Welton and Welton

[2013] FamCA 373

FAMILY COURT OF AUSTRALIA

WELTON & WELTON [2013] FamCA 373

FAMILY LAW ─ SPOUSAL MAINTENANCE ─ Where the wife submitted that she did not have the capacity to support herself from her earnings ─ Where there was no evidence of what income the wife might be able to earn as a self employed trainer in the event that she set herself up in that employment ─ Where the Court found that the wife met the threshold test in s 72 of the Family Law Act (1975) (Cth)  and was unable to support herself by employment ─ Husband ordered to make weekly payments to the wife by way of spousal maintenance

FAMILY LAW ─ CHILD SUPPORT ─ Application for departure and variation of child maintenance orders ─ Where the children attend private school ─ Where the husband opposed the making of a departure order ─ Where the Court accepted that it was appropriate to make a departure order in circumstances where the husband’s income substantially exceeded the limit of that which was taken into account in relation to child support ─ Where the father’s income and assets were found to be sufficient to merit the payment of child support in addition to the school fees ─ Departure order made and the amount of child support to be paid by the husband varied

Family Law Act 1975 (Cth) s 72

APPLICANT: Ms Welton

RESPONDENT: Mr Welton

FILE NUMBER: SYC 5241 of 2012

DATE DELIVERED: 20 May 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thomas

SOLICITOR FOR THE APPLICANT: Newnhams Solicitors

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Bell Lawyers

ORDERS

IT IS ORDERED BY CONSENT
PENDING FURTHER ORDER:

1. That the husband shall be and hereby is by injunction restrained from:

   (a)Doing any act or thing including executing any document or giving any direction to any person which would cause the sale, assignment, mortgaging or the further encumbering of, or allowing the husband to in any way deal with his interest in the properties at … B Street, Suburb C (‘the B Street property’) and … D Street, Town E (‘the D Street property’) other than in accordance with these orders.

   (b)Using the net sale proceeds of the sale of … F Street, Town G for any purpose other than reducing the Flexiplus line of credit which is secured over the B Street property.

   (c)From further drawing down or withdrawing in any way funds from any accounts secured by mortgage or line of credit (including the Flexiplus line of credit referred to above) over the B Street property or the D Street property.

   (d)At the same time as the husband complies with the provisions of order (b) above, he will do all acts and things and sign all deeds and instruments necessary to cause the limit of the Flexiplus line of credit to be REDUCED to the amount outstanding to the National Australia Bank after payment in of the proceeds of sale of … F Street, Town G.

   (e)The husband agrees to, and hereby creates, an equitable charge in favour of the wife the duration of which and amount shall be equal to the dollar value of the wife’s property claim or amount of any unsatisfied property orders made by this court.

   (f)The husband is hereby restrained from making any application by his servants and agents for removal of any caveat that the wife may lodge on the B Street property as a consequence of the equitable charge created in order (e) hereof.

   (g)The husband will within 24 hours of the production of the sealed orders serve a copy of the sealed orders on the bank issuing the Flexiplus line of credit.

NOTATION

(h)The husband warrants that the Flexiplus line of credit is with the National Australia Bank, Suburb H branch.

IT IS ORDERED

1. That the husband pay to the wife the sum of $350 per week by way of spousal maintenance such monies to be paid to the wife commencing Friday 24 May 2013 and weekly thereafter.

2. That by way of departure order the amount of child support to be paid by the husband be varied and the amount is fixed at $535.28 per week.

3. That in the undertaking of the husband IT IS NOTED that he will continue to pay the children’s tuition fees at School J.

4. That pursuant to Section 68L(2) an independent children’s lawyer be appointed on behalf of the children K (female) born … November 2001 and L (female) born … September 2003 AND IT IS REQUESTED that Legal Aid Commission of New South Wales arrange such separate representation.

5. That forthwith upon appointment by the said Legal Aid Commission of New South Wales or otherwise the independent children’s lawyer file a Notice of Address for Service.

6. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

7. That upon their appointment, and after filing of an Address for Service, the independent children’s lawyer may inspect and, if permitted, copy all documents previously produced to the court in the proceedings and released to the parties.

8. That the husband’s application for interim parenting orders is otherwise stood over to the Judicial Duty List at 9.30 am on 22 July 2013.

9. That the costs of both parties in relation to today’s proceedings are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Welton & Welton 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 5241 of 2012

Ms Welton

Applicant

And

Mr Welton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before the Court is an application for spousal maintenance and a variation of child support. There are also applications for injunctive relief which were resolved and in which orders will be made by consent. The applicant, Ms Welton (“the wife”) commenced cohabitation with the respondent Mr Welton (“the husband”) in 1997 and they married in 2001. They have two children, K aged 12 years and L aged 9 years. The children attend a private school as they did while their parents were together.

2. In 2011 the parents separated and the children remained living with the wife who has since been their primary carer.

3. In relation to the application for spousal maintenance, the wife submits that she satisfies the threshold test in s 72 of the Family Law Act (1975) (Cth) in that she does not have the capacity to support herself from her earnings. Her present earnings are approximately $85 per week working in a casual capacity. 

4. The husband’s case is that the wife has completed a course to qualify as a trainer and that she should use the amount of money which she has in the bank in order to buy the necessary equipment. The difficulty I have with the husband’s submission is that there is no evidence of what income the wife might be able to earn as a self employed trainer in the event that she set herself up in that employment.   

5. Further, in relation to the husband’s submission, it is not reasonable, in my view, that the wife should spend in excess of $30,000 to acquire the necessary equipment, from the sum of $58,434, which is the whole of the capital that she has. I accept the submission of counsel for the wife that it is appropriate that she be able to use those funds for the payment of her legal fees and any extraordinary expenses in relation to the children.

6. Therefore, I find that the wife has met the threshold test and that she is unable to support herself by employment. I accept the submission of counsel for the wife that I should not take into account the fact that she has a capital sum available to her.

7. In terms of the wife’s needs, she seeks the payment of $350 per week. Her calculation of that amount is not seriously challenged by counsel for the husband and properly so. 

8. The husband, in terms of capacity to pay, lives in a de facto relationship with a partner who earns $2,500 per week. She therefore has the capacity, firstly, to provide for the support of her own children and secondly, to make a contribution to their joint household expenses. 

9. More significantly however, the husband has liquid assets, in cash and shares, in excess of $426,000 and thus the husband’s capacity to pay is well established. 

10. In relation to child support, the husband opposes the making of a departure order. I note that the husband has given undertakings to the court, through his counsel, that he will continue to pay the children’s school fees in the sum of approximately $22,000 per annum. I accept the submission of counsel for the wife that the choice to send the children to private schools was made on the basis of the family’s wealth, although that wealth is in part made up from inheritances of the husband. However, in circumstances where the husband’s income substantially exceeds the limit of that which is taken into account in relation to child support, I accept that it is appropriate to make a departure order.

11. The father’s income and assets, in my view, are sufficient to merit the payment of child support in addition to the school fees. The amount which is sought to be paid by way of child support is $535.28 per week for both children, in addition to the school fees. That amount is also not seriously challenged in terms of the children’s needs and, in fact, it is substantially less than that which the wife deposes to be their reasonable needs.

12. The orders which I propose to make will require the husband to pay $350 per week by way of spousal maintenance and $535.28 by way of periodic payment for child support, in addition to the school fees. That amount, on my calculation, requires a total payment by the husband of $68,134 per annum. 

13. I am comforted that this is an appropriate amount by the evidence of the husband in his affidavit to the effect that he paid $115,000 in 20 months for the support of the wife and the children as voluntary payments. On my calculation, that comes to $5,750 a week or $69,000 per annum, which is approximately the amount which I intend to order him to pay. 

14. I am further comforted by the fact that when the husband sells the property at F Street, Town G he will save approximately $800 per week in mortgage payments and those moneys will be available for payment of the spousal maintenance and child support.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 May 2013.

Associate:  K

Date: 28.05.2013