VANIN & VANIN

[2011] FamCA 545

FAMILY COURT OF AUSTRALIA

VANIN & VANIN [2011] FamCA 545

FAMILY LAW - CHILDREN - Allegations of violence in an interim hearing – father seeks week about interim arrangement – mother proposes significant and substantial time with the children – considerations that lead to a conclusion that the mother’s proposal is in the children’s best interest

FAMILY LAW - SPOUSAL MAINTENANCE - Where the husband has control over significant assets - where the true nature of the husband's income cannot be assessed at interim stage - where the wife's expenditure outweighs her income – order made as sought by wife

FAMILY LAW - CHILD SUPPORT - interim departure order made  

Family Law Act 1975 (Cth)
Child Support (Assessment) Act

APPLICANT: Mr Vanin

RESPONDENT: Ms Vanin

FILE NUMBER: SYC 618 of 2011

DATE DELIVERED: 13 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 10 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Mr Millhouse

SOLICITOR FOR THE RESPONDENT: Julie A Orsini Solicitors

Orders

PENDING FURTHER ORDER:

1. The father and wife shall each have shared parental responsibility for all major long term decisions in relation to the children, N born … November 2003, S born … April 2002 and C born … November 2003 (“the children”), such major long term issues to include:

   1.1.The children’s education;

   1.2.The children’s religious and cultural upbringing;

   1.3.The children’s health;

   1.4.The children’s names; and

   1.5.Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the other parent.

2. Each parent have responsibility for making decisions about day to day matters when the children are living with each of them respectively.

3. The children live with the wife.

4. The children spend time with the father as follows:

   4.1.Each alternate weekend commencing after school on Friday afternoon and ending once the children arrive at school on Monday morning, the first weekend to be the next weekend that would have taken place pursuant to order 4 made 10 May 2011;

   4.2.Each Wednesday afternoon commencing at the end of the school day and ending at 8pm that evening, whereupon the father will return the children to the wife’s home;

   4.3.In relation to C, each Friday afternoon, not being a Friday to which order 4.1 relates, commencing at the end of the school day and ending at 8pm that evening, whereupon the father will return C to the wife’s home;

   4.4.In relation to N and S each Monday afternoon, not being a Monday to which order 4.1 relates, commencing at the end of the school day and ending at 8pm that evening, whereupon the father will return the children to the wife’s home;

   4.5.Half of each school holidays, and failing agreement, the first half of the school holidays; and

   4.6.Any other such times as may be agreed between the parties.

5. Notwithstanding order 4, the children will spend time with the parties on special days as follows:

   5.1.On the father’s birthday and Father’s Day with the father, if the children would not otherwise be spending time with the father that day, from after school until 8pm that evening if it is a school day, or from 10am until 8pm if it is a weekend, and the wife is to deliver and collect the children.

   5.2.On the wife’s birthday and Mother’s Day with the wife, if the children would not otherwise be spending time with the wife that day, from after school until 8pm that evening, or from 10am until 8pm if it is a weekend, and the husband is to deliver and collect the children.

   5.3.On each of the children’s birthdays, all three children will spend time with the parent with whom they are not otherwise living on that day, from 4pm until 6pm if the birthday falls on a school night, or 12pm until 6pm if it falls on a weekend. The parent with whom the children are not ordinarily spending time will be responsible for their delivery and return.

6. The wife is to facilitate the children communicating with the husband by telephone on Tuesday and Thursday evenings between 7pm and 7:30pm and the children may call the husband at any other time they wish

7. Both the husband and wife be restrained from:

   7.1.Denigrating the other parent to or within hearing of the children or allowing another person to do so;

   7.2.Discussing these proceedings with the children or within their hearing, or allowing another person to do so; and

   7.3.Approaching or contacting the children, the other parent, or the other parent’s place of residence or work, at any time that the children are not in their care, save for the case of changeovers or emergencies.

8. Neither parent physically discipline the children.

9. Pending further order, the husband pay the wife spousal maintenance in the sum of $770 per week from 27 April 2011.

10. Further by way of spousal maintenance, the husband pay as they fall due, instalments in relation to any council and water rates; electricity; gas; telephone; household and home insurance; and mortgage payments in respect of the home in which the wife is currently residing, and comprehensive insurance on any motor vehicle used by the wife together with any arrears in respect of any of those accounts.

