Arden & Arden

FEDERAL CIRCUIT COURT OF AUSTRALIA
Arden & Arden [2021] FCCA 1201

File number(s): SYC 2503 of 2020

Judgment of: JUDGE MORLEY

Date of judgment: 21 May 2021

Catchwords: FAMILY LAW – interim spousal maintenance – lump sum and periodic spousal maintenance – where the quantum to be paid to the wife in the form of lump sum spousal maintenance is in dispute – where the husband opposes an order for periodic spousal maintenance –marriage of approximately 24 years – where the wife is not able to adequately support herself – where the wife has the primary care of a child of the marriage – where that child suffers from severe mental health issues – where the husband has an excess of income over expenses and is reasonably able to maintain the wife

Legislation:
Evidence Act 1995 (Cth) ss 50

Family Law Act 1975 (Cth) ss 69ZL, 72, 74, 75, 79, 80, 83, 117

Federal Circuit Court Rules 2001 (Cth) rr 24.03

Cases cited:
Bevan & Bevan (1995) FLC 92-600

Mee & Ferguson (1986) FLC 91-716

In the Marriage of Redman (1987) 11 Fam LR 411

In the Marriage of DJM and JLM (1998) 23 Fam LR 396

In the Marriage of Vautin (1998) 23 Fam LR 627

Maroney & Maroney [2009] FamCAFC 45

Hall & Hall (2016) FLC 93-709

Britt & Britt (2017) FLC 93-764

Number of paragraphs: 247

Date of last submission/s: 29 April 2021

Date of hearing: 29 April 2021

Place: Sydney

Counsel for the Applicant: Ms Spain of Counsel

Solicitor for the Applicant: Somerville Legal

Counsel for the Respondent: Ms Beck of Counsel

Solicitor for the Respondent: Fox & Staniland Lawyers
ORDERS

SYC 2503 of 2020

BETWEEN: MS ARDEN

AND: MR ARDEN

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

21 MAY 2021

THE COURT ORDERS THAT:
1.Within 14 days, the Husband pay to the wife the sum of $25,000 by way of lump sum spousal maintenance, with the characterisation and treatment of that payment to be considered on final hearing of the financial proceedings between the parties.
2.The husband pay to the wife the sum of $1,300 per week, by way of periodic spousal maintenance, such sum to be paid weekly by the Husband into the Wife’s Westpac Choice account, BSB: ...83; Account No. ...93, the first such payment to be made on an arrears basis on Thursday 27 May 2021.
3.The proceedings are listed for Call-Over for the making of trial directions and the allocation of a Compliance Check date on a date and at a time to be advised.

THE COURT NOTES THAT:

A.All interim applications currently before the Court have been exhausted.
B.In relation to the allocation of Call-Over, the matter has been given an administrative listing of 3 December 2021 at 9:00AM. This is a listing for ease of administration, and the matter will be relisted from this date and time to another date and time in 2022. Appearances are not required, nor will be taken on the December date.

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 Arden & Arden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY

These are the Reasons for Judgment that were delivered verbally on 21 May 2021. They have been settled herein in written form. Grammatical errors and accidental errors in reference have been amended for ease of comprehension. Legal citations have been included in full and incorporated into these reasons.
These reasons relate to an interim hearing that took place on 29 April 2021 between the Applicant Wife, Ms Arden (“the wife”), and the Respondent Husband, Mr Arden (“the husband”) on the issue of the wife’s application that the husband pay to her both periodic and lump sum spousal maintenance.
The parties married in 1995 and commenced their cohabitation at that time. They separated on 27 November 2019, upon which date the husband vacated the matrimonial home at B Street, Suburb C.
The parties had two children in their relationship: Ms D, who is now an adult, 21 years of age, and X, born in 2003. X is, of course, 17 years of age.
The proceedings were commenced by the Initiating Application filed by the wife on 16 April 2021, together with her supporting documents required by the Rules. The husband filed his response to Application for Final Orders on 15 June 2020.
The matter came before Registrar Hayward on 13 July 2020, at which time the Registrar made some directions and orders in relation to disclosure, in relation to establishing valuations and appointed a Conciliation Conference for 16 September 2020. The Conciliation Conference took place on that date. The matter was not settled.
The matter came before me for mention on 8 October 2020, at which time I listed the parties’ competing interim applications for an interim hearing for 7 June 2021 and directions were made, but by subsequent Chambers order, that date for interim hearing was able to be brought back to the earlier date of 29 April 2021. It took place on that day and judgment was reserved.
At the interim hearing, the wife was represented by Ms Spain of counsel. The husband was represented by Ms Beck of counsel. Both counsel provided to the Court an Outline of Case document, including, amongst other things, Minute of the orders sought by that party, and chronology, and some written submissions. Both counsel made oral submissions on behalf of the parties at the interim hearing.
The competing applications of the parties in summary form are as follows.
The wife, in the minute of order contained in her counsel’s Case Outline document, seeks, firstly, an order that the husband pay to her periodic spousal maintenance in the sum of $1300 per week, to be paid into an account nominated in the order by the wife for that purpose, such payment to be made either on a weekly basis or on a monthly basis in the sum of $5630.
The wife also sought payment to her from the husband of spousal maintenance in lump sum form in the sum of $35,000, to be paid within 14 days, or, if there is a failure of payment for a period of 28 days, enforcement by way of a sale of real estate property at E Street, Suburb F, and the consequent division of net proceeds of sale, as to the lump sum payment sought by the wife, and the balance of the net proceeds being held in a trust account of the wife’s solicitors, pending final order.
The wife sought an order for costs.
The husband, for his part, sought, firstly, an order that he pay to the wife a sum of $25,000 within 14 days of orders, “such amount to be categorised at the final hearing of this matter”, and that, otherwise, the wife’s application be dismissed.
I will say at this point that, as I have already outlined, the wife characterised the two orders sought by her, both for periodical payments and for lump sum payment, as interim spousal maintenance. The husband did not categorise. That is no criticism of him or his advisors in any way, but it is important to note that when the Court makes an order for payment of money, the Court must make an order within its jurisdiction, firstly, and, of course, when within jurisdiction, under a head of power. It is important, and it has fallen from the Full Court of the Family Court of Australia in the past, that on each such occasion, the Court’s power to make such an order be identified and referred to, and in this matter, in consequence of the orders that are sought on the interim basis by the wife and the wording of the husband’s order, I approach the matter as a periodic and lump sum spousal maintenance matter.
There are other heads of power, pursuant to which a lump sum payment can be ordered on the interim basis, being a partial property settlement order, under the Court’s powers under section 79 of the Family Law Act 1975 (Cth) (“the Act”), referring to section 80(1)(h) of the Act in that regard. It can also be ordered by way of interim costs order under the powers of the Court in section 117 of the Act, and particularly section 117(2), requiring consideration of the matters set out in section 117(2A).
As I say, I approach this matter on the basis of interim spousal maintenance in relation to the lump sum payment.
The material relied upon by the wife at the interim hearing is as follows.
(1)The Case Outline document prepared by the wife’s counsel, Ms Spain.
(2)The Initiating Application filed 16 April 2021.
(3)The Affidavit of the wife affirmed 15 April 2021 and filed that day.
(4)The wife’s Financial Statement affirmed 15 April 2021 and filed that day.
The material relied upon by the husband at the interim hearing is:
(1)The Case Outline document prepared by his counsel, Ms Beck, and filed 26 April 2021 together with a Minute of the orders sought by the husband.
(2)The Response to Application for final orders filed 15 June 2020.
(3)The Affidavit of the husband sworn 15 April 2021 and filed that day.
(4)The Financial Statement of the husband sworn or affirmed 15 April 2021 and filed that day.
I have read and carefully considered the whole of the material relied upon by each of the parties, including the case outline documents and written submissions therein.
I have reviewed and carefully considered the oral submissions made on behalf of each of the parties by their counsel at the interim hearing; firstly, the submissions made by Ms Spain on behalf of the wife, then submissions made by Ms Beck on behalf of the husband, and finally the short submissions in reply made by Ms Spain for the wife.
I note that in this matter, on the evidence, there is a Final Apprehended Domestic Violence order in force for the protection of the wife and the adult child, Ms D, from the husband, which runs until 16 March 2022.
Considering the evidence of the parties, the wife’s evidence as set out in her Affidavit confirms the details of the relationship and the children.
Ms D, who is currently 21, is a university student at G University, studying a Bachelor’s degree. X, who is currently 17 years of age, I take it from matters contained within the husband’s material, is still a school student.
X resides principally with her mother in the former matrimonial home at Suburb C. In relation to the time she spends with her father, the mother asserts that X has only spent two overnight occasions during this year, 2021, with the father, but the father gives evidence in his affidavit that there are frequent occasions upon which he spends time with X during the daytime, including having meals together and X spending time at his place in company with her friends.
The mother deposes that her parents reside with herself, Ms D, and X, at the Suburb C property, and that they live independently. They are both in receipt of an aged pension. The mother says that she does not make any contribution financially towards her parents’ living expenses, but, on the contrary, they assist her financially. There is some mixing of financial matters between the mother and her parents in relation to contributions to outgoings for utilities and so forth, which I will come to shortly.
The mother gives some detailed evidence in her affidavit in relation to mental health difficulties experienced by X over the past few years and through to the present time, and I traverse some of that evidence as relevant to matters for consideration of the Court in a spousal maintenance matter under section 75(2) of the Act.
