Watson and Watson (No 2)

[2009] FamCA 1085

FAMILY COURT OF AUSTRALIA

WATSON & WATSON (NO. 2) [2009] FamCA 1085

FAMILY LAW – PROPERTY – Interim

APPLICANT: Ms Watson

RESPONDENT: Mr Watson

FILE NUMBER: MLC 5375 of 2009

DATE DELIVERED: 4 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 4 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Vohra

SOLICITOR FOR THE APPLICANT: Maeve O’Brien & Associates

COUNSEL FOR THE RESPONDENT: Mr Mawson

SOLICITOR FOR THE RESPONDENT: Webb Korfiatis

Orders

IT IS ORDERED

UNTIL FURTHER ORDER

1. The Husband pay or cause to be paid the following amounts:

(a)    all instalments as and when these fall due for Experien personal overdraft secured against the real property situate at and known as S property ("the Former Matrimonial Home");

(b)    all arrears currently due and all future amounts of the shortfall between the rental received and the mortgage payments due with Experien for the real property situate at and known as N property, ACT ("the Investment Property");

(c)    the water rates, council rates, sewage charges, insurances, land tax and any owner's corporation fees for the Former Matrimonial Home and the Investment Property as and when these fall due;

(d)    that upon being provided with the accounts by the Wife and in a timely fashion before these fall due for the Former Matrimonial Home the following:-

(i)     the reasonable landline telephone number and the Wife's mobile telephone bills;

(ii)    utilities including gas, electricity, heating fuel and water usage;

(iii)   the internet account with Optus;

NOT BY CONSENT

(e)    the maintenance, insurance, registration and petrol, upon provision of receipts, for the Wife's Chrysler Voyager motor vehicle;

BY CONSENT

(f)     private health insurance for the Wife and the children at the current level of cover, and ambulance cover;

(g)    the Wife's life insurance premiums with Tower Life Insurance as and when these fall due.

NOT BY CONSENT

1. By way of periodic spousal maintenance the Husband pay to the Wife the sum of $1,550.00 per week into a bank account nominated by the Wife and to commence on Friday 6 November 2009 and weekly thereafter.

BY CONSENT

1. The Husband pay all school fees and school expenses and for any extra curricular activities, including but not limited to ballet and Auskick, for the children L, M and R. 

1. That all payments by the Husband pursuant to these Orders be credited as 100% against any Child Support Assessment.

1. All other interim financial applications be otherwise dismissed but the application for a property settlement be adjourned to 16 December 2009 before the Honourable Justice Dessau.

1. Transcript of Reasons for Judgement given this day shall be prepared and retained on the Court file.

IT IS NOTED that publication of this judgment under the pseudonym Watson & Watson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5375 of 2009

MS WATSON

Applicant

And

MR WATSON

Respondent

REASONS FOR JUDGMENT

1. The parties agreed interim parenting orders earlier today.  That leaves a question of interim spousal maintenance, much of which is also agreed. 

2. The husband practices a profession.  The parties separated earlier this year in January.  Whilst married, the wife worked in the husband’s practice.  He drew a salary of $240,000 per annum.  She drew a salary of $220,000 per annum.  She no longer works in the practice.  He says that she has not been replaced and did not work as significantly as claimed by her.  If he is correct, then his income was to a greater or lesser extent simply split with her.  In combination they were receiving about $460,000 per annum, as well as some relatively modest distributions. 

3. The property case will be dealt with in due course.  Between the business and the parties’ real estate, they appear to have reasonably substantial wealth to be divided.  It is agreed that until then the husband will continue to make a number of payments, being instalments as and when they fall due over the former matrimonial home in which the wife and the parties’ two young children live (and in which L, the husband’s son from a previous marriage, also spends time).  The instalments cover a personal overdraft secured against the property.  He will continue to pay the arrears currently due and all future amounts of the shortfall between rent received and the mortgage repayments due on an investment property in Canberra.  He will pay the water rates, council rates, sewerage charges, insurances, and tax and any body corporate fees for both of the properties. 