11. An order be made varying the annual rate of child support payable by the husband so that he pays child support at a rate of $42,380 per annum (or $815 per week in total for the three children).

12. Pending further order, the husband pay as and when they fall due all school and sporting fees relating to the children. 

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

It is noted that publication of this judgment under the pseudonym Vanin & Vanin is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 618 of 2011

Mr Vanin

Applicant

And

Ms Vanin

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 10 May 2011 there were four interim applications before me, involving parenting, property, maintenance and departure from administrative child support assessment. I made some orders on that day and reserved my position on children, maintenance and child support orders.

2. In relation to parenting proceedings I made a notation that a report from the family consultant would be available in the next week (it became available 8 days later) and the parties would be able to file short submissions before I made my final determination. The Children and Parents Issues Assessment was forwarded to the parties and their legal representatives on 18 May 2011. On 3 June 2011 the wife declined the opportunity to file written submissions. The husband filed his on 9 June 2011. The wife filed submissions in reply to the husband’s submissions on 23 June 2011.

DOCUMENTS RELIED UPON

1. The Husband relies on the following:

   3.1.Amended Initiating Application filed in court 9 May 2011;

   3.2.Husband’s affidavit filed 3 February 2011;

   3.3.Husband’s affidavit filed in court 9 May 2011;

   3.4.Husband’s financial statement filed in court 9 May 2011;

   3.5.Affidavit of Mr P (paternal grandmother) filed in court 9 May 2011; and

   3.6.Short Written Submissions in relation to the Children and Parents Issues Assessment, filed 9 June 2011.

2. The Wife relied on the following documents:

   4.1.Wife’s Response to Initiating Application filed 6 April 2011;

   4.2.Wife’s Applications in a Case filed 27 April 2011;

   4.3.Wife’s affidavit filed 6 April 2011;

   4.4.Wife’s affidavits both filed 22 April 2011;

   4.5.Wife’s financial statement filed 6 April 2011;

   4.6.Wife’s case summary document; and

   4.7.Wife’s reply to the husband’s written submissions, dated 23 June 2011.

3. A number of documents were also tendered as evidence and I had the benefit of an affidavit of the family consultant, Ms K, sworn 18 May 2011 and her Children and Parents Issues Assessment.

SHORT HISTORY

1. The husband was born in 1963 and is 48 years of age.

2. The wife was born in 1975 and is 36 years of age.

3. The parties married in 2000.

4. N was born in January 2001 and is 10 years old.

5. S was born in April 2002 and is 9 years old.

6. C was born in November 2003 and is 8 years old.

7. The parties separated in June 2010.

CHILDREN

Orders Sought

1. The husband seeks shared parental responsibility and a shared parenting arrangement. He seeks a week about arrangement, with the children spending time with each parent for half of each school holidays, and provisions made for special days. The husband also seeks a non-denigration order and for the parents not to discuss the proceedings with the children.

2. In her 27 April 2011 Application the wife’s position on parental responsibility is somewhat ambiguous. Her application seems to accept the husband’s position in relation to equal shared parental responsibility but goes on to ask for an order for sole parental responsibility “in relation to the daily requirements of the children”. I interpret that part of the wife’s application as meaning that she wants parental responsibility for day to day decisions during the periods of time when the children are with her. Based on that interpretation, I infer that she agrees that the husband would be responsible for making every day decisions about what the children do when they are with him. Accordingly, I proceed on the basis that there is no dispute between the parties in relation to parental responsibility. The wife agrees with the husband’s proposals for Christmas and Easter special days, but not the birthday, Mother’s Day or Father’s Day orders. She also agreed with the non-denigration orders and for the parents not to discuss the proceedings with the children.

3. The wife seeks the children live with her. She proposes telephone time with the husband and that the children spend significant and substantial time with the him, being:

   15.1.alternate weekends;

   15.2.Wednesday afternoons;

   15.3.alternate Friday afternoons for C;

   15.4.alternate Monday afternoons for the girls; and

   15.5.special days specified.

4. The wife also seeks a restraint on the husband from approaching the home or workplace except for changeovers, or from interfering with the wife or children when the children are in the wife’s care.

5. The husband alleges that he and the wife reached an agreement whereby he would spend time with the children 6 nights each fortnight. This was denied by the wife and their respective lawyers’ correspondence is annexed to the parties’ affidavits.