The mother says that in March 2018 X was diagnosed with social anxiety and major depression, and that around November/December 2018 X began to self-harm. She had recourse to some mental health medical attention through the PECC (Psychiatric Emergency Care) unit at Suburb H Hospital, and then later with the CYMHS Unit.
On 23 July 2019, X consumed a large quantity of tablets from her mother’s medicine cabinet, which constituted an overdose. She was found in a semi-conscious state and taken to emergency at Suburb H Hospital, where she was resuscitated and put into intensive care. She spent several days thereafter in the children’s ward under constant supervision and then was placed in the J unit and remained there for four weeks.
On 12 May 2020, X was taken to the J unit of Suburb H Hospital due to concerns of self-harm and suicidal ideation, and was admitted to the PECC unit for assessment, then admitted to the J unit again. She remained a patient there for around four weeks. The mother asserts that in that time, X attempted suicide three times. X was discharged into the mother’s care on 10 June 2020 under the supervision of the OSCA team.
The mother says that X went to live with her father on 29 December 2020 and remained with him until 14 January 2021, when she returned to live with her mother. She says that X has been living with her constantly since 14 January 2021, with the exception of sleeping two nights at the father’s house; that would mean 16 nights at the father’s house in this calendar year up until the time of this affidavit on the mother’s evidence.
The mother then, in paragraphs 41 to 47 of her affidavit, sets out material under the heading ‘domestic violence and sexual abuse’. I have read and considered that material, but I will not go through it in this summary of the evidence as it is tangentially relevant to the matter before the Court today, where the matters to be considered by the Court are, and only are, the matters set out in section 75(2) when assessing the basis upon which orders for spousal maintenance in the interim can be made. I take that material into account only in relation to the mother’s further evidence of her need to engage in counselling, otherwise, it does not have a bearing.
Similarly, in paragraphs 48 to 62 of the mother’s affidavit, she sets out material under a heading ‘financial control and abuse’. The same considerations apply there. I have read that material and taken it into consideration only in relation to the further evidence provided by the mother in relation to her need for counselling, as otherwise, the matter is, as set out in the affidavit, not a matter to which the Court can have regard on the issue before the Court of interim spousal maintenance under section 75(2) of the Act.
In saying those things, I recognise that section 75(2)(o) relates to:
any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
I will deal with that further on when I am considering that part of section 75(2) in relation to the mother.
In paragraphs 63 and 64 of her affidavit, the mother gives some evidence in relation to counselling she has undergone and counselling that she takes part in currently. In paragraph 63.5 she indicates that she continues to have counselling with a Ms K at L Counselling in Suburb M, that person being, the mother asserts, an accredited mental health Social Worker and trained Individual, Couple, and Family Therapist. She says that she continues to consult with that person, “when I am able to afford it”.
In paragraph 63.6, she says that she has consultations with Dr N in Suburb C. The mother indicates that she consults with Dr N, “on occasions, in relation to my stress, anxiety, and trauma”.
The mother says that she has reduced her counselling sessions as she cannot afford to pay for them, and that Ms K charges $240 per session. The mother says she cannot afford those costs. She had to break for three months between January and March 2021 when she tried to manage on her own without counselling, and returned to see Ms K on 15 March 2021 when she felt she had need of support following an incident occurring in early March relating to the daughter, X.
Under the heading “Income” in her affidavit, the mother says that since 1996 she has been trading as a sole trader under the name Company O. She refers to her Notice of Assessment and tax returns for the financial years ending 2017, 2018 and 2019, in which her taxable income was nil.
At the time of affirming the affidavit on 15 April 2021, the mother was in receipt of JobKeeper and asserted that the last payment was to have been made on 14 April 2021.
She says that during the marriage she was financially reliant upon the husband’s income and she never generated sufficient income herself to meet her living expenses and the expenses of the children. She was primarily responsible for the role of homemaker and parent for the children.
She says that the husband is employed as a Professional at Employer P, and she asserts a salary package, but I will go to the husband’s evidence in relation to that as it is consistent.
The mother says that in December 2019, the husband received a bonus payment of $55,551 producing a net amount of $29,443 which was deposited into the husband’s ANZ account on 17 December 2019. She asserts that similarly in December 2020, the husband received a bonus of $54,517, giving a net payment of $28,933 deposited into his account.
She says the husband’s taxable income for financial year 2017 was $236,043, for 2018 was $256,027, for 2019 was $258,566, and for 2020 was $260,000.
She then says in paragraph 106, that each financial year the husband receives a tax refund. In 2017 he received $10,000, in 2018 he received $13,365, in 2019 he received $16,911, and in 2020 he received $15,000.
The mother says that following separation, on 5 January 2021, the sum of $46,875 was withdrawn from the husband’s ANZ account and applied to the purchase of a Motor Vehicle 1. The husband traded in a Motor Vehicle 2 he had owned prior to separation for a trade-in of $6000 on the purchase.
The mother then goes back to the financial arrangements between herself and her parents as co-occupants of the Suburb C property, and says that since late 1998 her parents have paid one third of the water usage costs. She says that since 2017, her parents have paid one third of the electricity accounts.
She again asserts that she is not paying any other expenses in relation to her parents or for any of their groceries – they meet their own living expenses. They assist the wife with some of her living expenses.
The mother says that the phone service at the property is from Optus and each month the average bill is $415. The users are the mother and the two children.
She says that each quarter, the water rates from Sydney Water are approximately $340.
She says that the electricity bill received by her for the period 22 November 2019 to 20 February 2020 was $1706.35. The bill for the period 25 November 2020 to 22 February 2021 was $1155.78.
She says that she has borrowed $6500 from her parents since separation and the sum of $7000 from her sister and brother-in-law, Mr & Ms Q. She says on average, her sister and brother-in-law gift her between $400 and $500 per month with cash to assist with living expenses.
In mid-March 2020, the wife made an Application for a Child Support Administrative Assessment. She received the first payment on 11 May 2020 and the current assessment is $1214.83 per month. That concurs with the evidence from the husband.
The mother says that on 9 April 2021, the husband was in arrears of Child Support in the sum of $3864.97 and she annexes as annexure C to her affidavit documents from the Child Support Agency in relation to the assessment and in relation to the arrears.
The mother asserts that she has borrowed a total of $6000 from her family. That evidence would seem to conflict with the evidence given earlier in paragraphs 127 and 128 of her affidavit.
In paragraph 149, the mother says:
I do not have the funds or means to meet my legal fees and have resorted to legal funding. I have entered into an agreement with R Finance to pay my legal fees to Sommerville Legal. This is capped at $40,000.