4. He will pay other outgoings on the former matrimonial home including reasonable landline telephone expenses and the wife’s mobile telephone bills, utilities including gas, electricity, heating fuel, and water, and the internet account.  He will pay maintenance, insurance, registration, and petrol for the wife’s motor vehicle, private health insurance for the wife and the children at the current level of cover, and ambulance cover as well as the wife’s life insurance premiums when they fall due.  He will also pay the children’s school fees and expenses including for all extra-curricular activities.

5. The only two issues for me relate first, to payments in relation to a Toyota HiLux utility motor vehicle that is kept at the former matrimonial home and secondly, periodic spousal maintenance. 

6. Section 72 of the Family Law Act deals with spousal maintenance.  The fact that the wife is presently not in work and not able to support herself, and therefore has the need for support, at least for interim purposes, is conceded.  The reasonableness of the amount of her claim is not.  Nor is the husband’s capacity to pay at the rate claimed by her. 

7. I can deal swiftly with the issue of this Toyota HiLux motor vehicle.  It is agreed that the husband will fully maintain a motor vehicle for the wife.  I am not satisfied that this spare car requires maintenance given it was suggested on behalf of the wife that the only use of it now is in fact to “give it a run” or “keep it turning over”.  It is extremely insignificant in the scheme of things and I propose deleting it from the orders.

8. Let me deal then with the bigger issue of the periodic spousal maintenance.  There is a child support assessment for the children in the sum of $550 per week.  The parties agree that the husband will pay it directly to the wife.  He currently pays a total of $1000 per week.  That means that of that sum, he is paying $450 for the wife.  She claims $2500, again including the children’s amount, that is, $1950 spousal maintenance.  He says he will now pay $650 per week for the wife, which with the $550 for the children would amount to $1200 per week.  Mr Brown, Senior Counsel for the wife, says that his principal argument is that the wife’s sole expenses, as set out in her financial statement, show a need of $650 being required to meet her remaining expenses.

9. I do not find that is in fact the case.  There is a further sum in excess of $1250 per week that is not apportioned across the wife and the children in her financial statement.  It is hard to discern how items such as household supplies, repairs, fares and car parking fees, holidays, chemist expenses, repairs, and dry cleaning, for example, should be apportioned.  Doing the best that I can, without a great deal of assistance, I would probably reckon that it would be fair to apportion about half of those expenses to the wife’s needs.  She is one adult, there are otherwise two small children, and L on a visiting basis in the household.

10. There was no major argument for the husband, by way of the submissions put on his behalf, to suggest undue extravagance on the wife’s part.  The parties have obviously lived a very good lifestyle.  Their relatively modest overdraft over their home appears to relate to a specific loan to the wife’s sister and for some specific renovations undertaken by them, rather than to fund a lifestyle that they could not afford. 

11. If the husband pays the agreed sums, they total about $200,000 per annum.  If he pays in addition $550 per week as assessed for the children plus $1275 for the wife, which would be the amount on the basis that I just outlined, it would be a total of $1825 or just under $95,000 per annum.  Accordingly, he would be paying almost $295,000 per annum. 

12. On the figures I have been given the parties were drawing, as I have noted, salaries totalling about $460,000 gross.  Some payments they made were tax deductible but it is fair to assume that once tax was paid the balance was not more than about $300,000.  In addition they took a distribution, presumably after tax, of about $40,000. 

13. When parties separate some things may need to give, in terms of lifestyle.  I must and most certainly have and will take into account the lifestyle that the parties enjoyed.  Both parties are entitled to live in dignity. 

14. It is hard for me to discern precise figures on an interim hearing on the basis of the brief submissions that I can receive.  I am concerned that if the wife receives the full amount of $1,275 that I have reckoned, over and above the payments the husband is already supporting, and the child support, it is beyond what can reasonably be supported by him on the figures.

15. Doing the best that I can I propose allowing $1000 to the wife on top of the $540 child support and other payments.  If the wife feels aggrieved that until the property settlement her lifestyle is not maintained as previously, the husband too is likely to feel some aggrievement that he must find something like $280,000-odd before supporting his new separate household.  As I said, on an interim basis that is doing the best that I can with the material I have been given. 

    ORDERS DELIVERED

16. All other interim financial applications are otherwise dismissed but the application for a property settlement is adjourned to 16 December 2009 before me with the parenting issues.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:  Alison Power

Date: