Agarwal & Gara
[2021] FCCA 1057
•18 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Agarwal & Gara [2021] FCCA 1057
File number(s): MLC 8985 of 2020 Judgment of: HER HONOUR JUDGE C. E. KIRTON QC Date of judgment: 18 May 2021 Catchwords: FAMILY LAW – Interim spousal maintenance – where the Wife seeks that the Husband pay her spousal maintenance – where the Wife is unable to support herself adequately – where the Wife has the full-time care of the parties’ two young children – where the Husband has the capacity to pay – wilful non-disclosure of Husband’s financial circumstances – where Husband found to have access to cash and financial resources – where Husband has under declared business income – where Husband has unilaterally withdrawn significant sums of money from the matrimonial asset pool – consideration of s.75(2) factors – orders for wife to receive periodic spousal maintenance pending final hearing – appropriateness of orders for retrospective spousal maintenance – orders made for retrospective spousal maintenance. Legislation: Family Law Act 1975 (Cth) ss 44, 72, 74, 75, 77, 79, 80
Federal Circuit Court Rules2001 (Cth) r 5.03Cases cited: Ashton & Ashton (1982) FLC 91-285
Baber & Baber (1980) FLC 90-901
Bevan & Bevan (1995) FLC 92-600
Brown & Brown [2007] FamCA 151; (2007) FLC 93-316
Eliades & Eliades (1981) FLC 91-022
Hall & Hall (2016) 257 CLR 490; (2016) FLC 93-709
In the Marriage of Astbury (1978) 34 FLR 173
In the Marriage of Beck (No. 2) [1983] FLC 91-318
In the Marriage of Bevan (1994) 19 Fam LR 35
In the Marriage of Burton [1979] FLC 90-610
In the Marriage of Evans (1978) 30 FLR 566
In the Marriage of Ferguson (1978) 34 FLR 342
In the Marriage of Gamble (1978) 32 FLR 198
In the Marriage of Kajewski (1978) 31 FLR 500
In the Marriage of Nutting (1978) 30 FLR 555
In the Marriage of Soblusky (1976) 28 FLR 81
Kiesinger & Padget [2008] FamCAFC 23
Malcolm & Malcolm (1977) FLC 90-220
Milankov & Milankov (2002) 28 FamLR 514; (2002) FLC 93-095
Mitchell & Mitchell (1995) FLC 92-601
Murkin & Murkin [1980] FLC 90-806
Noble & Noble [2014] FCCA 421Number of paragraphs: 153 Date of last submission/s: 4 February 2021 Date of hearing: 4 February 2021 Place: Melbourne Solicitor for the Applicant: Zenith Lawyers & Consultants Solicitor for the Respondent: Joshi Lawyers ORDERS
MLC 8985 of 2020 BETWEEN: MS AGARWAL
Applicant
AND: MR GARA
Respondent
ORDER MADE BY:
HER HONOUR JUDGE C. E. KIRTON QC
DATE OF ORDER:
18 MAY 2021
THE COURT ORDERS THAT:
1.The Respondent Husband shall pay to the Applicant Wife by way of interim spousal maintenance:
(a)The sum of $6,225 within 7 days of the date of these Orders; and
(b)Until further Order, commencing on 21 May 2021 the sum of $415 per week, with such payments to be made each Friday by direct deposit to the Applicant Wife’s nominated bank account.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Agarwal & Gara is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C. E. KIRTON QC:
INTRODUCTION
This is an application for spousal maintenance brought by the Applicant Wife (Wife) against the Respondent Husband (Husband).
These proceedings concern both parenting and property matters, and were commenced upon the Wife filing an Initiating Application on 18 August 2020 (Initiating Application) seeking both interim and final property orders.[1] Prior to the Husband engaging in these proceedings, the Wife also filed an Amended Initiating Application on 12 September 2020 (Amended Initiating Application) amending the interim property orders she sought.[2]
[1] Initiating Application, filed 18.08.20 (Initiating Application).
[2] Amended Initiating Application, filed 12.09.20 (Amended Initiating Application).
Parenting matters were introduced upon the Husband filing his Response to Initiating Application on 18 November 2020 (Response), wherein he sought interim and final parenting orders.[3] The Wife filed a Further Amended Initiating Application on 23 December 2020 responding to parenting matters (Further Amended Initiating Application).[4] This proceeding is listed for Final Hearing on 2 December 2021, with an estimated hearing time of two days.[5]
[3] Response, filed 18.11.20 (Response).
[4] Further Amended Initiating Application, filed 23.12.20 (Further Amended Initiating Application).
[5] 26 November 2020 Orders, Order [2].
ISSUES TO BE DETERMINED
This interim hearing involves the Wife’s application for an order that the Husband pay her $600 a week by way of spousal maintenance.[6]
[6] Further Amended Initiating Application, Interim or procedural orders sought, Property, Order [1].
SYNOPSIS
I have determined that the Husband shall pay the Wife interim spousal maintenance:
(a)In the sum of $6,225 within 7 days of the date of the Court’s Orders; and
(b)Until further Order, commencing on 21 May 2021 the sum of $415 per week, with such payments to be made each Friday by direct deposit to the Wife’s nominated bank account.
BACKGROUND
Both parties were born in India, the Husband having being born in 1982 and the Wife having been born in 1985. They are aged 39 and 35 respectively. The parties married overseas in 2010.[7]
[7] Wife’s Affidavit, not witnessed, filed 18.08.20 (Wife’s 18 August 2020 Affidavit), [4].
The Husband arrived in Australia in 2006 on a student visa, and was followed by the Wife in 2010 when she relocated to Australia. The parties together obtained permanent residency in 2013 and were both granted Australian Citizenship in 2015.[8]
[8] Wife’s 18 August 2020 Affidavit, [4]-[5]. Husband’s Affidavit, sworn and filed 18.11.20 (Husband’s 18 November 2020 Affidavit), [6]-[7].
The Wife has deposed that when she arrived in Australia in 2010 the Husband was working in casual employment and had no savings and no assets in his name.[9] The Husband has deposed that at that time he had savings of $20,000 to $25,000 in his account.[10] The parties otherwise had no other assets of significance at the commencement of their relationship.[11]
[9] Wife’s 18 August 2020 Affidavit, [5].
[10] Husband’s 18 November 2020 Affidavit, [9].
[11] Wife’s 18 August 2020 Affidavit, [21].
The Husband and Wife separated on 25 February 2020. There are two children of the marriage, a daughter X aged 8, having been born in 2013, and a son Y aged 4, having been born in 2016 (together, the Children). Since separation the Children have resided with the Wife.
PROCEDURAL HISTORY
This proceeding first came before me in the Duty List on 26 November 2020, following a transfer from the Discrete Property List on 24 November 2020, upon hearing before a Deputy Registrar of this Court.[12] Both parties were then represented by their Solicitors.
[12] 24 November 2020 Orders.
The Amended Initiating Application sought interim property orders, which may be summarised as follows:
(a)The Husband be restrained from disposing of, encumbering or otherwise dealing with:
(i)B Pty Ltd;
(ii)C Pty Ltd (sub-paragraphs (i) and (ii) together referred to as the Husband’s Business Interests);
(iii)Motor vehicles (including any trucks) in the name of the Husband or any entity in which the Husband has an interest;
(iv)Any other entities, businesses or assets in the name of the Husband or the Wife, or in which the parties (or either of them) have an interest in;
(b)Within 28 days the Husband make full and frank financial disclosure in accordance with Part 24 of the Federal Circuit Court Rules2001 (Cth) (Rules);
(c)The Wife have sole use and occupation of the former matrimonial home situate at and known as D Street, Suburb E in the State of Victoria, (D Street, Suburb E Property) to the exclusion of the Husband;
(d)The Husband be restrained from removing any furniture and/or furnishings from the D Street, Suburb E Property;
(e)A non-molestation order with respect to the Wife and the Children; and
(f)The Husband pay to the Wife the sum of $600 per week by way of spousal maintenance.[13]
[13] Amended Initiating Application, Interim or procedural orders sought, Orders [1] - [8].
The Amended Initiating Application sought final property orders that there be a just and equitable division of the assets and liabilities of the parties, inclusive of superannuation, pursuant to s.79 of the Family Law Act 1975 (Cth) (Act).[14]
[14] Amended Initiating Application, Final orders sought, [1].
The Wife did not file any further affidavit material in support of her Amended Initiating Application, and instead relied upon her first Affidavit filed in these proceedings on 18 August 2020 (Wife’s 18 August 2020 Affidavit)[15] and her Financial Statement filed the same date (Wife’s Financial Statement).[16]
[15] Wife’s 18 August 2020 Affidavit.