In paragraph 150:
R Finance has paid a total of $39,434 on my behalf. I owe this money to R Finance. I pay monthly interest of 1.5 per cent on this amount, which is currently around $600 per month. I cannot afford to continue to use R Finance, however at the same time there will be disadvantage for me if I do not have legal representation.
The mother says her outstanding legal fees to her solicitors are $2055.
The mother asserts in July 2020 that the husband had paid $18,675 in legal fees to his solicitors, Fox & Staniland, since separation.
The mother says that her parents are paying for the lawn mowing at the Suburb C property to help her out and they continue to make their contributions to electricity and water usage.
Ms D is still living at home, was off university for the second half of 2020, and had limited work – I have no evidence in relation to the nature of her work – due to the COVID-19 restrictions. The mother asserts that all of Ms D’s basic living expenses are paid for by the wife, except for Ms D paying for her own petrol, car insurance, and road tolls.
The mother asserts in paragraph 164:
When X was discharged by the OSCA team that was supporting her with her mental health, she refused to go and see her previous private clinician as she said to me, “I don’t want you to have the added expense”.
She asserts that she responded to X:
I have sufficient money to meet that expense as it is partially refunded by Medicare and health insurance.
The mother asserts that she has problems with her mobile phone and cannot afford to update it.
The mother asserts she has not been able to take their dog to the vet to be desexed as she cannot afford it, and she is unable to have the two dogs vaccinated, which would be a cost of $1500.
The mother says she ceased receiving physiotherapy treatment for her right shoulder as it was becoming too expensive. The cost of each session was $120. The last session she attended was in around October 2020. Prior to separation, she was receiving physiotherapy treatment once or twice a month.
In paragraph 169 of her affidavit, the mother says:
Since May 2020 ... and the challenges of COVID ... I have been focusing on X’s care and welfare to ensure her ongoing safety from self-harm. She needs me for support, which appears will be an ongoing need, even beyond turning 18 years of age.
X continues to depend on me.
In the mother’s Financial Statement, simply reciting that evidence without going into analysis of it at the moment, the mother asserts an income from a combination of rent from an investment property in Suburb S and an investment property in Suburb F, and Child Support received from the father, to a total of $1549, and no other source of income.
She asserts that her expenses, being a combination of what she affirms to in part G of the document and part N of the document, go to a total of $5499. Included in that are various expenses included in part N by the wife under the heading ‘For Children’.
As I will come to, there is a question on the evidence as to whether or not the mother does in fact receive the rents from her Suburb S and Suburb F investment properties. There is also a question on the evidence as to whether the mother does in fact pay funds toward the loan account secured by way of mortgage on the Suburb S property, and the loan account secured by way of mortgage on the Suburb F property.
The mother, in part I, gives detail of her estimate of values of property owned by her, and as relevant for this matter, she asserts in item 37 that she has a credit balance of $1463 in a Westpac Bank account in her sole name.
She asserts a nil value for the business she conducts as a sole trader under the name Company O.
In relation to liabilities, the mother refers to the loan accounts secured by way of mortgage on the Suburb F and Suburb S properties. She asserts the debt to R Finance in $39,000, and loan from Mr & Ms U, her parents, in the sum of $6500. The mother does not assert any amount for a loan from her sister and brother-in-law, Mr & Ms Q.
The mother does not assert that she has any financial resources, or that there has been disposal of property by her, as required to be disclosed by the Rules.
In relation to the husband’s evidence, he says in paragraph 12 of his affidavit that the wife has an ABN, pays her BAS statements, and actively advertises her business in the community, mostly online, participates in a number of exhibitions (selling her products and taking new orders from customers) throughout the year, as well as teaching private students. He annexes material relating to those advertising activities and so forth to his affidavit.
In his evidence, and without going into the analysis yet, the husband asserts in his affidavit that he has a current take-home pay each month of $11,800, and he annexes to his affidavit as annexure B his pay advice slips, which indicate payments monthly, with a gross monthly pay of $19,952.83, from which is deducted his Child Support payment of $1214.83 and tax of $6938 on a consistent basis.
There is also a superannuation guarantee payment paid to Arden Super Fund in the sum of $1895.50. That superannuation guarantee payment does not come out of the amount of $19,952.83, but rather after the deduction of the Child Support and tax, it leaves the net pay received by the husband of $11,800 per month.
The salary package is stated as being $262,180, which sum, on the simple mathematics, does include the superannuation guarantee amount.
The husband has attached his pay advice slips for the periods ending 31 December 2020, 31 January 2021, 28 February 2021, and 31 March 2021. I will make further comment about those in due course on the analysis of the financial means of the parties.
The husband asserts that $11,800 per month net pay is $2723 per week.
In paragraph 26 the husband says the following, and it is important that it be recited in full in the evidence:
I also received a net rental income from the investment properties, including those in Ms Arden’s name. The total rental income from the three investment properties is $1604 per week. This is the gross rent, less particular expenses such as rates, levies, utility bills, strata fees, and agency fees. This is broken down in part O of my financial statement. This is occasionally reduced based on repairs required to the investment properties.
The husband says in paragraph 27 that he continues to meet the mortgage repayments required, by which he means the payments on the loan account secured by way of mortgage on the investment properties.
The investment properties are a property on E Street, Suburb F, in the husband’s name, a property on W Street, Suburb S, in the wife’s name, and another property on E Street, Suburb F, in the wife’s name.
He says that the payments on the loan accounts as required are a total of $2873 per week. The rental income of $1604 is insufficient to meet the mortgage repayments, with a shortfall of $1269 per week. The husband says that he meets this from his weekly salary payment from work, leaving $1454 to meet his expenses.
The husband refers in paragraph 3 to some of those expenses, and to the expenses set out in part G and part N of his financial statement.
He confirms some evidence from the wife that in December 2020 he received a year-end bonus of $28,933 net from his employer, and on 28 January 2021 he received a supplementary bonus of $26,501 net from his employer. An analysis of the pay slips confirms that evidence.
The husband says he applied some of those bonus payment funds toward the acquisition of the new motor vehicle, having traded in his previous motor vehicle for $6000. He gives evidence as to why it was necessary to change vehicles. The balance of the funds appear in his bank account.
In paragraph 59 the husband says:
X has experienced ongoing mental health issues.
He says:
X has been spending time with me periodically from the start of the year, where she has stayed with me some nights or we’ve had dinner together.
He says:
X is attending school regularly and spends a lot of her time with her friends or in my care.
The father asserts in his evidence, without presenting any expert evidence in that regard, that X’s mental health circumstances have improved over recent times.
Annexure C to the husband’s affidavit, which he refers to in paragraphs 41 and 42 of his affidavit, is a table that he has assembled:
that summarises the rent received from the investment properties, the associated expenses, interest accrued on the mortgages, and the mortgage repayments made by me. This is occasionally reduced based on repairs required in the investment properties.
He asserts that the source documents used to assemble that document, “have been provided to Ms Arden’s solicitors by way of disclosure”, thereby asserting that annexure C is a summary document of voluminous material under section 50 of the Evidence Act 1995 (Cth).
In the husband’s financial statement – once again, taking it on the basis of the evidence contained therein, not yet analysed for the purpose of the issues – the husband asserts a weekly salary, before tax and other deductions, of $4604, and he asserts a rental income of $1604 for the Suburb F property in his name, and the Suburb S and Suburb F properties in the wife’s name.
He includes there the superannuation guaranteed payment of $437 per week and his bonus income, which he refers to as:
I am sometimes entitled to lump sum discretionary bonus from time to time, the amount varies.
In part O of his financial statement, without stating amounts, though I note that I read through the amounts of the net sums received as bonuses in late 2020, early 2021, by the husband.
He asserts, therefore, that he has a total weekly gross income of $6645. He then sets out his expenditure in part G and part N of the document.
In part G he sets out income tax, $1734 per week, and the payments made by him on the loan accounts secured by mortgages on the investment properties at Suburb F, Suburb S and Suburb F, and in relation to the property occupied by him, which also has a loan account relating to purchase, secured by way of mortgage on the property, and which is on Y Street in Suburb F.
In adding those amounts together, he asserts weekly payments on the loan accounts secured by way of mortgage on properties of $2487, and then he asserts a total of rates, unit levies, and so forth, paid in relation to the various properties, of a total of $637.
The husband asserts overall, and including some expenses included by him in the column “For children” in part N of the document, presumably relating to X, weekly expenses of $6947, being on its face an excess of expenses over income.
The husband says in part I of his affidavit, item 37, that he has a bank account with ANZ in his name with a credit balance, as at the time of swearing or affirming the financial statement, of $29,397.
In relation to his liabilities, he recites the two loan accounts secured by way of mortgage; one on the Y Street, Suburb F property, the other one on the E Street, Suburb F property in his name. He recites a credit card liability with ANZ Rewards Platinum of $1200.
He asserts that there are no financial resources available to him and that there has been no disposal of property required to be reported in part M of the document; that is, a disposal of property since separation. Though, on the evidence, including his evidence, a disposal of a motor vehicle with the trade-in value of $6000 should have been included there.
In part O, the husband sets out the material that he referred to in part D of his document in relation to rental income, and given the amounts asserted there, to be weekly rental for the property, each one is in an amount going to cents; for instance, for the E Street, Suburb F property, $576.11, the Suburb S property, $469.59, the Suburb F property, $558.28. Those added up, and when rounded, go to the amount of $1604. One takes it that, as they are expressed, they are the net figures after, as the husband said in paragraph 26 of his affidavit, payment of expenses such as rates, levies, utility bills, strata fees, and agency fees.
The tenor of the submissions made by Ms Spain on behalf of the mother were that on the evidence, the mother was not able to support herself adequately and that the father had the ability to contribute toward the mother’s maintenance.
It was submitted on behalf of the mother by Ms Spain that the mother is hampered from engaging in paid employment in the workplace by the requirement that she be available to care for X, particularly given X’s special needs, going to her mental health issues. She asserted that on the evidence, X needs close supervision due to the risk of X self-harming.
Ms Spain also adverted to evidence contained in the mother’s affidavit, which I have not summarised in these reasons, but which the mother sets out in her affidavit at paragraphs 74 through to 88, of the care provided by her for the husband’s mother during the period of the parties’ cohabitation, and she asserts that that evidence indicates that it had an effect on the mother’s ability to engage in appropriate gainful employment in the employment marketplace post-separation.
Ms Spain in her submissions gave some analysis of the evidence presented by the father in relation to his financial position, and most particularly, in relation to some of the matters contained in part N of his financial statement, such as the amounts that he asserts are spent for household supplies for himself and for X, for hobbies and entertainment for himself, for holidays, for home cleaning, repairs, dry cleaning, and for gifts, amongst others.
In her submissions on behalf of the husband, Ms Beck asserted that the mother’s ability to provide for her needs was not clear, due, she submitted, to a lack of sufficient evidence of the mother in relation to attempts by her to engage in appropriate gainful employment, or lack of, or contradictory evidence in relation to income that is being derived or could be derived by the mother from the conduct by her of Ms Arden’s business.
Ms Beck made a submission in relation to the mother’s assertion that that business was of nil value, but that has little to no effect on the issue before the Court, where the considerations are only those under section 75(2). But, in any case, to assert that the business must have a value because historically there was an assertion that there was an amount of about $25,600 being held for stock, misconceives the nature of the valuation of a business. It is not simply assets minus liabilities, there is also such considerations as allowance for an income for the person operating the business, which can lead to a business holding assets over liabilities still having a nil or negative value.
Ms Beck referred to certain matters in the mother’s financial statement, both in part G thereof, and in part I, and in part M. In relation to part G in particular, Ms Beck referred to item 27, where the mother affirmed that she had an expense of an estimated $105 in relation to registration of her Motor Vehicle 2. Simple mathematics would tell us that $105 per week would be $5460 per year, and that would seem a sum fairly excessive in relation to motor vehicle registration – motor vehicle insurance being found in a different part of that document.
Ms Beck pointed out that in part M of the mother’s financial statement, she had not indicated that she disposed of any property post-separation, as required by Rule 24.03(1)(e) of the Federal Circuit Court Rules 2001. She said that the evidence presented in the husband’s case gave inference that the mother must have operated, in some way, the business and therefore made sales in relation to the business and also in relation to any dividends received on Company Z shares.
The mother does not refer to any Company Z shares in her financial statement relied upon in the proceedings. She does not refer to any sale or disposal of those shares. Of course, on the other hand, there is the evidence from both parties of the husband’s disposal of a motor vehicle for $6000 post-separation, and there is no reference to that compliant with Rule 24.03(1)(e) in his financial statement.
In relation to the mother’s day-to-day care of X, Ms Beck referred to the evidence presented by the husband asserting that X’s situation in relation to her mental health had improved. As I have already said, there is no expert evidence from either party, but there is the evidence from the mother of the very drastic self-harm and suicidal attempt matters affecting X in the past couple of years.
In her submissions, Ms Beck also referred to certain documents in the tender bundle provided to the Court, and those documents became exhibits R1, R2, R3, R4, and R5. I have given attention to those documents in relation to the analysis of the financial situation of each of the parties.
Similarly, in relation to the tender bundle documents admitted into evidence on behalf of the mother, I have given attention to exhibit A1, and also exhibit A2, admitted into evidence during Ms Spain’s submissions in reply.
In relation to the law that applies in consideration of interim spouse maintenance matters, section 72 of the Act sets out the basis on which a party to a marriage is liable to maintain the other party, or conversely, the basis on which the party to a marriage has the right to be maintained by the other party. I set out section 72 in these reasons:
Section 72 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).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
Section 74 of the Act provides the Court’s powers in relation to spousal maintenance proceedings, and I set out the whole of section 74 in these reasons:
Section 74 Power of court in spousal maintenance proceedings
(1) In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
(2) If:
(a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b) either of the following subparagraphs apply to a party to the marriage:
(i) when the application was made, the party was a bankrupt;
(ii) after the application was made but before the proceedings are finally determined, the party became a bankrupt; and
(c) the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the interests of the bankrupt's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the bankruptcy trustee as a party to the proceedings.
(3) If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.
(4) The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances.
(5) If:
(a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b) either of the following subparagraphs apply to a party to the marriage (the debtor party ):
(i) when the application was made, the party was a debtor subject to a personal insolvency agreement; or
(ii) after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and
(c) the trustee of the agreement applies to the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the interests of the debtor party's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the trustee of the agreement as a party to the proceedings.
(6) If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement.
(7) The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances.
(8) For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when:
(a) the application is withdrawn or dismissed; or
(b) an order (other than an interim order) is made as a result of the application.

As referred to in section 72, section 75(2) sets out the matters, and the only matters, to be taken into account by the Court in exercising jurisdiction under section 74. That is a reference to the concluding words of section 72(1), which sets out the basis of the Court’s consideration of spousal maintenance matters, and says:
having regard to any relevant matter referred to in subsection 75(2).
I set out the whole of section 75(2) in these reasons:
Section 75 Matters to be taken into consideration in relation to spousal maintenance
…
(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 of 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 to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
…
I also note section 75(3) that provides:
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.
I note judgment of the High Court of Australia in Hall & Hall (2016) FLC 93-709, particularly in paragraphs in paragraphs [3] to [10] inclusive, and paragraphs [52] to [58] inclusive, and I incorporate each of those paragraphs into these reasons along with original citations:
The spousal maintenance provisions
[3] Part VIII of the Family Law Act governs, amongst other things, spousal maintenance. The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section provides that "[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 … having regard to any relevant matter referred to in [s] 75(2)".
[4] The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That sub-section provides that, "[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part".
[5] A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters[1]. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as "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". They also include, by virtue of s 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".
[1] Section 75(1).
[6] A court in exercising its powers under Pt VIII may "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"[2]. The power to make the second or last of those forms of order – an order pending the disposal of proceedings or an order until further order – is within the general power conferred by s 74(1). Such an order has now long been referred to, in nomenclature which has come to receive statutory confirmation[3], as an "interim order" as distinct from a "final order".
[2] Section 80(1)(h).
[3] Section 74(8)(b).
[7] It was established at an early stage in the history of the Family Court that the power to make an interim order under s 74(1) is separate and distinct from the power to make an urgent order that is separately conferred by s 77[4]. Section 77 allows the court to "order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable" if a two-part condition is met. First, it must appear to the court that a party to the marriage "is in immediate need of financial assistance". Second, it must be "not practicable in the circumstances to determine immediately what order, if any, should be made".
[4]           In the marriage of Pritchard and Pritchard (1982) FLC ¶91-286 at 77,615.
[8] Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant[5]. No doubt, on an application for an interim order "[t]he evidence need not be so extensive and the findings not so precise" as on an application for a final order[6]. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).
[5]           In the marriage of Redman and Redman (1987) FLC ¶91-805 at 76,081.
[6]           In the marriage of Redman and Redman (1987) FLC ¶91-805 at 76,081.
[9] If an order with respect to the maintenance of a party to a marriage is in force, whether that order be an interim order or a final order, a court has power under s 83(1)(c) to "discharge the order if there is any just cause for so doing". An order discharging an order may be expressed to be retrospective to such date as the court considers appropriate[7]. For the purpose of considering the exercise of the power to discharge an order, the court is specifically required to have regard to ss 72 and 75[8].
[10] It was again established at an early stage in the history of the Family Court that an applicant for discharge of a maintenance order can seek to satisfy the court that the party in receipt of maintenance does not meet the threshold requirement of s 72(1), but that the requirement of s 83(1)(c) that there be "just cause for so doing" imports a need for the court to be satisfied of circumstances which justify the court considering that threshold requirement again[9].
…
[52] The wording of s 72(1), it has been noted[10], seems to imply that each party should attempt to support himself or herself where that is reasonable having regard to the matters referred to in s 75(2).
[53] The matters referred to in s 75(2)(b) are matters which bear on the practical ability of one party to support the other, and of the other party to support himself or herself. Hence the concluding reference is to the matter of "the physical and mental capacity of each of them for appropriate gainful employment". Hence also the opening reference to the matter of "the income, property and financial resources of each of the parties" cannot be confined to the present legal entitlements of the parties.
[54] The reference to "financial resources" in the context of s 75(2)(b) has long been correctly interpreted by the Family Court to refer to "a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency"[11]. The requirement that the financial resource be that "of" a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee's discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation[12].
[55] Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.
[56] Here, on the Full Court's finding of fact, the annual payment from the Group was a financial resource of the wife so as to be a matter within s 75(2)(b). The payment was available to her if she asked for it. The availability of the payment was the subject of specific provision in the father's will. The making of the payment was at least a moral obligation of the wife's brothers, who were in any case well-disposed towards her.
[57] Section 75(2)(o) plainly extends to any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account as showing that a party to the marriage is or is not able to pay spousal maintenance or is or is not able to support himself or herself. The paragraph has accordingly long been correctly interpreted by the Family Court as permitting consideration by a court of "all of the financial matters which are relevant to [a] particular case"[13]. Nothing in the language or structure of s 75 prevents a fact or circumstance which falls within s 75(2)(o) being also a fact or circumstance which gives rise to a matter under another paragraph of s 75(2), including s 75(2)(b).
[58] Because it bore centrally on the ability of the wife to support herself adequately, the availability to the wife of the annual payment from the Group was also a fact or circumstance in respect of which it was open to the Family Court to form the opinion that the justice of the case required that it be taken into account. The analysis of the Full Court shows that it formed that opinion. There was thus, in addition to a matter within s 75(2)(b), a matter within s 75(2)(o).
[7] Section 83(6).
[8] Section 83(7).
[9]           Astbury v Astbury (1978) 4 Fam LR 395 at 397-398.
[10]         Astbury v Astbury (1978) 4 Fam LR 395 at 398.
[11]         In the marriage of Kelly and Kelly (No 2) (1981) FLC ¶91-108 at 76,803.
[12]         In the marriage of Kelly and Kelly (No 2) (1981) FLC ¶91-108 at 76,803.
[13]         In the marriage of Beck and Beck (No 2) (1983) FLC ¶91-318 at 78,167.
In the case of In the Marriage of Redman (1987) 11 Fam LR 411, the Full Court said:
…on an application for interim maintenance the Court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson v Williamson [1978] Fam CA 57, [1978] FLC 90-505; 1978 4 Fam L.R. 355 at FLC p. 77,650; Fam. L.R. p. 453 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the Court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.
There is no fettering principle that the pre-separation standard of living must automatically be awarded, and reasonableness in the circumstances is the guiding principle.
In Maroney & Maroney [2009] FamCAFC 45, Coleman J said at paragraph 56:
The “capacity” to meet an order for interim spousal maintenance is not confined to income. Once a party, such as the wife in this case, establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.
Relevant in this matter is what was said in In the Marriage of Vautin (1998) 23 Fam LR 627, per Fogarty and Burton JJ, at paragraph [42]:
Maintenance is a term of wide meaning directed to various forms of provision for the support of a spouse or child ... In making the order which is appropriate in that context, the Court may make a periodic order or lump sum order or a combination of both and/or make any other orders of the kind referred to in section 80(1).
Then in paragraph 43:
…in the exercise of the power to order lump sum maintenance ... It may be ordered, amongst other reasons, to meet non-periodic expenditure for the maintenance of that person where there is an established need and a capacity to pay. It is not confined to cases of the capitalisation of periodic maintenance and/or where periodic maintenance is unlikely to be paid because of concerns about the capacity or willingness of the liable parent to pay (as passages in the judgment in Clauson and Clauson (1995) FLC 92-595 at pp. 81,907 and 81,908 may suggest) or to cases where the need for or the capacity to pay periodic maintenance is demonstrated.
The task of deciding a spousal maintenance case, interim or final, involves three questions, with a “yes” answer required to the first question before the Court can pass onto the second question, and a “yes” answer required to the second question before the Court can pass on to the third question.
The first question is:
Does the applicant for spousal maintenance order have a need?
Put simply, the test is to assess the applicant’s relevant income (bearing in mind section 75(3) of the Act) and the applicant’s reasonable, necessary, and unavoidable living expenses. If the applicant’s said expenses are less than or equal to the applicant’s relevant income, the applicant does not have a need – a “no” answer – and there the matter ends. If the applicant’s said expenses are in excess of their relevant income, the applicant has a need – a “yes” answer – and one goes on to the second question.
The second question is:
Does the respondent have a capacity to pay?
The test is the same – assess the respondent’s income, and the respondent’s reasonable, necessary, and unavoidable living expenses. If the respondent’s income is the same as or less than the respondent’s said expenses, the respondent does not have the capacity to pay – a “no” answer – and there the matter ends. If the respondent’s income is in excess of the respondent’s said expenses, the respondent has a capacity to pay – a “yes” answer – and one goes to the third question.
The third question is, of course: how much of the respondent’s excess of income over expenses should the Court order the respondent to pay to the applicant to assist the applicant with his or her excesses of expenses over income.
As I said, my description of the test for question 1 and 2 is put simply, and in each case all of the relevant matters under section 75(2) of the Act, and only those matters, must be taken into account, including any question relating to “earning capacity” of either party if asserted by the other party to be greater than the party’s income. As section 75(2)(b) does not refer to “earning capacity” (unlike subsections (h), (j), and (k)) it is properly to be taken into account under section 75(2)(o). In that regard, reference is made to In the Marriage of DJM and JLM (1998) 23 Fam LR 396.
Accordingly, I turn first to the question set under section 72 as to whether or not the wife is unable to support herself adequately, whether by reason of having the care and control of a child of the marriage who has not attained 18 years of age, by reason of age or physical or mental incapacity for appropriate gainful employment, or for any other adequate reason. In that regard, I must have regard to, and only to, those matters set out in section 75(2).
Section 75(1) mandates that in exercising the jurisdiction of the Court under section 74, to make orders consequent upon section 72:
The Court shall take into account only the matters referred to in subsection (2).
The wife at the time of the interim hearing was 49 years of age. She gives evidence in her affidavit that she does not have physical disabilities other than a shoulder injury for which she was receiving physiotherapy, but now due to financial circumstances is no longer. But, self-evidently, on the evidence, that injury has not, in the past, prevented her from conducting her business.
She also asserts that she requires counselling in relation to lived experiences by her during the marriage. I make no finding that the asserted lived experiences of the wife in relation to matters going to asserted family violence and so forth have occurred, because I am not in a position to make those findings on this interim basis, but I have regard to that, as I said before, in relation to the wife’s assertion in relation to her income, and any consideration later on under 75(2)(o) of her earning capacity, and in relation to her assertion of a requirement for income to support expenses in relation to counselling and physiotherapy.
The income, property, and financial resources of the wife are as set out in her financial statement, and I will go firstly to that.

