to the trust are by way of fully franked dividends.
If the order is to be categorised as an order by way of spousal maintenance whether it be urgent or otherwise then logically the trustee would have to determine that there be a distribution in favour of the husband sufficient to enable any order for spousal maintenance and other related obligations is paid. There may well be a legitimate taxation advantage to the parties in any benefit being paid to the wife as being represented by a distribution to her rather than a payment of spousal maintenance.
As presently drafted, the current order provides at his election for the husband to pay or cause to be paid the specified amounts to the wife.
I do not consider that there is any advantage to the parties at this stage categorising monies that should be received by the wife or on her behalf as spousal maintenance. If the wife is entitled by way of reasonable expectation to a distribution then it would not be proper to consider an order for spousal maintenance if the wife is able to support herself.
The order is required because the trustee company is controlled by the husband in his capacity as sole director and shareholder.
The interpretation of paragraph 17(a) of the order is a little more problematic. The notation in paragraph 18 of the order clearly acknowledges that at the time the order was made there was a dispute which was not able to be resolved.
I am not told of the issues that confounded counsel or his Honour on 8 August 2017.
In Langford & Coleman (1993) FLC 92-346 Nygh J said at 79-671 as follows:-
…there is clear authority for the proposition that at least in matrimonial causes once any financial agreement reached between the parties is embodied in consent orders, it is to these orders alone that the Court must look. The Court cannot take into account whatever agreement might or might not have been reached between the parties which led to the making of the consent orders, and the authority for that proposition is found in the opinion of the Privy Council on appeal from Hong Kong in de Lasala v de Lasala [1980] AC 546 at 560, where Lord Diplock said:
“Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order.”
In Hughes & Hughes [2013] FamCAFC 146 the Full Court said:-
[29] …the construction of any provision in a document requires consideration of a document as a whole…
[30]Thus, in Yunghanns & Yunghanns (1999) FLC 92-836 at [142] the Full Court of this court held that a specific order contained in a suite of consent orders:
…must be construed in the context of the other orders also contained in the consent order of that date, and in the light of proceedings of which they were the culmination and of the parties thereto.
In its current form the current order is difficult to understand. If it was the intention of the parties and the Court that the sum of $8,000 per month was to reflect a calendar month payment then it would have said so. What was set out was the weekly payment of $2,000 per week. It would seem a difficult concept to impose an obligation of $8,000 per calendar month which is payable in four instalments of $2,000 per week where in some months there is more than 28 days.
The plain reading of 17(a) is not that it should be a payment per calendar month but rather, a payment of $8,000 per four week month with the consequence that in a calendar year there would be 13 monthly payments of $8,000 per month.
I propose to so order.
The current order makes a provision in 17(e) and (f) for the payment of fees relating to the children’s school tuition and extra-curricular activities. There is no child support assessment, nor has either of the parties made application for same.
There is no jurisdiction for such an order to be made notwithstanding that there is a preparedness of the part of the husband to make the necessary payments.
I propose to include the husband’s stated intention as a notation to the order rather than there be an order to do so.
I make orders as appear at the commencement of these reasons.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 25 September 2017.
Associate:
Date: 22 September 2017
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