Considerations

1. The children should have the opportunity to experience a meaningful relationship with both their parents. This however needs to be balanced against the need to protect the children from harm. N reported to the family consultant that the husband smacks her and at one time smacked her across the chest. The wife alleges she saw the marks and called the police for advice in response. N said that before separation the husband smacked the children on the bottom and legs, sometimes would kick them, and also hit the wife (the wife said he did so once). N said that at times she has been concerned for her safety and that of her siblings, especially when required to travel in the husband’s truck without sufficient seatbelts. S also reported to the family consultant that her father hits her on the face and body and tells her he is “allowed to, as [she is] a grown up”. C at one time had a bruise on his back which the wife claims was a result of the husband’s discipline and the husband says was a result of C’s play time. I note the police report relating to this incident says C reported it was from his father smacking him, but the police concluded that it was a lawful chastisement and that the wife was probably trying to cause grief for the husband after his misguided AVO against her.

2. There is alleged family violence in the past. The issues that are alleged to still exist that will need to be determined in the future at a final hearing relate to the wife and husband’s verbal attacks on each other and the nature and level of the husband’s discipline of the children.

3. At one point the husband applied for an AVO against the wife, in the presence of C, for an incident which CCTV demonstrated did not occur as the husband described. Counsel for the wife said this goes to the husband’s credit, reflects poorly on the husband’s ability to facilitate C’s relationship with the wife and demonstrates that the husband was willing to cause distress to C. The husband said the wife also made an unsupported application for an AVO which was dismissed.

4. The wife said that C’s teachers have complained to her about his aggressive, violent and distracted behaviour. The wife said she has noticed that C has shown aggressive, disruptive and disrespectful behaviour after he has spent extended time with his husband.

5. The wife has described threatening and stalking behaviour by the husband. She recalls times the husband has turned up to the shop she ran and the police had to be called, as well as noticing him driving by the house continuously and waiting for C in the school grounds.

6. The husband denies any allegations of physical violence perpetrated by him against the wife. He also denies allegations of excessive physical violence perpetrated by him against the children in the form of discipline, and said both parents physically discipline the children. He denied hitting the children in the face or on the head. The husband alleges that the children told him the wife hit, punched and scratched C, and slapped the children on the face. 

7. All three children reported threatening behaviour in the husband’s household at the hands of the paternal grandfather, who on one occasion reportedly threatened C with a knife when he would not behave. The husband denies this.

8. Despite the evidence of excessive discipline which the children have reported to the family consultant, I note the wife does not seek any order preventing physical discipline or other safeguards, but seems to record it as being relevant to the husband’s parenting capacity and to show the husband has difficulty controlling the children. I am sufficiently concerned with what is in the untested material to make an order, pending further order, that neither parent physically discipline the children. There are other ways the children can be disciplined if and when that is necessary. All issues about family violence and excessive physical discipline will no doubt be explored further in the final hearing and I am unable to make any findings about those issues in this hearing. 

9. The husband says that C has expressed views that he wanted to spend more time with the husband. The wife records the children, including C, expressing their desire to come home to her when they were spending time with the husband. C told the family consultant that he wished for the time with his husband to be “more fun” and said he preferred to stay with the wife more of the time. The husband claimed in his affidavit that C told him he had lied to the family consultant. He also submits that the children have on occasion been reluctant to return to the wife’s care.

10. N reported to the family consultant a very strong relationship with her mother and said that when her mother is hurt, she also feels the pain. The consultant noted the children were emotionally closer to the wife. There is no mention of the nature of their relationships with the husband in the family consultant’s report. It seems from the wife’s affidavit, the husband’s affidavit material and the family consultant’s report, that the husband spends more time with C than he does the girls. There also seems to be some acknowledgment from the wife and the girls in their conversations with the family consultant that C is more affected by the current situation due to his stronger relationship with the husband than the other children.

11. The children reportedly often spend time with the paternal grandparents when they are with the husband. I am unable to assess the nature of the relationship between the children and their paternal grandparents. There is untested evidence that the children have reported threatening behaviour from the paternal grandfather in the past. The children expressed the belief that when the husband moves to his new home, that his girlfriend will move in, but I have no information about their relationship with her. The husband said he is not currently living with his partner.