[16] Wife’s Financial Statement, not witnessed, filed 18.08.20 (Wife’s Financial Statement).
The Husband’s interim application for property orders in his Response[17] sought the following interim orders, which may be summarised as follows:
(a)Within 60 days, the D Street, Suburb E Property be sold at a price agreed between the parties and failing such agreement, as advised by a valuer nominated by the President of the Real Estate Institute of Victoria;
(b)Pending the sale, the Wife have sole use and occupancy of the D Street, Suburb E Property, and be liable for, and indemnify the Husband against all rates, outgoings and mortgage repayments in respect of the D Street, Suburb E Property;
(c)The Husband and Wife be restrained from further encumbering the D Street, Suburb E Property, without the consent in writing of the other party first obtained;
(d)The Husband’s Business Interests be valued by an independent valuer;
(e)The Wife deliver the Motor Vehicle 1 (Registration ...) (Motor Vehicle 1) to the Husband; and
(f)The Wife deliver to the Husband personal items identified in a list annexed to the Husband’s Affidavit, filed on 18 November 2020 (Husband’s 18 November 2020 Affidavit).[18]
[17] Response, Interim or procedural orders sought by you the respondent, Orders [19]-[23].
[18] Husband’s 18 November 2020 Affidavit.
In the Response the Husband did not particularise his claim for final property orders, seeking merely that there be a just and equitable division pursuant to s.79 of the Act, to be determined by the Court. The Husband also sought interim and final parenting orders.
The Husband also a filed Financial Statement on 18 November 2020 (Husband’s Financial Statement) [19] in support of his Response.
[19] Husband’s Financial Statement, filed and sworn 18.11.20 (Husband’s Financial Statement).
On 26 November 2020, the Court made Orders which may be summarised as follows:[20]
(a)The matter be adjourned to 8 January 2021 for Interim Defended Hearing;
(b)The matter be listed for Final Hearing on 2 December 2021, with an estimated hearing time of two days, with accompanying orders for trial directions; and
(c)There be interim parenting and property orders, by consent (26 November 2020 Consent Orders). [21]
[20] 26 November 2020 Orders, Orders [1]-[9].
[21] 26 November 2020 Orders, Exhibit “A” Minutes of Consent, Orders [1]-[10] (26 November 2020 Consent Orders).
The 26 November 2020 Consent Orders in relation to property may be summarised as follows:
(a)Pending Final Orders, the Husband and Wife be restrained from disposing of, encumbering or otherwise dealing with any of the following assets:
(i)B Pty Ltd and C Pty Ltd;
(ii)The Motor Vehicle 1, trucks and motor vehicles in the name of the Husband or any entity the Husband has an interest in; and
(iii)Any other entities, businesses or assets in the name and/or in the possession of the parties or in which the parties have an interest in;
(b)On or before 23 December 2020:
(i)Both parties make full and frank financial disclosure in accordance with Part 24 of the Rules; and
(ii)Each party provide the other any document reasonably requested in writing to be provided within 14 days of a request;
(c)The Wife have the right to sole possession and occupation of the D Street, Suburb E Property;
(d)The Wife shall be solely responsible for the payment of all mortgage instalments, and all rates and taxes and other outgoings with respect to the D Street, Suburb E Property;
(e)If by 16 December 2020 the parties cannot agree to the value of the D Street, Suburb E Property, the parties to appoint ‘Value it’ to value the property and the parties equally share the cost of valuation;
(f)The Husband’s Business Interests be valued by ‘F, and the parties share equally the cost of such valuation; and
(g)The property and parenting matters be mediated via private mediation on or before 30 April 2020 with the parties to share equally in the cost of the mediation. The mediation to occur after the completion of financial disclosure and discovery by the parties and valuations of all assets. [22]
[22] 26 November 2020 Consent Orders, Orders [4]-[10].
On 23 December 2020 the Wife filed the Further Amended Initiating Application, and an Affidavit in support thereof (Wife’s 23 December 2020 Affidavit) [23] and a Notice of Child Abuse, Family Violence or Risk. The Further Amended Initiating Application sought interim and final parenting orders (to be mediated on or before 30 April 2020), and interim spousal maintenance in the sum of $600 per week. The interim spousal maintenance component of the Wife’s Further Amended Initiating Application was to be determined on 8 January 2021.[24]
[23] Wife’s Affidavit, not witnessed, filed 23.12.20 (Wife’s 23 December 2020 Affidavit).
[24] 26 November 2020 Orders, Order [1].
On 7 January 2021 the Wife filed a further Affidavit (Wife’s 7 January 2021 Affidavit). [25] Unfortunately on 8 January 2021, the hearing of the Wife’s application for interim spousal maintenance was unable to proceed. Two other matters were listed before me on that day – a parenting matter abridged for urgent hearing by a Deputy Registrar of this Court; and a s.44(6) application which had already been adjourned on a number of previous occasions. The s.44(6) application involved protracted examination in chief and cross-examination which continued until the close of the afternoon session. That matter was adjourned part-heard. Accordingly, I had no choice but to adjourn the Wife’s application.[26]
[25] Wife’s Affidavit, not witnessed, filed 7.1.21 (Wife’s 7 January 2021 Affidavit).
[26] 8 January 2021 Orders, Order [1].
The Husband filed a further Affidavit on 28 January 2021 (Husband’s 28 January 2021 Affidavit). [27] The Wife’s application for interim spousal maintenance came back before me on 29 January 2021. Through no fault of the Court or the parties, the hearing – yet again – was unable to proceed. On that day, the Court experienced significant technical difficulties occasioned by limited internet connectivity. As a result, the platform utilised by the Court to conduct remote hearings during the COVID-19 pandemic was unavailable. Regrettably, I was forced to adjourn the Wife’s application a second time. I determined that the matter ought to proceed in person on 4 February 2021 and made orders in those terms, subject to compliance with Victorian State Government restrictions.[28]
[27] Husband’s Affidavit, sworn and filed 28.1.21 (Husband’s 28 January 2021 Affidavit).
[28] 29 January 2021 Orders, Orders [1] and [3].
On 4 February 2021, both the Husband and the Wife were represented by their Solicitors at the Interim Defended Hearing (Interim Hearing). Both Solicitors have been involved in these proceedings since the commencement of the proceeding in August 2020. On 4 February 2021 Judgment in relation to the issue of interim spousal maintenance raised in the Further Amended Initiating Application was reserved.
EVIDENCE
Documents Relied upon by the Wife
The Wife relied upon the following documents:
(a)Further Amended Initiating Application;
(b)Wife’s 18 August 2020 Affidavit;
(c)Wife’s 7 January 2021 Affidavit; and
(d)Wife’s Financial Statement. [29]
[29] Transcript, P2:L25–P3:L6.
Due to COVID-19 restrictions, the Wife’s 18 August 2020 Affidavit, Financial Statement and the Wife’s 7 January 2021 Affidavit were signed by the Wife, but not witnessed and signed by the Wife’s Solicitor or another person authorised to do so. They were filed with the Court in accordance with the Joint Practice Direction 2: JPD of 2020 – Special Measures in response to COVID-19 Electronic filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents to Affidavits, and Fees.
Documents Relied upon by the Husband
The Husband relied upon the following documents:
(a)Husband’s 18 November 2020 Affidavit;
(b)Husband’s 28 January 2021 Affidavit; and
(c)Husband’s Financial Statement. [30]
[30] Transcript, P28:L1-20.
THE HEARING
Both the Husband and the Wife gave limited evidence and were cross-examined.
The Court has also read and reviewed the transcript of the proceedings dated 4 February 2021 (Transcript) prior to finalising these Reasons for Judgment.
One exhibit was tendered during the hearing and was marked Exhibit A1, NAB Bank Statement for C Pty Ltd, for the period 1 December 2020 to 31 December 2020.
THE LAW – SPOUSAL MAINTENANCE APPLICATIONS
Applications for spousal maintenance, whether urgent, interim or final, are governed by the provisions of Part VIII of the Act. Under s.74(1) of the Act, the Court is able to make such orders as it considers proper for the provision of maintenance in accordance with Part VIII. The various types of orders the Court may make, and the jurisdiction of the Court to make such orders as it considers appropriate are contained in s.80(1)(a) to (l) of the Act.
Section 80(1) of the Act confers power on the Court, when exercising its jurisdiction under Part VIII, to do any or all of the following:
General powers of court
(1) […]
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
(ba) order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
[…]
(k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
[…]
The Court’s power to make interim orders, or orders for a short fixed term pending the disposal of proceedings, is contained within s.80(1)(h) of the Act, which provides as follows:
(1) The Court, in exercising its powers under this Part, may do any or all of the following:
[…]
(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
The statutory liability of one spouse to maintain the other, and the entitlement of a spouse to seek maintenance from the other upon separation is contained in s.72(1) of the Act.
Section 72(1) of the Act provides that:
Right of spouse to maintenance
(1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(Emphasis added)
Section 72(1) of the Act indicates that the liability of one spouse to maintain the other, and the Court’s power to exercise its discretion under s.74(1) of the Act is contingent upon two conditions being met.[31] The first being the (a) the inability of one spouse to support himself or herself adequately by virtue of one of the reasons above; and second (b) the ability of the other spouse to reasonably maintain the former.[32] The three reasons contained in sub-s.(a) to (c) are exhaustive and the inability to support oneself must be for one of those stated reasons, which are broadly economic in nature.[33]
[31] In the Marriage of Kajewski (1978) 31 FLR 500.
[32] Ibid, 501;
[33] In the marriage of Soblusky (1976) 28 FLR 81, 99; In the marriage of Ferguson (1978) 34 FLR 342, 353-354.
In circumstances where it is neither impracticable nor possible for the Court to consider full evidence on matters relevant to ss.72(1) and 75(2), s.77 of the Act makes special provision for the Court to make an order for urgent maintenance. Such orders are made on a pragmatic basis without a detailed inquiry into the merits of the application.
Section 77 of the Act provides that:
Urgent spousal maintenance cases
Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.
Urgent and Interim Spousal Maintenance
In Ashton & Ashton,[34] Nygh J considered the differences between urgent and interim spousal maintenance as follows:
An application for interim maintenance is basically different from an application for urgent maintenance. An application under sec. 77 is heard at a time when all the evidence is not yet to hand. It may have to be made ex parte or may have to be made on such evidence as the husband is able to supply in the short period before the matter is set down for hearing. An application for interim maintenance is a creature whose exact nature has not been adequately defined but, as I understand it, differs only from an application for permanent maintenance in that the order which is sought is an order until further order.
[…]
On an application for interim maintenance, the normal procedures relating to applications for maintenance under sec.74 must be observed and an application for maintenance can only be heard after each party has had the opportunity to adduce evidence, that is to say, the normal procedure for the filing of affidavits by both parties and the filing of financial statements must be observed.[35]
[34] [1982] FLC 91-285.
[35] Ibid, 77-613, 77-614.
In Malcolm & Malcolm[36] Watson SJ described the purpose of s.77 of the Act as being: ‘to provide emergency funding in those cases where the court is unable to determine immediately what order should be made’.[37]
[36] (1977) FLC 90-220.
[37] Ibid, 76, 145.
In Baber & Baber[38] Lambert J said:
Since both parties have placed detailed particulars of their financial circumstances before the court in affidavit form, it is, in my view, inappropriate to consider the present application under the provisions of s.77 of the Family Law Act, and a determination should be made under s.72 of the Act leading either to the making of an order of an interim nature under s. 80(h) or an order refusing the application.[39]
[38] (1980) FLC 90-901.
[39] Ibid, 75, 672.
Insofar that an application for interim maintenance can only be heard after each party has had the opportunity to adduce evidence and provide detailed affidavit and financial material,[40] it is clear that the Wife’s application is for interim maintenance under s.74 of the Act.[41]
[40] Ashton & Ashton (1982) FLC 91-285.
[41] Initiating Application, Interim or procedural orders sought, Order [8]; Amended Initiating Application, Interim or procedural orders sought, Order [8]; Further Amended Initiating Application, Interim or procedural orders sought, Order [1].
Both the Husband and the Wife have filed interim and final applications, and have availed themselves of the opportunity to adduce evidence through the filing of affidavits and financial statements, including through the giving of oral evidence in Court. I further note that the Wife did not seek an urgent hearing of her application pursuant to r.5.03(f) of the Rules or advance an oral application when the matter came before the Court on 29 January 2021 and 4 February 2021. Further, the Wife’s Solicitor, in his opening submission to the Court, submitted that the Wife’s application for spousal maintenance was made pursuant to s.72 of the Act.[42] Accordingly, I will proceed to consider the Wife’s application in accordance with ss.72(1) and 74(1) of the Act and the legal principles adopted by the Courts in determining such applications.
[42] Transcript, P4: L1.
Interim Spousal Maintenance Applications
In Bevan & Bevan,[43] the Full Court of the Family Court of Australia (Full Family Court) considered the approach to be adopted when determining applications for interim spousal maintenance. Chief Justice Nicholson, Lindenmayer and McGovern JJ provided the following assessment process when exercising the discretion under s.74 of the Act:
[W]e would state the law as being that an award of spousal maintenance requires:
1.A threshold finding under s.72;
2.Consideration of s.74 and s.75(2);
3.No fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit;
4.Discretion exercised in accordance with the provisions of s.74, with “reasonableness in the circumstances” as the guiding principle. [44]
[43] (1995) FLC 92-600.
[44] Ibid, 81, 981-81,982.
Section 75(1) of the Act concerns matters to be taken into consideration in relation to spousal maintenance and states: ‘In exercising the jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2)’.
Accordingly, in deciding whether to make an order pursuant to s.74(1) of the Act and the quantum of any such order, the Court must take into account the considerations set out in sub-s.75(2), to the exclusion of all others. The list of matters in sub-s.75(2) is exhaustive, and the effect of sub-s.75(2) is to limit the wide jurisdiction conferred by s.74 to whether or not a spouse is able to support himself or herself adequately, and to adjust for any disparity between the incomes or earning capacity of parties based on their respective needs.[45]
[45] Eliades & Eliades (1981) FLC 91-022, 76, 231-2; Kiesinger & Padget [2008] FamCAFC 23, [26] – [27];
Section 75(2) of the Act provides:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Importantly, s.75(3) of the Act provides that: ‘In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit’.
This provision makes clear that the eligibility of a person to receive an income tested pension, allowance or benefit, as defined by s.4(1) of the Act, is immaterial to determining whether a person is able to support herself or himself adequately, and must be disregarded. As was stated by Nygh J in Murkin & Murkin (Murkin):
In my opinion the issue is not whether the wife is receiving sufficient funds, but whether she is able to support herself adequately, that is whether she can generate funds from her own resources or earning capacity to supply her own needs. A woman who is dependent on payments of social security benefits, voluntary payments by a former husband or by friends and relatives is not able to support herself. She has to be supported by others… The threshold test in terms of s. 72 is ability to support one’s self, not need.[46]
(Emphasis added)
[46] [1980] FLC 90-806, 75,081.
The intention and effect of s.75(3) of the Act is to remove any uncertainty as to where the responsibility to provide financial support for a separated spouse lies – the liability being upon the other spouse, and not on the public purse.[47]
[47] Noble & Noble [2014] FCCA 421, [95]
At the time the Wife’s application was heard, the Wife was in receipt of the sum of $362.00 per week from Services Australia, in the form of Family Tax Benefit A and B and the temporary Coronavirus Supplement (Coronavirus Supplement).[48] On 1 April 2021, the Coronavirus Supplement, available at the rate of $150 per fortnight, ceased – and the Wife’s payments are presumed to have reduced to her pre-existing Centrelink payments, which I have calculated to be approximately $287 per week. As indicated above, in determining whether the Wife is able to support herself adequately, this amount is to be disregarded.
[48] Wife’s 7 January 2021 Affidavit, [3]; Transcript, P44: L10-15.
I note however, that quantum of maintenance and liability to pay maintenance are two entirely separate matters – and any income tested pension, allowance or benefit received by the Wife, or the availability of financial assistance from a third party or other source, may be relevant to determining the quantum of any award of maintenance to the Wife under s.74(1) of the Act, in addition to those considerations set out in s.75(2).[49]
[49] In the Marriage of Burton [1979] FLC 90-610, 78,130-78,131; In the Marriage of Kajewski (1978) 31 FLR 500, 500-501.
Threshold Finding Under s.72(1)
As indicated above, the legislative prerequisite for a finding of liability to pay maintenance, and the ‘gateway’ to making of a spousal maintenance order under Part VIII, is that the spouse seeking maintenance must be ‘unable to support herself or himself adequately’.[50]
[50] Hall & Hall (2016) 257 CLR 490, [3]; (2016) FLC 93-709.
In considering whether a spouse is unable to support himself or herself ‘adequately’ – and in determining whether an applicant therefore meets the threshold requirement under s.72(1) of the Act – the meaning of the word ‘adequately’ has come under extensive consideration by the Court. Insofar that an applicant must establish a present inability to support themselves ‘adequately’ and thereby be entitled to be maintained ‘adequately’ – the meaning of the word is relevant to both liability and quantum.
In addition to the comments of Nygh J in Murkin, Lindenmayer J in In the Marriage of Nutting[51] commented that the term ‘adequately’ imports a standard of living which is reasonable in the circumstances’.[52] Of the circumstances to be considered, of significant relevance are: the standard of living previously enjoyed during cohabitation;[53] and the financial resources of the parties post-separation – in particular, the financial circumstances of the party from whom maintenance is sought. However, it is a question of what is objectively reasonable following an overall analysis of the facts of the particular case. What is considered ‘adequate’ in any particular case may import a standard of living that is higher or lower than that enjoyed as a single-economic unit, based on the respective needs and financial resources of the parties post-separation.
[51] In the Marriage of Nutting (1978) 30 FLR 555.
[52] In the Marriage of Nutting (1978) 30 FLR 555, 556.
[53] In the Marriage of Gamble (1978) 32 FLR 198.
In Mitchell & Mitchell,[54] the Full Family Court said in relation to the meaning of ‘adequately’ that:
[…] [T]he question whether the applicant can support herself ‘adequately’ is not to be determined by reference to any fixed or absolute standard but having regard to the matters referred to in section 75(2) […][55]
[54] Mitchell & Mitchell (1995) FLC 92-601.
[55] Mitchell & Mitchell (1995) FLC 92-601, 81,995.
Accordingly, the notion that ‘adequately’ imports a subsistence level of financial support or ‘bare bones’ standard of living has been firmly rejected.[56]
[56] In the Marriage of Evans (1978) 30 FLR 566, 568; Mitchell & Mitchell (1995) FLC 92-601, 81,995.
The Full Family Court in Brown & Brown summarised the principles relating to ‘adequate’ as they have emerged from the applicable authorities, as follows:
•The word “adequately” is not to be determined according to any fixed or absolute standard.
•The idea that “adequate” means a subsistence level has been firmly rejected.
•Where possible both spouses should continue to live after separation at the level which they previously enjoyed, if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
•In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.
•It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
•However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.[57]
[57] Brown & Brown [2007] FamCA 151, [161]; (2007) FLC 93-316, 81,455.
To determine the Wife’s application for spousal maintenance, I therefore need to consider:
(a)Whether the Wife has established that she is unable to support herself adequately for any of the reasons in s.72(1)(a), (b) or (c) of the Act;
(b)If yes, then what is the quantum of the Wife’s reasonable needs?; and
(c)The Husband’s capacity to pay – are the financial resources of the Husband sufficient to meet the Wife’s reasonable needs?
CONSIDERATION
Is the Wife Unable to Support Herself Adequately?
The first issue to be considered is whether the Wife is currently unable to support herself adequately for any of the reasons in s.72(1)(a), (b) or (c) of the Act.
In determining whether a spouse is unable to support himself or herself adequately, the Court is required to take into account not only the applicant’s income, but any capital or other financial resources or income at his or her disposal, including the financial resources of anyone who is normally a member of his or her household.[58] Where the party to maintenance proceedings is cohabiting with another person, the third person’s income and the living expenses associated with the cohabitation are to be taken into account.[59]
[58]In the Marriage of Beck (No. 2) [1983] FLC 91-318.
[59] Family Law Act 1975 (Cth) s.75(2)(m).
The Wife’s Income
The Wife is currently employed on a full-time basis as a factory worker.[60] In the Wife’s 18 August 2020 Affidavit filed in support of her Initiating Application, the Wife deposed that she receives the sum of ‘about $780 per week net’ from this employment.[61] At Part D of the Wife’s Financial Statement, the Wife lists her total weekly salary or wages as $950.00 before tax,[62] and her total income tax as $165.00,[63] which presumably includes any Medicare Levy paid by the Wife. Shortly prior to the hearing of this application, the Wife filed the Wife’s 7 January 2021 Affidavit deposing that the information contained in Part N of the Wife’s Financial Statement had changed, and that her current income and expenses are as set out in the table below: [64]
[3].
[60] Wife’s 18 August 2020 Affidavit, [10].
[61] Wife’s 18 August 2020 Affidavit, [10].
[62] Wife’s Financial Statement, Part D, [9].
[63] Wife’s Financial Statement, Part G, [19].
[64] Wife’s 7 January 2021 Affidavit, [3].
Expenses
Monthly
[….]
Income
$775 weekly
$ 3,358 per month
Centrelink
$362 weekly
$1,569 per month
(Coronavirus supplement $500 monthly that ends soon)
Total Income
Monthly
$4,927
$4,427
The Wife annexed to the Wife’s 7 January 2021 Affidavit three payslips from her employer dated 10 December 2020, 17 December 2020 and 24 December 2020 (Payslips).[65] The Payslips list the Wife’s net pay for these pay periods as being $806.00,[66] $817.00[67] and $827.00,[68] respectively.
[65] Wife’s 7 January 2021 Affidavit, Annexure “-1”, 9-11.
[66] Wife’s 7 January 2021 Affidavit, Annexure “-1”, 11.
[67] Wife’s 7 January 2021 Affidavit, Annexure “-1”, 10.
[68] Wife’s 7 January 2021 Affidavit, Annexure “-1”, 9.
When cross-examined by the Solicitor for the Husband in relation to the Wife’s income, the Wife gave evidence that she occasionally works ‘one or two hours extra’ each day, and that she receives overtime at a rate of time-and-a-half of her usual hourly rate in the sum of $25.00.[69] The Wife, however, gave evidence that for the previous two months, she has not been receiving any extra work[70] and that she currently works from 8:00 am to 4:00 pm.[71]
[69] Transcript, P9:L20; Wife’s 7 January Affidavit, Annexure “-1”, 9-11.
[70] Transcript, P9:L14.
[71] Transcript, P9:L25.
In final submissions, the Solicitor for the Wife sought to clarify the differences in the Wife’s weekly income, submitting that the Wife’s income is $49,400.00 per annum and that this ‘[…] should be reflected in the annexure to her 7 January affidavit’.[72] The Wife’s Solicitor directed me to Annexure “-1” and the payslip for the week ending 23 December 2020, which he submitted was ‘fairly recent’.[73] The payslip for the week ending 23 December 2020 contained in Annexure “-1” lists the Wife’s net pay as $827.00 per week.[74]
[72] Transcript, P43:L14-15.
[73] Transcript, P43:L44-46.
[74] Wife’s 7 January 2021 Affidavit, Annexure “-1”, 9
The Wife’s annual salary is $49,400.00, however there is the potential for the Wife’s income to vary marginally on a weekly basis should she choose to work overtime if it is available to her. For the purpose of determining the Wife’s income, I have taken the mean value of the Wife’s net pay for the period from 3 December 2020 to 23 December 2020, and determine that the Wife receives approximately $817.00 per week, after tax. This yields an annual net income of $42,484.00 and a monthly net income of $3,540.33.
Capital or Other Financial Resources at the Wife’s Disposal
As discussed above, the Court is required to consider all the financial and personal resources of the applicant, including other sources of income which have accrued independently to the applicant and which are at the applicant’s disposal.
The Husband deposed that the Wife is in receipt of undisclosed rental income in the sum of $600 to $700 in return for leasing out a room of the D Street, Suburb E Property.[75] When cross-examined by the Husband’s Solicitor on this point, the Wife’s evidence was that from 22 July 2020 to 22 September 2020 she gave Ms G (Ms G) a ‘room to rent’ at the D Street, Suburb E Property, but that this was ‘free of cost’. The Wife also said that there was no rental agreement in place between the parties, or receipt of cash in return for use of the room.[76] The Wife’s evidence was that Ms G was new to Australia and that she had lost her two jobs due to the COVID-19 pandemic.[77] The Wife said she gave Ms G a room to live in at the D Street, Suburb E Property, and did not receive money in cash from Ms G or charge Ms G for bills, groceries or other living expenses.[78] The Wife’s evidence was that she asked Ms G to leave the D Street, Suburb E Property because the Wife’s expenses were increasing.[79] I accept the Wife’s evidence that Ms G lived in the D Street, Suburb E Property for a brief period from July 2020 to September 2020 and that this was a gratuitous act on behalf of the Wife. I find that this is not a current financial resource of the Wife which I am required to take into consideration.
[75] Husband’s 18 November 2020 Affidavit, [19]. While it is not specified, it is presumed that the amount of $600 to $700 is the amount the Wife allegedly receives on a monthly basis.
[76] Transcript, P4:L45-P5:L30.
[77] Transcript, P4:L46-47; P5:L16-17.
[78] Transcript, P4:L1-2.
[79] Transcript, P5:L17-20.
The Husband alleges that the Wife has failed to disclose a bank account that the Wife has in India, an interest in a store in City H, India and residential and commercial properties that she owns in City H, India.[80] The Husband has produced no evidence to substantiate any of these allegations. The only evidence before the Court is the Husband’s allegations. At the hearing on 4 February 2021 (Interim Hearing) none of these allegations were put to the Wife in cross-examination. I therefore place no weight upon these allegations made by the Husband.
[80] Husband’s 18 November 2020 Affidavit, [20].
The Wife deposed that she has savings of $20,000 which is her ‘emergency fund/monies’ as she has ‘no other income or financial resources’.[81] The Husband complains that he has only $1,876 in his bank account and also complains that on 27 February 2020 the Wife withdrew the sums of $9,000 and $13,000 from joint accounts and transferred these moneys to her own Commonwealth account ##...02.[82] As will be discussed later in these Reasons for Judgment, subsequent to separation the Husband used the sum of $225,000 which he withdrew from B Pty Ltd, to purchase a business in March 2020 for the sum of $310,000 without consulting the Wife.[83] Further, whilst unilaterally dealing with significant amounts of money from the matrimonial asset pool after the parties separated, the Husband paid virtually no child support to the Wife in 2020. The Husband’s complaints are therefore without merit.
[81] Wife’s 7 January 2021 Affidavit, [5].
[82] Husband’s 28 January 2021 Affidavit, [7] and Annexure “-2”.
[83] Husband’s 28 January 2021 Affidavit, [10] and Annexure “-3”.
The Wife also deposed that the mortgage payments on the D Street, Suburb E Property were suspended due to the COVID-19 pandemic until November 2020 and that she had requested a further extension to the suspension. The next payment was due on 13 January 2021.[84] Pursuant to the 26 November 2020 Consent Orders the Wife is solely responsible for the payment of all mortgage instalments and all rates, taxes and other outgoings with respect to the D Street, Suburb E Property.[85] When cross-examined in relation to her expenses, the Wife said that she missed the 7 January 2020 mortgage payment of $1,900. The Wife gave evidence that: ‘I’m really not able to pay, but now bank is asking me to pay. And I have to pay, I have to start, otherwise bank will sell my house’.[86]
[84] Wife’s 7 January 2021 Affidavit, [6].
[85] 26 November 2020 Consent Orders, [7].
[86] Transcript, P6:L18-20.
I am satisfied, that in the circumstances of this case, the Wife should not be required to use her savings to pay the mortgage, so that she can provide a home for herself and the Children. It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that they are unable to support himself/herself adequately.[87] If the Wife is unable to make the mortgage payments on the D Street, Suburb E Property, the D Street, Suburb E Property will be required to be sold. The Wife and the Children would then be forced to find rental accommodation. The Husband’s attitude to the Wife was set out clearly in the Husband’s 18 November 2020 Affidavit: ‘Given that [the Wife] is not paying any mortgage and I have my own financial commitments including rent, I seek orders for immediate sale of the matrimonial home’.[88]
[87] Brown & Brown (2007) FLC 93-316, 81,455; [2007] FamCA 151, [161].
[88] Husband’s 18 November 2020 Affidavit, [39].
In the Husband’s 28 January 2021 Affidavit the Husband deposed to spending $1,825 a month on rent.[89] If the Wife was compelled to rent accommodation, it is likely that she would have to spend at a similar amount in rent to accommodate herself and the Children.
[89] Husband’s 28 January 2021 Affidavit, [4].
The Husband contends that the Wife should only be paying the interest component of the mortgage of $900 a month.[90] The Husband has not produced any evidence that the lender, the Australia and New Zealand Bank would accept payments of interest only on the mortgage after the suspension of the mortgage payments due to COVID-19.[91] The Wife has deposed that the mortgage repayments required by the lender is ‘principal and interest’ and that the monthly minimum repayment required from 13 January 2021 is $1,903.53.[92] The Husband agreed to the 26 November 2020 Consent Orders which state that the Wife was to be responsible ‘for the payment of all mortgage instalments’[93]. The Husband conceded under cross-examination that the Wife had to pay the principal and the interest.[94] There was no agreement in the 26 November 2020 Consent Orders that the Wife only pay the interest component of the mortgage instalments or that the parties attempt to negotiate with the lender on interest only repayments of the mortgage pending the finalisation of this proceeding. The Husband’s contention that the Wife should only be paying the interest component of the mortgage of $900 a month is without merit.
[90] Husband’s 28 January 2021 Affidavit, [5] and [8].
[91] Wife’s 7 January 2021 Affidavit, [6].
[92] Wife’s 7 January 2021, Affidavit, [6] and Annexure “-2”.
[93] 26 November 2020 Consent Orders, [7].
[94] Transcript, P33:L34-40.
For the foregoing reasons, I consider that the Wife’s savings of $20,000 are not a financial resource that I am required to take into consideration.
The Husband alleges that the Wife has in her possession gold jewellery worth $20,000.[95] The Husband has not produced any evidence to substantiate this allegation. The Husband’s Solicitor has not requested an order that the Wife produce any gold jewellery that she has in her possession so that it may be valued. The Husband’s allegation in relation to the Wife’s gold jewellery was not put to the Wife in cross-examination at the Interim Hearing. I therefore place no weight upon this allegation made by the Husband.
[95] Husband’s 18 November 2020 Affidavit, [38].
The Wife’s Expenses
In the Wife’s 7 January 2021 Affidavit the Wife deposed that the information contained in Part N of the Wife’s Financial Statement had changed. The Wife’s 7 January 2021 Affidavit contained a table of the Wife’s current income and expenses (Wife’s Expenses Table) as set out below:[96]
[96] Wife’s 7 January 2021 Affidavit, [3].
Expenses
Monthly
Y Childcare
$420
X Before care
$230
X After care
$130
Eating out for 3
$500
Kids necessities, such as clothes, shoes, toys, outings, birthdays, gifts
$400
Babysitter (once a week)
$400
Miscellaneous (car service, handyman, gardener, pest control, home insurance, maintenance)
$600
Groceries
$900
Transport, fuel and insurance
$450
Entertainment (TV subscriptions)
$70
Mortgage
$1,900
House Cleaning (weekly)
$400
Utilities, energy bills, Telstra
$700
Total Expenses
$7,100
Income
$775 weekly
$ 3,358 per month
[..]
What is the Quantum of the Wife’s Reasonable Needs?
The second issue to be considered is the quantum of the Wife’s reasonable needs.
The Husband contended that the Wife has exaggerated her expenses,[97] and he deposed that: ‘When we were cohabitating, our monthly expenses were around $900-$1,000 including Mortgage repayment’.[98] When the Husband was cross-examined in relation to this statement he said it was a ‘mistake’ and that the groceries were $900-$1,000 a month.[99] The Husband then said that when the parties were living together their monthly expenses were ‘somewhere around $4200-$4000’ a month.[100] The Husband did not provide any particulars in an affidavit as to how he calculated the amount of $4,000 to $4,200.
[97] Husband’s 18 November 2020 Affidavit, [39]; Husband’s 28 January 2021 Affidavit, [5].
[98] Husband’s 18 November 2020 Affidavit, [19].
[99] Transcript, P35:L45-P36:L2.
[100] Transcript, P36:L7-8.
In the Husband’s 28 January 2021 Affidavit the Husband provided an itemised estimate of the parties’ living expenses prior to separation of $3,300, based on the Wife’s Expenses Table,[101] however this list:
(a)Only included mortgage payments of $900 a month and not repayments of principal and interest of $1,900 a month. This is a difference of $1,000 a month;
(b)Did not include house cleaning of $400. The parties had house cleaners during the relationship. This is a difference of $400 a month; and
(c)Included groceries of $600. The Husband’s evidence under cross-examination was that the parties spent $900-$1,000 a month on groceries. This is a difference of up to $400 a month.
[101] Husband’s 28 January 2021 Affidavit, [5].
Therefore the Husband has underestimated the parties’ living expenses referred to in the Wife’s Expenses Table by up to $1,800. This would take the Husband’s estimate in paragraph 5 of the Husband’s 28 January 2021 Affidavit to $5,100 and not $3,300 a month which the Husband deposed to.
I consider the following expenses in the Wife’s Expenses Table to be reasonable:
Y Childcare
$420
X Before care
$230
X After care
$130
Kids necessities, such as clothes, shoes, toys, outings, birthdays, gifts
$400
Miscellaneous (car service, handyman, gardener, pest control, home insurance, maintenance)
$600
Groceries
$900
Transport, fuel and insurance
$450
Mortgage
$1,900
House Cleaning (weekly)
$400
Utilities, energy bills, Telstra
$700
Total Expenses
$6,130
In relation to the childcare and before and after care costs, it was put to the Wife in cross-examination that the Wife should permit the Husband to spend more time with the Children and that this would thereby reduce these costs. No doubt it would, if the parties were able to reach an agreement on such matters. However, it is evident that the parties have been unable reach such agreement. Interim parenting Orders were made in the 26 November 2020 Consent Orders, where Orders were made for the Husband to spend time with the Children.[102] There is no pending interim application by the Husband listed to be heard by the Court to vary the 26 November 2020 Consent Orders. At the conclusion of the Interim Hearing at 4:10 pm in the afternoon, the Husband’s Solicitor made an oral application for the Husband’s time with the Children to be increased. The Court declined to entertain that oral parenting application at the Interim Hearing.
[102] 26 November 2020 Consent Orders, [2].
In relation to the expense of ‘Kids necessities, such as clothes, shoes, toys, outings, birthdays, gifts’, this is a reasonable amount for two growing children, being $2,400 per annum for each child.
In relation to the housecleaning costs, the Wife said when cross-examined, that her daily routine was:
My […] routine is at 6.30 I drop my kids, I go to my work. I don’t do office work, I work on a factory, and all 12 hours I have to be on my feet. – [A]t 6.30 I pick both of my kids and come to my house, and then I need to look after them and they go to bed by eight o’clock.[103]
The Wife also said when cross-examined that the parties had for many years paid for housecleaners. The Wife said that she had housecleaners because she had a four bedroom house, the Children, was working 12 hours a day, and she did not have time for the cleaning.[104]
[103] Transcript, P8:L40-43.
[104] Transcript, P14:L44-46.
In relation to transport fuel and insurance, the Wife said that she drives a total of 100 kilometres every day to and from work, taking an hour each way.[105] Therefore the Wife travels at least 500 kilometres a week, a total of 2,000 kilometres a month. The Wife has her car serviced every three months.[106]
[105] Transcript P9:L25-27.
[106] Transcript, P17:L8-15.
In relation utilities, energy bills and Telstra, I note that the Wife is responsible for the rates, taxes and other outgoings associated with the D Street, Suburb E Property pursuant to the 26 November 2020 Consent Orders.[107]
[107] 26 November 2020 Consent Orders, [7].
I consider the following expenses in the Wife’s Expenses Table not to be reasonable for the purposes of this application:
(a)$500 a month on eating out;
(b)$400 a month for babysitting once a week. When cross-examined the Wife said that she spent $100 a week going out with her friends on either Friday or Saturday nights;[108] and
(c)$70 for entertainment, being computer and TV subscriptions. The Wife has subscribed to quite an array of subscriptions.[109] I would allow half - $35.
[108] Transcript, P7:L16-36.
[109] Transcript, P13:1-P14:L30.
Therefore to the sum of $6,130 a month I add $35 for the expense of Entertainment (TV subscriptions), making a monthly total of the Wife’s expenses of $6,165.00.
I am satisfied that taking into account these reasonable expenses totalling $6,165.00 a month, the Wife is unable to adequately maintain herself on her monthly net income of $3,540.33.
The Wife has the primary care of the parties’ two Children, X and Y.[110] Accordingly, given the Wife has the care and control of the Children of the marriage, I am satisfied that the Wife meets the threshold requirement under s.72(1)(a) of the Act.
[110] Wife’s 18 August Affidavit, [11].
The Husband’s Capacity to Pay
The Husband currently operates two businesses. B Pty Ltd which is operated through B Pty Ltd. The Wife deposed that the parties had been directors of B Pty Ltd since the beginning of 2013. The Wife has recently discovered that in 2018 the Husband, through his accountant, removed the Wife as a director of B Pty Ltd without her consent.[111] In July 2018, the Wife’s shares in B Pty Ltd were also transferred to the Husband without her knowledge or consent.[112]
[111] Wife’s 18 August 2020 Affidavit, [15].
[112] Wife’s 7 January 2021 Affidavit, [9] and Annexure “-4”, 41-42.
The Wife deposed that the Husband under declared his income as follows:
(a)For the Financial year ending 2018 [the Husband] declared a taxable income of $20,242 for a business that turned over $808,474; and
(b)For the financial year ending 2019 [the Husband] declared a taxable income of $20,368 for a business that turned over $556,854.[113]
[113] Wife’s 18 August 2020 Affidavit, [16].
From January 2020 to March 2020 the Husband transferred $343,000 into his personal account. In March 2020 the Husband purchased another business C Pty Ltd trading as C Pty Ltd for $310,000. The Husband’s accountant states that $225,000 was withdrawn by the Husband from B Pty Ltd and applied towards the purchase of C Pty Ltd.[114]
[114] Husband’s 28 January 2021 Affidavit, [10] and Annexure “-3”.
When the Husband was cross-examined by the Solicitor for the Wife it was evident that the Husband considered the assets of B Pty Ltd to be his property and not matrimonial assets, and that he considered that he was entitled to deal with those assets without any consultation whatsoever with the Wife. This became even more evident when the Husband’s Solicitor interrupted the Husband’s cross-examination with ‘[the Husband] may not really have understanding of joint matrimonial business’.[115]
[115] Transcript, P38:L34-35.
The Husband deposed that the B Pty Ltd business ran at a loss in 2019 and that in 2020 the B Pty Ltd business was barely operational, due to the COVID-19 pandemic.[116] The Husband also deposed that due to the COVID-19 pandemic the C Pty Ltd business was running at a loss and that he was barely meeting his expenses.[117] The Husband also said ‘[b]oth the businesses have now been further impacted due to the Covid-19 lockdowns and will take years to recoup the losses’.[118] In the Husband’s 28 January 2021 Affidavit, the Husband said that due to the recent easing of the restrictions imposed during the COVID-19 pandemic ‘both the businesses are now showing signs of recovery’.[119]
[116] Husband’s 18 November 2020 Affidavit, [21] and [22].
[117] Husband’s 18 November 2020 Affidavit, [22].
[118] Husband’s 18 November 2020 Affidavit, [25].
[119] Husband’s 28 January 2021 Affidavit, [9].
In the Husband’s Financial Statement, the Husband deposed that his average weekly income was $1,100. In the Husband’s 28 January 2021 Affidavit, the Husband deposed that his monthly income was estimated to be $4,440 (weekly $1,100).
When the Husband was cross-examined at the Interim Hearing, it was put to Husband that the NAB Bank Statements for C Pty Ltd for the 10 months up to December 2020 averaged an income of about $50,000 a month. The NAB Bank Statement for the month of December 2020 for C Pty Ltd showed an income of $55,259.90.[120] It was put to the Husband that the Husband’s discovered documents indicated that the combined turnover of the Husband’s Business Interests was around $65,000 a month, being about $780,000 per annum. The Husband conceded turnover for both of the businesses to be $50,000 per month, being an annual turnover of $600,000 a year.[121]
[120] Exhibit A1.
[121] Transcript, P31:L20-P32:L42.
When the Husband was cross-examined, it was put to the Husband that the parties’ taxable incomes as directors of B Pty Ltd (trading as B Pty Ltd) in the financial years 2017, 2018 and 2019, was about $600 net combined a week ($20,000 net combined per annum), based on the notices of assessment from the Australian Taxation Office. The Husband accepted this proposition. It was then put to the Husband that this was income of only $2,400 a month and that the Husband had given evidence of monthly expenditure whilst the parties were living together of about $4,200 a month. The Husband then gave evidence that ‘there were certain expenses which were put […] in the business too’.[122] Therefore during these financial years the parties’ living expenses were being claimed as business expenses and the business income was under declared.
[122] Transcript, P36:L34-P37:L16.
In final submissions, the Solicitor for the Wife submitted that the Court could safely accept that the Husband’s Businesses Interests were making a healthy turnover of at least $600,000 per annum, and that the Husband’s evidence that he was only making $1,100, a week, which was little over six per cent of the takings, should not be accepted. It was submitted that the Court should not accept that the Husband was putting so much ‘energy and effort’ into running two businesses seven days a week, for so little return, when the Husband could find employment and earn more.[123]
[123] Transcript, P44:L38-47.
The Wife’s Solicitor also submitted that the Husband has the benefit of the two businesses which he does not have to account to the Wife for anything, being: how he runs them; what deductions he makes; and how much income he makes. The Husband has treated the two businesses as his own property and done as he pleases with these assets. The Wife’s Solicitor submitted that the Husband had not provided any detailed financial statements in relation to either business. It was submitted that the Husband had clearly under declared his income from both of those businesses turning over $600,000 a year.[124]
[124] Transcript, P45:L10-16.
In final submissions, the Husband’s Solicitor submitted in relation to the NAB Bank Statement for the month of December 2020 for C Pty Ltd,[125] that there were many deductions and that no conclusion could be made about the profitability of C Pty Ltd.[126] The difficulty with this submission is that the Husband has not provided any detailed financial statements in relation to what these deductions were for and it was incumbent upon the Husband to do so. It is evident that historically the Husband has understated the parties’ taxable income in the operation of B Pty Ltd (the B Pty Ltd business) and claimed the parties’ living expenses as business expenses. The Husband, on his own evidence, admitted to this under cross-examination.
[125] Exhibit A1.
[126] Transcript, P45:L37-46.
I accept the submissions made by the Solicitor for the Wife in relation to the Husband’s income and find that the Husband has understated his income of $1,100 a week and $4,400 a month. I also find that the Husband, by reason of his access to B Pty Ltd ( B Pty Ltd) and C Pty Ltd (C Pty Ltd), has access to two businesses with a turnover of at least $600,000 per annum. This is a resource from which the Husband is able to access cash and draw an income well in excess of $1,100 a week and which he has failed to make full and frank disclosure in relation to.
The Husband’s Expenses
In the Husband’s Financial Statement the Husband claimed to have personal expenses of $1,206,[127] which were:
[127] Husband’s Financial Statement, Part G, [33].
Rent $421.15
ANZ Home Loan $475.00
Car insurance $50.00
Motor vehicle registration $15.00
Child support $245.00
Total $1,206
The Husband’s Financial Statement did not otherwise provide a breakdown of the Husband’s expenses in Part N of the Financial Statement.
In addition to the claimed personal expenses of $1,206, the Husband claimed to be paying $200 a week to Ms J, the Husband’s mother.[128] The Husband provided no affidavit evidence explaining the reason for this payment of $800 a month. At the Interim Hearing, the Husband’s Solicitor informed the Court that the Husband paid this money to his Mother to look after him when he had a ‘health condition’ and said that the Husband was still paying his Mother this money as she was still in Australia.[129]
[128] Husband’s Financial Statement, Part H, [34].
[129] Transcript, P46:L31-P47:L5.
The Husband’s Financial Statement was materially misleading because:
(a)The Husband was not making mortgage payments of $475 a week ($1,900 a month); and
(b)The Husband was not making child support payments of $245 a week ($1,000 a month). For the period 29 December 2019 to 29 December 2020 the Husband paid a total of $400.37 in child support. As at 29 December 2020 the Husband was $3,627.57 in arrears of child support.[130] I questioned the Husband at the Interim Hearing about his Financial Statement as follows:
So that when you said [in] the financial statement filed on 18 November 2020 that you were paying – actual payment of child support $245 a week; that was false? - - -It was meant to be paid. That was – It was- - -
But it was not correct? - - -it was not paid at that time exactly.
No, that’s right. Thank you.[131]
[130] Wife’s 7 January 2021 Affidavit, [7] and Annexure “-3”.
[131] Transcript, P30:L44-P31:L3.
In the Husband’s 28 January 2021 Affidavit, the Husband then deposed that his monthly expenses were estimated to be $4,225, as set out in the following table (Husband’s Expenses Table):[132]
[132] Husband’s 28 January 2021 Affidavit, [4].
Breakdown of Expenses Rent $1,825 Child support $1,000 Utilities E$150 Grocery E$250 Telephone x 2 E$150 Motor vehicle fuel, insurance & Registration E$410 Medicine, chiropractic therapy and Physiotherapy E$240 Kids necessities & entertainment such as clothes, shoes, toys and outings E$200
I will discuss the expenses claimed in the Husband’s Expenses Table where relevant in relation to the matters referred to in s.75(2) of the Act.
Consideration of the Section 75(2) Factors
I will now consider each of the matters referred to in s.75(2) of the Act insofar as they are relevant.
Section 75(2)(a) the age and state of health of each of the parties;
The Husband was born in 1982 and is aged 39. The Husband has deposed that he is suffering from diabetes, high blood pressure and that he has ‘heart problems’. The Husband has also undergone a triple bypass surgery procedure. He also suffers from a ‘lower back issue with static pains (avascular necrosis), arthritis, had Gout (sic) in [his] leg and iritis in [his] right eye (temporary blindness)’.[133]
[133] Husband’s 18 November 2020 Affidavit, [36].
The Wife was born in 1985 and is aged 35. The Wife is suffering from anxiety and depression and is taking antidepressant medication and attending a psychologist. The Wife is otherwise in good health.[134]
Section 75(2)(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
[134] Wife’s 18 August 2020 Affidavit, [25] and [27].
The income, property and financial resources of the Wife have been discussed previously in these Reasons for Judgment under the headings ‘The Wife’s Income’ and ‘Capital or Other Financial Resources at the Wife’s Disposal’.
The income, property and financial resources of the Husband have been discussed previously in these Reasons for Judgment under the heading ‘The Husband’s Capacity to Pay’. The Husband claims that ‘[d]ue to my poor health I am now unable to give the same amount of input in the business as I used to in the past’.[135] The Husband did not produce any evidence from a health care professional as to his current state of health.
Section 75(2)(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
[135] Husband’s 28 January 2021 Affidavit, [15].
The Wife is the primary carer of the Children. Pursuant to the 26 November 2020 Consent Orders, it was ordered that the Children live with the Wife and spend time with the Husband in a fortnightly cycle as follows:[136]
[136] 26 November 2020 Consent Orders, [1] and [2].
(a)In week 1 commencing 28 November 2020 and every alternate Saturday thereafter from 10:00 am to 6:00 pm; and
(b)In week 2 commencing 6 December 2020, and every alternate Sunday thereafter from 10:00 am to 6:00 pm.
Section 75(2)(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(i) himself or herself
The Wife’s commitments necessary to support herself have been discussed previously in these Reasons for Judgment under the headings ‘The Wife’s Expenses’ and ‘What is the Quantum of the Wife’s Reasonable Needs?’.
The Husband’s commitments necessary to support himself have been discussed in part previously in these Reasons for Judgment under the heading ‘The Husband’s Expenses’. I turn now to consider the relevant items in the Husband’s Expenses Table.
In relation to the Husband’s monthly expenses of rent of $1,825, utilities of $150 and groceries of $250, I consider these to be necessary expenses for the Husband to support himself.
In relation to the Husband’s claim for monthly expenses of $150 for operating two telephones, I do not consider operating two telephones to be a necessary expense for the Husband to support himself. When the Husband was cross-examined in relation to this expense, the Husband conceded that he was using the telephones, one with Optus and the other with Telstra for business as well as for personal use, which included calling India regularly. The Husband said that a ‘percentage’ was used for business.[137] I consider that one telephone is sufficient for the Husband to support himself for his personal use and therefore will allow $75, being half of the claimed amount of $150 for the two telephones.
[137] Transcript, P34:L37-P35:L22.
In relation to the Husband’s claim for the monthly expense of $410 for ‘Motor vehicle, fuel, insurance and registration’, I consider this to be a necessary expense for the Husband’s support.
In relation to the Husband’s claim for the monthly expense of $240 for ‘Medicine, chiropractic therapy and physiotherapy’, there is no evidence before the Court from any health care professional as to any condition that the Husband is presently suffering from requiring medication or the need for the Husband to attend a chiropractor or physiotherapist on an ongoing basis. The Husband himself does not explain in his own affidavit material what medications he claims to be on, their expense or the circumstances he claims that require his continued attendance on any chiropractor or physiotherapist or the cost of such attendances. In the absence of such evidence this claim is not made out.
(ii) a child or another person that the party has a duty to maintain;
Each party has a responsibility to contribute towards the support of the Children. The Wife is responsible for the expenses of the Children whilst they are in her care. The Children are essentially in the Wife’s full time care. As discussed in relation to s.75(2)(c) of the Act, the Children only spend eight hours a week with the Husband, being from 10:00 am to 6:00 pm on alternate Saturdays and Sundays.
In relation to the Husband’s claim for the monthly expense of $200 for ‘Kids necessities & entertainment such as clothing, shoe, toys and outings’, I do not consider this to be a necessary or reasonable claim. The Husband is assessed to pay child support which is to cover the Children’s necessities and he has not been paying it (as discussed previously in these Reasons for Judgment under the heading ‘The Husband’s Expenses’). The Husband has the Children for only eight hours a week and therefore there is no requirement for him to be buying the Children clothes and shoes. Buying the Children toys is not a necessity. Some modest allowance for entertainment of the Children when they spend time with the Husband should be made and I consider $40 a month reasonable.
