West and Morris

[2008] FamCA 59

FAMILY COURT OF AUSTRALIA

WEST & MORRIS [2008] FamCA 59

FAMILY LAW – SPOUSAL MAINTENANCE - Interim

Family Law Act 1975 (Cth)

Williamson and Williamson (1978) FLC 90-505 (Full Court)
Chapman and Chapman (1979) FLC 90-671
Ashton and Ashton (1982) FLC 91-285

APPLICANT: Ms West

RESPONDENT: Mr Morris

FILE NUMBER: SYC 6326 of 2007

DATE DELIVERED: 4 February 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: O'Ryan J

HEARING DATE: 1 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Connor

SOLICITOR FOR THE APPLICANT: The Argyle Partnership

COUNSEL FOR THE RESPONDENT: Mr Broun of Queens Counsel

SOLICITOR FOR THE RESPONDENT: Andrew Cohen Solicitor

Orders

1.The applications filed on behalf of the Husband on 2 November 2007 and 12 November 2007 for a review of the orders made on 9 October 2007 for urgent maintenance be dismissed.

2.The return date of the application in a case filed on 9 November 2007 on behalf of the Wife for costs and interim spouse maintenance namely 11 February 2008 be vacated and such application be listed before the Judicial Registrar on 25 February 2008.

3.The return date of the application in a case filed on 9 November 2007 on behalf of the Wife for departure from an administrative assessment of child support payable by the Husband namely 11 February 2008 be vacated and such application be listed before the Judicial Registrar on 25 February 2008.

4.Any further applications for final orders or applications in a case filed on or before 25 February 2008 be listed before the Judicial Registrar on 25 February 2008.

5.The parties will each file in court on 25 February 2008 a costs memorandum in accordance with the Family Law Rules.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Ryan delivered this day will for all publication and reporting purposes be referred to as West & Morris

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6326   of 2007

Ms West

Applicant

And

Mr Morris

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1.Before me for hearing is an application for review of an order made by a Judicial Registrar pursuant to s 77 Family Law Act 1975 (Cth) for urgent spouse maintenance. The Applicant is the Husband. The Respondent is the Wife.

2.There are pending proceedings for settlement of property which are listed for hearing before Rose J.

BACKGROUND

3.The Husband was born in November 1954 and the Wife was born in September 1979.  The Husband is approximately 25 years older than the Wife.  The parties commenced cohabitation on 10 May 2004 and were married in November 2004.  The parties separated on 10 April 2007.

4.There is one child of the relationship born in February 2006.  The child is aged about 20 months.  There are currently no parenting orders.

5.The Husband has four other children from at least two other relationships namely S born in March 1980; J born in April 1984; A born in April 1991 and L born in April 1998.  The child A resides in Sydney with his mother.  The child L resides in P with his mother.

6.On 10 September 2007 an application for final orders was filed on behalf of the Wife.  The Wife seeks a property settlement, once the Husband has made financial disclosure, of 50 per cent of the “net matrimonial pool of assets”.  As well the Wife seeks spousal maintenance in the sum of $1,800 per week.  This application will have to be amended.

7.On 10 September 2007 an application in a case was filed on behalf of the Wife and she sought that pending further order by way of urgent spousal maintenance the Husband pay her the sum of $1,800 per week and lease payments in respect of her motor vehicle.  The Wife also sought an order that the Husband provide to his accountants instructions to prepare taxation returns for the financial years ended 30 June 2006 and 30 June 2007 for the Husband, R International Pty Ltd, P Company Pty Ltd, S Pty Ltd, M Communication Pty Ltd and Morris Industries Pty Ltd.

8.On 25 September 2007 a response to an application for final orders was filed on behalf of the Husband.  The Husband sought an order that by way of property settlement he pay to the Wife within 28 days the sum of $150,000.  He also sought an order that each party be solely entitled to the exclusion of the other to all other property of whatsoever nature in the possession of the party at the date of the orders.  I assume that the Husband opposes the application by the Wife for spouse maintenance.

9.On 25 September 2007 a response to an application in a case was filed on behalf of the Husband and he sought an order that he pay to the Wife by way of periodic spousal maintenance a sum of $450 per week up to and including 13 November 2007.

10.The proceedings came before Judicial Registrar Johnston on 25 September 2007 and on that occasion he was asked to hear the Wife’s application for urgent maintenance.  However, because of other commitments, the Judicial Registrar adjourned the hearing of the application to 9 October 2007.  I have before me a copy of the transcript of proceedings of the hearing on 25 September 2007 and it reveals that counsel for the Husband informed the Judicial Registrar that there was “no issue about” the Husband’s capacity to meet the orders sought.  The admission is that there is no issue about the capacity of the Husband to pay the Wife the sum of $1,800 per week and lease payments in respect of the Wife’s motor vehicle. 

11.Then on 9 October 2007 Judicial Registrar Johnston heard and determined the application for urgent maintenance.  The Judicial Registrar made the following orders,

1.The Husband pay to the Wife by way of urgent spousal maintenance the following:

1.1    The sum of $1,400 per week.

1.2    Lease payments in respect of the Wife’s motor vehicle

and the period over which this is to be paid is as from 25 September 2007 to continue until 25 January 2008.

2.The interim spousal maintenance proceedings be adjourned to the Judicial Registrar’s Duty List callover at 9.30 am on 25 February 2008.

3.The parties attend a Financial Conciliation Conference at 9.15 am on 17 December 2007.

4.All costs be reserved.

12.On 19 October 2007 an application in a case was filed on behalf of the Husband and he sought orders in relation to exclusive occupation of the former matrimonial home at E and office premises at J.  The Husband also sought an injunction with respect to the Wife attending and removing items from the office and the former matrimonial home.  I gather that orders were made on 24 and 25 October 2007 by Judicial Registrar Loughnan disposing of this application

13.On 2 November 2007 an application in a case was filed on behalf of the Husband and he sought that orders 1 and 4 made on 9 October 2007 be set aside.  It is this application that I am currently dealing with.

14.On 9 November 2007 an application in a case was filed on behalf of the Wife and she sought that the Husband pay her a sum of $100,000 to assist her to defray her costs of the applications for final orders.  As well the Wife sought that by way of interim spousal maintenance as and from 25 January 2008 the Husband pay a periodic amount of $1,800 per week and the lease payments with respect to the Wife’s motor vehicle and in the alternative he pay a lump sum amount of $46,800.  This application is currently returnable on 11 February 2008.

15.On 9 November 2007 an application was filed on behalf of the Wife in which she sought pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) that there be a departure from the administrative assessment of child support payable by the Husband and that for the period of 20 August 2007 to 19 November 2008 the annual rate of support be set at $41,600 being the equivalent of $800 per week. This application is returnable on 11 February 2008.

16.On 12 November 2007 an amended application in a case was filed on behalf of the Husband.  In this application the Husband still sought a discharge of orders 1 and 4 made on 9 October 2007.  However pending further order he sought that such orders be stayed and other orders I need not repeat in these reasons.  This amended application in a case was made returnable before me on 1 February 2007 although I assume it meant 1 February 2008.

17.I was told by counsel for the Wife that the Husband has made certain payments to the Wife on 16, 23 and 30 October 2007 of a total of either $8,400 or $18,400.

18.On 11 January 2008 the Husband travelled to the United States.

19.I was informed by senior counsel for the Husband that the Husband proposes to shortly file an application in which he will seek final and interim parenting orders.  I was informed by senior counsel for the Husband that the Husband proposes that the child of the marriage ordinarily reside with him.  I was also informed by senior counsel of the Husband that a Registrar recently made an order striking out certain subpoena to produce documents issued on behalf of the Husband and that the Husband may seek to review the decision of the Registrar.

20.    In relation to the present proceedings the Wife relied upon affidavits she swore on 10 September 2007 and a financial statement she swore on the same date.  As well the Wife relied on an affidavit sworn by her father on 4 October 2007.

21.So far as the Husband is concerned he relied upon a financial statement which he swore on 24 September 2007 and this was the only evidence on behalf of the Husband that was before the Judicial Registrar on 9 October 2007.  However, before me the Husband sought to rely upon an affidavit that he swore on 13 December 2007.  As well there was handed up to me at the commencement of the hearing an affidavit sworn by the Husband on 1 February 2008 which was described as his “parenting affidavit” and an affidavit sworn by the Husband sworn on 1 February 2007 in which he gave evidence as to what he described as a substantial change in the Wife’s circumstances since the orders of 9 October 2007.

22.I was informed and accept that the applications for property settlement and ordinary spousal maintenance are listed before Rose J and that the first day of the hearing is 1 May 2008.

RELEVANT PRINCIPLES-MAINTENANCE

23.As I said in a recent judgment there are three types of maintenance orders appropriately recognised by the Family Law Act. The first type of order is pursuant to s 77 of the Act for urgent maintenance. The second is for what is called interim maintenance where the court is asked to exercise the jurisdiction and power in ss 72, 74, 75(2) and 80(1)(h) making an order pending the disposal of proceedings or until further. The third type of order has been described as ordinary maintenance where the court is asked to exercise the jurisdiction and power in ss 72, 74, 75(2) and 80(1)(h) making a permanent order.