12. The family consultant notes that both parents are supportive of the other parent’s role in the children’s lives. That being said, both the girls reported to the consultant that the husband and paternal grandfather make nasty comments to the children about the wife. Both the wife and husband report the other parent making inappropriate comments to the children and in their presence. The husband contends that the wife discourages his relationship with the children, making his time with them erratic. He said the wife has also coached the children to make false allegations to the family consultant.

13. The family consultant expressed concern that the husband did not have a significant understanding of the effect the parental conflict could have on the children. The husband disputes this and said the allegations caught him off-guard.

14. The children are currently living with their mother and spending time with their father on an ad hoc basis. The children are confused with the ad hoc nature of their regime. The parents blame this on each other. The wife says the husband terminates visits early, doesn’t arrive for the commencement of some visits, demands the children on days when it was not planned that they would be with him and has removed and retained children without agreement. The husband says the wife determines the time he may spend with them which is at short notice and erratic. The husband accepts the children have been adversely affected by the ad hoc nature of spending time with each parent. He said a consistent routine has been in place since my orders of 10 May 2011 and the children are benefiting from that. The family consultant noted that a structured approach was necessary for the children and the children would benefit from “predictable and consistent parenting, which is based on a predictable pattern of moving between their parents [sic] respective homes”.

15. The parents do not live a significant distance apart. The husband worked long hours in the past and the wife said he will again, though it seems the husband has cut down on his hours recently (which the wife said was a strategy to minimise his support payments). The basic difficulties in the children spending time with each parent are the willingness of the parents to commit to a routine and the management of changeovers without conflict. When the children are with their mother, they have the familiarity of living in the former matrimonial home.

16. The children described to the family consultant the respective parenting styles of their mother and father in very different terms. All three children describe the wife as calm, loving and supportive. I note she was close to completing her training in child care soon after she was married. In contrast, all three children describe the husband as an angry, aggressive and dismissive parent. The wife agrees that those words accurately describe her experience of the husband during the marriage. The wife details two alleged incidents where the husband took the children to the police as a lesson when they were naughty, relating to the refusal to wear a seatbelt and kicking a ball inside.

1. The husband’s attitude to parenting is something the wife highlights as a major issue. The wife contends that during the marriage the husband was the primary earner in the relationship and worked long hours, leaving the wife to do the lion’s share of the parenting. The husband said he contributed equally to the parenting of the children, which was assisted by the flexibility of his work. I note the family consultant said it appears the husband was removed from the children’s day-to-day life, but the husband denies this. The wife alleges that the husband is not committed to parenting,  giving a great amount of detail in her affidavit material about the instances where the husband brought the children back to her early (implying that his capacity to cope with the children on those occasions had been exhausted), and at times when he said he could not control them. She also listed times she said he spent time with C but not the girls; times he failed to take advantage of proposed time that he may spend with them; and times where he left the children unattended. C and the wife both report that the husband has turned up at C’s school at various occasions to see him, causing distress. The wife said the husband has been heavily reliant on the paternal grandparents, who are elderly, lacking English language skills, and who he has now moved away from. In contrast the husband said the wife is dictating his time with the children, which is insufficient. He denies repeatedly leaving the children in the care of the grandparents.  I note that the wife is proposing time which fulfils the necessary requirements for it to be substantial and significant. The attitude of the parents to the children’s care will no doubt be a major issue in the final hearing.

2. In relation to the difference the husband spends with each of the children, the wife describes the husband’s elevated interest in C over the girls, which has a lot to do with their shared interest in football. The wife contends that the husband is pushing C too hard in his football, and that his commitments are onerous, causing him to be tired and irritable and to struggle at school. The wife described how the favouritism could be seen in not only in the time the husband spent with the girls as opposed to C, but also the occasion when he bought C a motorbike for his birthday and bought N nothing for hers.

3. The family consultant has fears about the husband’s ability to parent the children given that:

   36.1.there are reports of violence used in discipline;

   36.2.that he will not have the same support from his parents when he moves out from their home; and

   36.3.the lack of previous responsibility in caring for all three children simultaneously.

4. The husband says he is able to financially provide for the children, while providing them with a more than adequate family home, and being available for them due to his flexible work hours. The wife says she is able to provide the same, while alleging that the husband has attempted to undermine her financial support of the children by:

   37.1.Cancelling her American Express card, which was reportedly where all family expenses were paid from, (and statements were exhibited which seem to support that contention);

   37.2.Misinforming the Child Support Agency (see below);

   37.3.Removing the wife’s car;

   37.4.Forwarding household bills to the wife who is now unable to pay; and

   37.5.Withdrawing money from the children’s accounts.

Conclusions

1. I will order the shared parental responsibility that both parties have agreed to and give day-to-day responsibility to each parent with whom the children are then spending time.

2. Given that I have ordered shared parental responsibility, I must consider whether the children should spend equal time with each parent. The children clearly have not had an appropriate amount of stability since the parents’ separation. C’s behaviour has been seen to decline. Given the husband’s alleged lack of adherence to agreement about his time with the children, in addition to his parenting style described by the children and his lack of experience in handling all three children at once without the help of the paternal grandparents, I believe it to be in the children’s best interests that they spend more time with the wife rather than an equal shared arrangement. It is an advantage to the children to have the wife’s home as a base, being the home in which the children grew up. The children should remain primarily with their mother who has been their primary caregiver with whom they have a close emotional attachment. Her continuation in that role, will, at least in the short term, create a sense of predictability and continuity for the children.

3. The lack of the ability of the parents at the current time to be able to effectively communicate also mitigates against an equal time arrangement being reasonably practicable.

4. I next need to consider whether the children can spend substantial and significant time with the husband. That is what the wife proposes. The wife’s proposals give the children a chance to spend time with their father on weekends, holidays, and during the school week, so that he may share in all aspects of their lives. The scheme the wife has prescribed also gives the husband the chance to ease into the parenting role, where not all three children spend time with him on every occasion. Allowing the husband to ease into this role may be advantageous if the reports by the children of alleged aggression by their father turn out to be accurate.

5. Accordingly, I find it is in the children’s best interests to make orders in the terms of the wife’s proposal.

6. The wife makes complaint about the husband’s behaviour and those complaints are untested. However, given that I have ordered substantial and significant time for the children with the husband, I do not see why I should not order the husband to cease approaching or contacting the wife or children at other times. At least until the matters can be properly heard, I have been given no reason why this would be onerous for the husband and such, an order is consistent with there being a regime that creates more consistency in the children’s lives.

7. The wife makes no proposal for the children to see their father on the children’s birthdays, Father’s Day or the husband’s birthday. Consistently with making an order for substantial and significant time, I will make an order the children spend time with both their parents on specific days.  For the children’s birthdays, I will make an order following the husband’s proposed order 3.6.

8. I will also make a mutual non-denigration order.

9. The changeovers will be aimed at minimising the interaction of the wife and husband, which it is reported are often distasteful.

10. The wife wanted A/Prof Q appointed as a single expert to provide a report to the court in respect to issues relating to the children. Given where the matter is in the list of cases awaiting allocation to a judge, that application is premature.

SPOUSAL MAINTENANCE AND CHILD SUPPORT

1. The wife, in an application in a case filed 27 April 2011, sought interim orders for financial support in the following terms:

   1.That the father pay spousal maintenance to the mother in a sum of $1500.00 per week commencing from the date of these orders.

   2.That the father pay back spousal maintenance to the mother calculated at $1500.00 per week commencing from 5 June 2010 and to the date of these orders.

   3.That the father pay child support to the mother in a sum of $450.00 per week per child.

   4.That the father pay back child support to the mother calculated at $1350.00 per week from 5 June 2010 to 5 September 2010 and thereafter $900.00 per week from 5 September 2010 to the date of these orders.

   5.That in the alternative to orders 1 & 3, the father pay spousal maintenance to the mother in the sum of $2,850.00 per week from the date of these orders.

   6.That, in the alternative to orders 2 and 4, the father pay back spousal maintenance to the mother in the sum of $2,850.00 per week from 5 September 2010 to the date of these orders.

   7.That until final order, the father forthwith pay as and when they fall due, all council rates, water rates, electricity and gas accounts, mortgage instalments, telephone and domestic telecommunications accounts, and all other expenses relating to the matrimonial home and the matrimonial properties.

   8.That until final order, the father pay as and when they fall due all school and sporting fees relating to the children.

   9.That until final order, the father pay forthwith and as and when they fall due, all comprehensive insurance premiums for the matrimonial properties and including contents insurance in relation to the matrimonial properties and including contents insurance in relation to the matrimonial home and comprehensive insurance for any motor vehicle used by the mother and children.

Spousal maintenance

1. The wife has no reported income derived from employment. Although she nearly completed her studies in child care, the wife would need to return to finish her studies and then gain experience. She has not been in the child care profession for almost the whole duration of her marriage, in circumstances where the wife says this is what was expected of her by the husband. Her only experience is a short stint as an employee in an unskilled position and running a small hospitality business called ‘Business 1’ that she says became unprofitable and which the wife says has now been transferred to another operator.

2. The husband says the wife owns the property on which Business 1 is run, so must either be receiving rental from the new owners or income from the business itself. The wife explicitly denies that she is receiving any income from that source or is likely to do so in the short to medium term.

3. The wife says she has no computer skills. She does not receive any government benefits.

4. The wife made mostly non-financial contributions to the family over a ten year marriage, with the husband making the majority of the financial contributions. The wife contends that the husband cancelled her credit card from which she funded herself and the children, refuses to assist with household debts, and confiscated the wife’s car. The wife’s application for an order for an interim property adjustment has been adjourned to a date yet to be fixed. The wife is presently also unable to properly fund her litigation, which, due to the nature of the asset pool, is likely to be of some complexity.

5. The wife says she is now able to purchase only the necessities, and they are in excess of the income she receives from the husband by way of child support. The husband pays $450 a week child support (the wife’s only income) while the wife’s expenses as detailed in her financial statement are in the sum of $1,584.50 per week ($51.50 in item 22 and $1,533 in item 60). Of those expenses, the wife identifies $815 as being referrable to the children with the balance of $769.50 referrable to herself. The payments for the children do not include private school fees or sporting fees. The wife’s expenses do not include insurance premiums for the matrimonial property, including contents insurance in relation to the matrimonial home and comprehensive insurance for any motor vehicle used by the wife. Given the wife’s previous lifestyle, I do not find that any of the expenses that she has claimed are excessive. I conclude that the wife has demonstrated her need to receive spousal maintenance in the sum of $770.

6. The wife alleges that the husband is receiving rental income from their investment properties in the sum of $9,000 per week, and is overseeing a $12 million asset pool, to which she has no access. The husband had not filed a financial statement until the court proceedings of 9 May 2011. The husband reports his rental income is $3,032 per week, with an additional business income of $1,500 per week. He records that his expenses are in excess of his income at $6,953 per week, with the majority paid on mortgage repayments of $4,073 a week, which he said is loaned from his parents. He puts his personal expenses at $2,661 a week and the children’s at $4,292 a week. He records his assets to be worth $7,160,700 and liabilities at $3,157,000, but the property at Suburb 1 is only half held by him as is the property at V Street, Suburb 2, with the other half being held by the wife. The wife’s interest in those two properties on the husband’s valuation would add another $2,450,000 to the pool. The wife’s liability according to the husband in relation to the home mortgage is $975,000. Overall therefore on the husband’s calculation, the parties’ net worth is approximately $5,500,000 today.

7. The husband’s financial statement would tend to indicate that the company Business 2 is not currently trading. That company is trustee for a family trust. The husband asserts that he is earning $300 per week by way of his own personal exertion and receives $1,200 per week by way of rent from the trust in respect of the property at H Street, Suburb 3.

8. The husband did not present to the court any current or historic records in relation to the trading of the company and I have no real idea about its value or the husband’s involvement in it, from the material that he has filed.

9. There seems to be a disconnect between what the husband is asserting in his current financial statement and the history of the parties’ lifestyle and their acquisition of assets. The wife asserts that the parties led a high lifestyle, residing in unencumbered homes in Suburb 1 and having the children at private schools (which they still currently attend). The parties travelled overseas on extended holidays, purchased a holiday home in Europe (which they still have), paid cash for a new Mercedes, ate out and purchased designer clothes.

10. The parties accumulated considerable wealth in real estate.  Cash was held in part in the children’s bank accounts.

11. The wife had the use of a credit card during the time the parties were together and she used that credit card without restriction to maintain the home, the family and the lifestyle which she, the children and the husband were living.

12. At the time of separation and without notice to the wife, the wife says that all access to credit cards and financial support was terminated and her Mercedes motor vehicle was removed.