When the Husband was cross-examined in relation to his expenditure on the Children he said that he had spent over $5,000 on the Children, on a birthday, a trip to City K with family and friends, ‘what they want to eat’ and $1,000 on clothes for the Children.[138] In my view this evidence indicates that the Husband clearly has access to an income in excess of $4,400 a month, as he was able to spend this discretionary amount of money on the Children, in addition to his other claimed expenses.
[138] Transcript P39, L17-44.
Further, as noted previously in these Reasons for Judgment in the discussion under the heading ‘The Husband’s Expenses’, the Husband claimed to be paying his Mother, Ms J, $200 a week.[139] This expenditure of $800 a month was not disclosed in the Husband’s Expenses Table or otherwise in the Husband’s 28 January 2021 Affidavit. At the Interim Hearing, the Husband’s Solicitor informed the Court that the Husband was still paying his Mother $200 a week.[140] The Husband has provided no affidavit evidence as to why he is paying his Mother $800 a week. In the absence of such evidence, I consider that this $800 a month is therefore available to be paid to the Wife as spousal maintenance. In my view, this is further evidence indicating that the Husband clearly has access to an income in excess of $4,400 a month, as he is able to pay an additional $800 to his Mother, in addition to his other claimed expenses. It is also significant evidence of the Husband’s failure to make full and frank disclosure of his financial affairs by failing to refer to this payment in the Husband’s 28 January 2021 Affidavit.
Section 75(2)(e) the responsibilities of either party to support any other person;
[139] Husband’s Financial Statement, Part H, [34].
[140] Transcript, P46:L31-P47:L5
This is not a relevant consideration.
Section 75(2)(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(i) any law of the Commonwealth, of a State or Territory or of another country;
I refer to the previous discussion in these Reasons for Judgment in relation to s.75(3) of the Act under the heading ‘Interim Spousal Maintenance Applications’.
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or rates, within or outside Australia;
This is not a relevant consideration.
Section 75(2)(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
Unless an order for spousal maintenance is made, the Wife will not be able to maintain the mortgage payments for the D Street, Suburb E Property, which will cause considerable hardship for the Wife and the Children. I refer to the previous discussion in these Reasons for Judgment under the heading ‘Capital or Other Financial Resources at the Wife’s Disposal’, in relation to the payment of the mortgage.
Section 75(2)(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
This is not a relevant consideration.
Section 75(2)(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
This is not a relevant consideration.
Section 75(2)(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
When the parties married in 2010 and the Wife migrated to Australia, the parties had no assets of significance.[141] The Husband has deposed that at that time he had savings of $20,000 to $25,000 in his account.[142] The Wife has been the primary carer for the Children since they were born. The Wife also worked in the B Pty Ltd business on both a part time and full time basis until February 2020.[143]
Section 75(2)(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
[141] Wife’s 18 August 2020 Affidavit, [21].
[142] Husband’s 18 November 2020 Affidavit, [9].
[143] Wife’s 18 August 2020 Affidavit, [15].
The parties married in 2010 and separated on 25 February 2020, therefore the relationship was of 10 years duration. The Wife holds qualifications, which she obtained in India before she migrated to Australia. The Wife deposed that she was unable to develop her professional career in her field because she had to ‘look after the business, the family and the kids’.[144]
Section 75(2)(l) the need to protect a party who wishes to continue that party’s role as a parent;
[144] Wife’s 18 August 2020 Affidavit, [26].
Both the Husband and the Wife will be able to continue their roles as parents.
Section 75(2)(m) if either party is cohabitating with another person - the financial circumstances relating to the cohabitation;
There is no evidence before the Court that either party is cohabitating with another person.
Section 75(2)(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
This is not a relevant consideration.
Section 75(2)(naa) the terms of any order or declaration to be made, or proposed to be made, under Pt.VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
This is not a relevant consideration.
Section 75(2)(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
The current child support assessment is for the Husband to pay $966.33 a month.[145]
[145] Wife’s 7 January 2021 Affidavit, [7].
For the period 29 December 2019 to 29 December 2020 the Husband paid a total of $400.37 in child support. As at 29 December 2020 the Husband was $3,627.57 in arrears of child support.[146]
[146] Wife’s 7 January 2021 Affidavit, [7] and Annexure “-3”.
In the Wife’s 7 January 2021 Affidavit, the Wife deposed that the Husband had not made any financial contributions to any other of the Children’s expenses.[147] In the Husband’s 28 January 2021 Affidavit, the Husband deposed that on 14 January 2021 he paid $3,000 towards the outstanding child support debt of $3,627.57.[148] When the Wife was cross-examined in relation to the Husband’s outstanding child support debt, she said that after the Husband’s payment of $3,000, the amount of $1,896 remained outstanding.[149]
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
[147] Wife’s 7 January 2021 Affidavit, [8].
[148] Husband’s 28 January 2021 Affidavit, [9].
[149] Transcript P23:L29-32.
All relevant matters have been considered in these Reasons for Judgment.
Section 75(2)(p) the terms of any financial agreement that is binding on the parties to the marriage;
This is not a relevant consideration.
Section 75(2)(q) the terms of any Pt.VIIIAB financial agreement that is binding on a party to the marriage;
This is not a relevant consideration.
Conclusion in Relation to the Quantum of the Husband’s Expenses
Having considered the relevant matters in s.75(2) of the Act, I consider the following expenses from the Husband’s Expenses Table to be reasonable:
Rent $1,825 Child support $966.33 Utilities $150 Groceries $250 Telephone $75 Motor vehicle fuel, insurance & Registration $410 Kids necessities & entertainment such as clothes, shoes, toys and outings $40 Total $3,716.33
The Husband’s claimed expenses pursuant to the Husband’s Expenses Table is $4,225 a month. The Husband’s claimed expenses have therefore been reduced by $508.67 a month. In addition, the Husband has an extra $800 a month by reason of the $800 that he has been paying to his Mother. This makes an additional $1,308.67 a month available on the Husband’s own calculations.
CONCLUSION
I have determined that the Wife receives income of approximately $817.00 per week after tax, yielding an annual net income of $42,484.00 and a monthly net income of $3,540.30. The Wife is also entitled to receive the sum of $966.33 a month from the Husband pursuant to the current child support assessment. This makes a total net monthly income for the Wife of $4,506.63.
In determining the Wife’s income, pursuant to s.75(3) of the Act, I have not taken into account the approximate sum of $287 that the Wife receives each week from Services Australia for the Family Tax Benefit A and B.
I have determined the Wife’s reasonable monthly expenses to be $6,165.00.
I am satisfied that taking into account these reasonable monthly expenses of $6,165.00, the Wife is unable to adequately maintain herself on her monthly net income of $3,540.30 or her monthly income of $4,506.63 (including child support).
The difference between the Wife’s reasonable monthly expenses of $6,165.00 and the Wife’s monthly income of $4,506.63 is a shortfall of $1,658.37. Therefore, the Wife is unable to meet her expenses each month in the amount of approximately $1,658.37, which is $414.59 a week.
I have determined that the Husband has an additional $1,308.67 a month available to him on his own calculations. I have also found that the Husband, by reason of his access to B Pty Ltd trading as B Pty Ltd and C Pty Ltd trading as C Pty Ltd, has access to two businesses with a turnover of at least $600,000 per annum. This is a resource from which the Husband is able to access cash and draw an income well in excess of $1,100 a week.
I therefore find that the Husband is reasonably able to pay to the Wife the sum of $415.00 a week in interim spousal maintenance, being the shortfall I have calculated in the Wife’s weekly expenses.
The Full Court in Milankov & Milankov held that the Court has the discretion to make orders for retrospective spousal maintenance.[150] Having regard to the time that has elapsed since judgment was reserved in this matter (which I have calculated to be 15 weeks) and having determined that the Wife has established a need for maintenance during that period, I am inclined to make such an order. Whilst I note that this order will create a retrospective liability which has the effect of creating arrears, these arrears do not comprise lump sum maintenance. Rather, they are simply an accumulation of periodic spousal maintenance that ought to have been paid by the Husband to the Wife since the Interim Hearing of this matter and after the Court has availed itself of the opportunity to consider all the evidence.
[150] Milankov & Milankov (2002) 28 FamLR 514, [100]; (2002) FLC 93-095.
Accordingly, I have calculated 15 weeks of spousal maintenance from Friday 5 February 2021 to Friday 14 May 2021 at a weekly rate of $415 to be $6,225.
Orders will be made accordingly.
I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton QC. Associate:
Dated: 18 May 2021
See generally: In the marriage of Astbury (1978) 34 FLR 173; In the Marriage of Bevan (1994) 19 Fam LR 35; In the marriage of Kajewski (1978) 31 FLR 500.
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