24.If the application is for urgent maintenance then the hearing may be dealt with in a very summary way, without examination of the parties and on such evidence as is to hand.  In Williamson and Williamson (1978) FLC 90-505 (Full Court) Fogarty J said at 77,650 that the application is determined “…on a rather pragmatic basis without any real hearing upon the merits” and in Chapman and Chapman (1979) FLC 90-671 his Honour at 78,570 said that there are somewhat “ad hoc procedures” necessarily involved: see also Ashton and Ashton (1982) FLC 91-285 per Nygh J.. Section 77 serves the purpose of an order being made where the Court is unable to determine immediately what order should be made.

CONCLUSION

25.The Husband contends that the orders should be discharged because the Wife’s circumstances have significantly changed.  He contends that as a result of a report, including a DVD movie, which he obtained from L Investigations dated 28 December 2007, and other information, the Wife is now residing in Hong Kong with a Mr B.  In fact the Husband suggested in his affidavit of 1 February 2008 that he has a number of reports from L Investigations.

26.Counsel for the Wife informed me that the Wife is now residing in Hong Kong and will shortly file an affidavit explaining her position.  However I was told that the Wife is still in need of assistance for her support.

27.In this case the only evidence the Husband put before the Judicial Registrar was his Financial Statement of 24 September 2007.  In this document he contended that he has a total average weekly income of $4,386 being rental income of $2,770 and expense payment of $1,616.  However the Husband also contended that he has weekly expenditure of $8,388 being a weekly deficiency of $4,002.  The amount of $8,388 does not include any amount for living expenses.  He gave no evidence explaining how he meets the deficiency.  The Husband also contended that he has property interests of a value of $7,158,160 and superannuation interests of a value of $130,000 being a total of $7,288,160.  The Husband contended that he has liabilities of $4,035,000.  I have no doubt that there will have to be considerable investigation of the Husband’s financial circumstances.  However, it is of no concern to what I have to decide because of the admission given on 25 September 2007about capacity of the Husband to pay.

28.Then the relevant order was made on 9 October 2007.  The Wife relied upon an affidavit she swore on 10 September 2007, a Financial Statement she swore on 10 September 2007 and an affidavit sworn by her father on 4 October 2007.

29.The Husband then filed an application for review on 2 November 2007.  No further evidence was filed by the Husband until his 59 page affidavit of 13 December 2007.  I am of the view that this affidavit is not relevant to the application for review but perhaps the application by the Wife for costs.  I note that the Husband, without leave, gave evidence in reply to an affidavit sworn by the Wife on 9 November 2007.  Then at the commencement of the hearing before me senior counsel for the Husband filed affidavits the Husband has recently sworn in the United States and these are the affidavits now relied upon.

30.The order made by the Judicial Registrar expired on 25 January 2008.  As I understand the evidence of the Husband in his parenting affidavit filed in court, at the commencement of the hearing before me the Wife went to Hong Kong in January 2008.  This evidence is only relevant as to whether I should make a further order for urgent maintenance. 

31.This litigation is troublesome and as I raised in discussion with senior counsel for the Husband I have difficulty in understanding the utility of it all.  The Husband is prepared to pay to the Wife by way of property settlement a sum of $150,000 and depending on the outcome of the yet to be commenced parenting proceedings, and the true extent and value of the financial circumstances of the Husband, the amount the Husband has to pay may be considerably more.  When I raised this possibility with senior counsel for the Husband his response was that the Husband may file an amended application seeking that he pay a lesser amount to the Wife.  

32.The amount ordered by the Judicial Registrar for the period 25 September 2007 to 25 January 2008, being a period of approximately 19 weeks, is a total of $26,600.  The Husband has already paid at least $8,400 and perhaps considerably more.

33.There is no issue about the Husband’s capacity to pay.  In my view at the time of the making of the order the evidence clearly established that the Wife had a need for urgent maintenance.  Having considered the evidence that was before the Judicial Registrar I have no doubt that it was within his discretion to make the orders he made.  Thus the application for review will fail.  In fact in my view it should not have been filed.

34.As to the application by the Wife for a continuation of the urgent order until the hearing of the application for interim maintenance filed on 9 November 2007 I am not prepared to make an order.  Counsel for the Wife conceded that there is no evidence currently before the Court as to the financial circumstances of the Wife in Hong Kong.

35.As I indicated in discussion I am going to make some orders by way of case management in relation to the outstanding applications in a case and the foreshadowed further applications.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate: 

Date:  4 February 2008