13. The wife says the husband has accessed the cash in the children’s bank accounts.

14. The wife tendered the husband’s personal and business accounts to show that the husband’s spending is inconsistent with the financial circumstances set out in his material. This includes regular deposits of $10,000 into the business account (which the husband denies is the alter ego of himself) and large expenses. The wife also exhibited a letter in relation to a loan application, where the husband lists his income as $250,000 a year. The husband points out that the wife has recorded her income on this same document as $190,000 a year which either goes to her credit or her earning potential, although I infer that it is common ground that the wife was not providing value through personal exertion for that level of income at that time. The loan application gives some general indication that the parties represented to the bank at that time that their gross earnings through the husband’s business activities were in the approximate sum of $440,000 per annum. These figures are only of some limited value. They are historical (2006). The same loan application document indicates that the net worth of the parties at that time was about $6,000,000. 

15. The husband has asserted in his financial statement that he expends monies on behalf of the children in the sum of $4,292 per week. That assertion needs to be modified by noting that $2,712 of that amount is monies the husband is paying by way of mortgage payments and a further $450 is the amount the husband is currently giving the wife for the children. In addition, the husband is paying education expenses including fees and levies for the children in the sum of $575 per week.

16. On the basis of the material that has been presented (and as I have pointed out it is incomplete and I am aware that it is untested), I find that the husband has the capacity to pay the amount that the wife claims she needs on a weekly basis both for herself and the children. That amount on an overall basis is in the sum of $1,585 per week ($770 for the wife and the balance for the children).

17. Accordingly, by way of periodic spousal maintenance, the husband shall, pending further order, pay to the wife the sum of $770 on a weekly basis from the date the wife filed her application.

18. I note that that finding is made upon the understanding that the husband will continue to be responsible for the payment of council, water, electricity, gas, telephone and mortgage accounts and household and home insurance and comprehensive insurance on the wife’s motor vehicle. Part of the spousal maintenance order I make will incorporate that understanding.

Child support

1. The wife seeks a departure order as set out earlier in these reasons. Her primary application is that the husband pay to the wife $450 per child per week (a total sum for the children of $1,350 per week). The wife also seeks the husband pay the council, water, electricity, gas, telephone and mortgage accounts until the final hearing, as well as school fees and household and home insurance.

2. The wife contends that the husband misinformed the child support agency to bring about a lower child support payment which currently stands at $450 per week.

3. Section 116 Child Support (Assessment) Act (“CSAA”) provides that the wife in the circumstances of this case may apply for a departure order, notwithstanding she has not involved herself in the normal review process, if special circumstances exist and the court is satisfied that it would be in the interests of the parties for the court to deal with that application. I find that the pre-requisite special circumstances referred to in s 116 CSAA exist in this case.

4. When making a departure order, the court has to be satisfied that one or more of the grounds of departure exist, the orders sought are just and equitable as regards to the child and the parties, and that the order is otherwise proper.

5. I am satisfied in this case that s 117(2)(c)(ia) CSAA is enlivened by the circumstances of this case. I refer to the comments that I have made above in relation to conclusions about the husband’s property and financial resources (based on the limited and untested material I have).

6. The wife said the $450 per week she receives is insufficient and barely covers groceries and petrol. The wife said she has been unable to take the children to the dentist and in the past has had to organise for medication to be provided on credit until she received her next child support payment. She says she has not been able to take the children on outings as they are used to doing, or to buy them new clothes. She has been unable to continue their tutoring and cannot provide them with internet access. Twice she said she has had to access the children’s bank accounts for special occasions she has not been able to pay for, and she notes the husband too has accessed the children’s bank accounts, withdrawing $7,000 from C’s bank account and $10,000 from each of the girls’ bank accounts.

7. I have already referred to the wife’s evidence setting out her need in relation to expenses for the children in the sum of $815 per week (see paragraph 53). I conclude the wife has demonstrated a need to receive child support in the sum of $815 per week.

8. I am mindful of the husband’s property and financial resources. I find that the husband has the capacity to pay a periodic sum of $815 per week in addition to the other commitments referred to in these reasons.

9. I conclude that it would be just and equitable for the wife to receive and the husband to pay the amount the wife’s financial statement indicates she needs; namely the sum of $815 per week.  I find that an order that the husband pay that amount to the wife on a weekly basis for the children is otherwise proper. 

1. I note that the weekly amount the husband pays for the children is assessed on the basis that the husband will continue to meet the children’s private school, tuition and sporting fees. Taking into account matters to which I have referred already, I find it is just and equitable and otherwise proper, to make an order to this effect pursuant to s 124 CSAA.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 13 July 2011

Associate: 

Date:  13 July 2011