On the evidence, it would seem that although the wife refers in part D in relation to her income, to have the income from the rental income from the Suburb S investment property and the Suburb F investment property in her name, on the husband’s evidence it would seem that he receives the rental income from those properties. The wife may have included it in her financial statement on the basis that, in law, it is her income, the properties being in her name, and accordingly she is liable for that income in consideration of any taxation consequences.
The wife says that she receives $279 as Child Support per week, and the wife asserts in her financial statement that she does not receive any other income.
Accordingly, if, as is asserted on the face of it, the wife receives rental income from the two investment properties and from Child Support, then her income is $1549. However, if I leave out the Child Support, for reasons I will go into as I go on, of $279 a week, the income of the wife would be $1270 per week, being her rental income.
However, if, as seems to be the case on the evidence, the wife does not actually receive that income, just as I will comment shortly it would seem on the evidence she does not make the payments secured by mortgage on those properties, then her income, leaving aside Child Support, would be nil.
In relation to the wife’s personal expenses referred to in part G of her financial statement, once again, on the evidence there is cause to doubt that she does herself pay the $604 per week payable on the loan accounts secured by mortgage on the Suburb S property, and the $551 per week payable on the loan account secured by mortgage on the Suburb F property.
In relation to item 27, motor vehicle registration, she asserted an amount of $105 per week, I refer to the submissions made by Ms Beck on behalf of the husband in that regard, and an amount of $5460 per year for motor vehicle registration would seem certainly to be excessive. In that regard, if I allow an amount of $20 per week, being a yearly amount of $1040, I do not know what the relevant payments are on the Motor Vehicle 2 for registration and part and parcel of registration is compulsory green slip, but the wife has put that in a separate item in her expenses in item 26 at a cost of $9 per week.
So in calculating the wife’s need in this matter and her expenses relating to need, I have taken out the sum of $105, and reduced that, and allowed a sum of $20 only.
We then go to part N, in which the wife groups together in item 32 a total of all other expenditures in the sum of $4060. She has a column for herself and a column “For children”, without specifying if those expenses relate only to X, or relate to X and the parties’ adult daughter, Ms D, who the wife gives evidence is entirely financially dependent on her, except for her expenditure on petrol, road tolls, and car insurance.
Taking the items one by one, in relation to the items, I will deal with both columns and then deal with the columns individually as a total.
In relation to the item for food, at $200 for the wife and $375 for the children, the wife has given evidence that she is responsible for the expenses listed here, except for motor vehicle expenses and toll expenses for Ms D. I accept those amounts, just as I do for household supplies.
However, for house repairs, the wife says $100 per week. That would be $5200 per year, and I consider that excessive in all the circumstances. The wife will continue to reside in the Suburb C property and there being no evidence in relation to requirement for repairs, I reduce that to an amount of $40 per week.
Similarly, with electricity, the wife asserts that she pays the electricity at $62 per week for herself and $123 per week for the children. She says that the most recent electricity bill was $1156 and she gives evidence that her parents pay for one third of that; therefore, two thirds of the electricity bill would be $770. If you divide that by 13, being 13 weeks in a quarter of the year that would be $60 per week. So, a total per week of $185 would seem to conflict with the wife’s own evidence in that regard, and accordingly I will allow an amount of $20 per week in relation to the wife and $40 per week in relation to the children.
Further down in the children’s column for clothing and shoes, the wife asserts an estimated amount of $325 a week, which would be $16,900 per year. I regard that as excessive in relation to a spousal maintenance assessment. Accordingly, I allow an amount of $100 per week, or $5000-odd a year.
In relation to medical, dental, optical, not including health insurance requirements, the wife puts down an amount of $245 a week. On the evidence she has presented in her affidavit in relation to her counselling and physiotherapy medical needs, I allow that amount, given that she has indicated that the cost in relation to counselling alone would be a sum of about $450 a quarter for one counselling practice and $240 per week in relation to another. The amounts that she seeks for the children is estimated at $500 a week, and given the amount set out in her evidence of the costs associated with the care she seeks to be provided for X – $450 a quarter and $240 a week – I allow an amount of $275 a week there for the children.
In relation to entertainment and hobbies, I consider the amount of $100 for the wife and $250 for the children to be excessive in relation to an interim spousal maintenance assessment. I allow an amount of $50 for the wife and $100 for the children.
In relation to education expenses, the wife asserts an amount of $100 per week for the children, but she presents no evidence in relation to education expenses. I may be in error, but I do not recall the wife presenting any evidence in relation to X’s schooling, education costs and so forth. The father mentions in his affidavit evidence in paragraph 71 that X is attending school regularly. In the children’s column, I disallow that $100 per week.
In relation to gardening and lawn mowing, the wife asserts an amount of $25 a week, but in her affidavit evidence she has indicated that her parents pay a sum of $100 per month for the gardening and lawn mowing, so I disallow that $25.
In relation to repairs, furnishings, and appliances, the wife has provided an amount of $105 per week for herself, being $5460 a year. I find, without any evidence of particular need, that is excessive, and I allow the amount of $40 per week.
In relation to other necessary commitments, the wife asserts an amount of $360 for herself and $110 for the children, which refers to part O, in which she sets out some other items paid and amounts paid for the benefit of the children and so forth. The first one is tolls, for which she pays $40, for the benefit of the children it is $55, but I have no means of knowing if that $55 relates to X only, and if so why that would be in excess of the $40 allowed for the wife, and she has given in her evidence that Ms D looks after her own tolls. On that basis, while I allow the $40, I do not allow the $55 for the children.
In that table in O, she refers to veterinary expenses for her at $45 a week – that is $2340 a year. I will allow only $20 on the basis of her affidavit evidence.
In relation to accountancy costs, she refers to $80 a week, but she has presented no evidence in relation to specific accountancy costs relating to the conduct of her business. She refers to her business as not at the current time operating, and so I have reduced that to $50 per week.
Accordingly, the amount that I have accepted from that table in part O of the wife’s financial statement for herself is reduced from $360 to $305 and for the children is reduced from $110 to $55.
Accordingly, I find that the total of the column for the wife in part N of her financial statement is reduced from $1664 to $1367. The amount for the children is reduced from $2546 to $1808.
However, in assessing the necessary and unavoidable living expenses, and I use that phrase with a reference to the old case of Mee & Ferguson (1986) FLC 91-716, I am taking an approach where I do not take into account as part of her income the Child Support payments she received, and I am not taking into account, in relation to her expenses, the expenses she asserts in relation to “for children”, the Court not able to ascertain how those expenses divide up, if they divide up at all, between X, who is a child under 18, and therefore to be taken into account under one head of section 75(2), or if they relate in part to Ms D, who is an adult child, but nevertheless to be taken into an account under section 75(2)(e):
the responsibilities of either party to support any other person.
I am confining myself in this analysis in relation to whether or not the wife has the ability to support herself adequately, to her expenses.
Accordingly, in combining what I have found to be appropriate in part N with what I have found to be appropriate in part G of her financial statement, and keeping in mind the whole of her evidence in her affidavit, and submissions made in the matter, I find that the wife’s expenses are in the sum of $2721 per week, if she does, in fact, make contributions toward the payments of the loan accounts secured by a mortgage on the investment properties in her name, or $1533 per week if she does not make those contributions towards the payments.
Accordingly, on the basis, as would seem to be the case on the face of the wife’s financial statement, and not contradicted in the evidence in her affidavit, that she both receives the rental income from her two investment properties and pays toward the loan accounts secured by mortgage on those properties, her income would be $1270 per week, and her expenses would be $2721 per week, being a shortfall by excess of expenses over income of $1451 per week.
However, if, as seems to be the case on the whole of the evidence, and in that regard I refer to the evidence of the husband, the wife both does not receive the rental income from her investment properties and does not pay toward the loan accounts secured on those properties, then I would find that her income is nil and her expenses are $1533, leaving an inability to support herself by reason of expenses exceeding income by $1533.
In relation to the next consideration as to whether the wife has the care and control of a child of the marriage who has not attained the age of 18 years, on the evidence, the wife has primary care and control of the child, X, who is 17 years of age, turning 18 years of age this year. X has, on the evidence of both parties, serious and severe mental health issues which have led her in the past to actions that have put her life in serious danger. To say that nothing may have happened in the immediate past in that regard does not, of course, say that it could not recur at any time in the future, and I have no expert evidence to make a judgment any further in relation to those matters.
The wife refers to the need for X to have constant supervision. I do not have evidence in relation to X’s school attendance, bar the bare assertion made in the father’s affidavit in paragraph 71 that she attends school regularly. I do not know how much she is at home and how much she is away from home. The father asserts that X is in his company quite a bit of the time, though not on overnight occasions.
I have the mother’s evidence that for several years past she has had no taxable income, and therefore she has not been able to raise any taxable income from her business, and on the state of the evidence, and there being conflicting evidence between the parties in that regard, I am not able to make a finding that the wife is deriving income undisclosed by her.
In relation to the commitments of the wife necessary to support herself and a child who she has a duty to maintain, taking ‘child’ to refer to X, I have gone through that detail and made relevant findings in relation to her evidence in her affidavit and her financial statement.
In relation to the responsibility of the wife to support any other person, the mother gives evidence that she supports Ms D. The father, in his evidence, gives some evidence to the contrary, but I find on the state on the evidence, even where it conflicts, that on this interim basis, I must regard the mother as being the principal financial support of Ms D, though to what extent I cannot tell,. As I have already said, I am unable to disentangle the asserted expenses in the wife’s financial statement “for children” as between X, as a child, and Ms D, as an adult person the wife may be responsible to support, but as I have already said, the approach I am taking in assessing the mother’s ability to adequately support herself is that I am disregarding expenses asserted to relate to either Ms D or X and giving attention only to the mother’s expenses.
On the evidence, the mother does not have eligibility for or receive any pension, allowance, or benefit under the law of the Commonwealth, any state or territory, from a Superannuation Fund, or any other country.
In relation to her standard of living, the evidence of the mother indicates that her standard of living is now below what she enjoyed during the period of the parties’ cohabitation, but I am also cognisant of the authorities that I referred to earlier. The authorities do not require that these matters be considered on the basis that a party has an entitlement to be raised to a standard of living that they enjoyed during the period of the parties’ cohabitation. In that regard, I refer to what fell from the Court in Bevan & Bevan (1995) FLC 92-600, and as I have already quoted from, In the Marriage of Redman (1987) 11 Fam LR 411.
I have no evidence on which I can make an assessment of the extent to which any order for payment of spousal maintenance by the husband to the wife would increase her earning capacity, by enabling her to undertake a course of education or training or establish herself in a business or otherwise obtain adequate income. The case being presented by the wife is that the sum sought by her by way of periodic spousal maintenance is to enable her to cover necessary and unavoidable living expenses, which are being covered at the moment by money lent to her or gifted to her by relatives, or is not being covered at the moment, and so I cannot make any assessment in relation to section 75(2)(h) of the Act.
I have no evidence that leads me to believe that any proposed order as sought by the mother for spousal maintenance, either periodic or on a lump-sum basis, would have an effect on the ability of a creditor of a party to recover the creditor’s debt. The only creditors referred to are the mother’s R Finance debt, her debt to relatives, and on the father’s side, his credit card. I find there is nothing to be considered in relation to section 75(2)(ha) of the Act.
In relation to 75(2)(j), the extent to which the mother has contributed to the income earning capacity, property, and financial resources of the husband, on the evidence before me, during the period of the parties’ cohabitation from 1995 to November 2019, the husband was the primary breadwinner and primary provider of income to the family, whilst the mother was principally responsible for the homemaking and parenting role. Accordingly, that left the husband free to engage in appropriate gainful employment to develop his work skills, his employability, and his value to employers in the employment marketplace.
That consideration, appearing in section 75(2), and leading to that finding, then leads in favour of an order for spousal maintenance being made in favour of the mother, if need and then capacity to pay is found.
In relation to the duration of the marriage and the extent to which it has affected the earning capacity of the wife, the same considerations I have just outlined in relation to the wife’s contribution to the husband’s income-earning capacity and so forth apply here in that the wife being principally responsible for the homemaker and the parenting role through the period of the parties’ 24-year cohabitation affected her value in the employment marketplace. Therefore, any consideration of her earning capacity under 75(2)(o) and her income under 75(2)(b) has been affected by the duration of the marriage and the role that she undertook.
The wife asserts in her evidence that she needs to continue her role as a parent to X, certainly during the continuation of X’s minority until this year when she turns 18 years of age, and the wife gives evidence by a general statement, that general statement admissible pursuant to what fell from the Full Court in Britt & Britt (2017) FLC 93-764, and supported by the evidence that has gone before it in relation to X’s special needs, indicates that there is a need to protect the wife’s wish to continue her role as a parent for X.
There is no evidence that either party, and particularly here the wife, is cohabiting with any other person, and the wife has given her evidence in relation to the financial circumstances of her parents, Mr & Ms U, co-occupying the Suburb C property with her. Having analysed the evidence of those contributions and made a finding reducing the expenses of the wife consequent upon the evidence in relation to that intermingling of financial affairs, I find that there is nothing else to be considered in relation to the wife’s sharing of the property with those persons. There is no evidence that she has entered into a de facto relationship with any person.
There is, in relation to the interim spousal maintenance application, no orders to be made under section 79 at the present time. Subsection 75(2)(naa) does not apply.
I have taken into account the Child Support situation, the payment of Child Support by the husband to the wife currently for the child, X. That is a payment in the sum of $280 per week coming out of the husband’s monthly pay by auto-deduction from his pay office. I have already made my findings as to how I will treat that in relation to questions of income and expenses for the child, X.
Section 75(2)(o), “Any other fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account” is where I consider the earning capacity of the mother, as earning capacity is not one of the matters specifically referred to in 75(2)(b). I have already made comments in relation to how the period of the cohabitation of the parties over 24 years has had an effect on the mother’s earning capacity, given her primary role as homemaker and parent, and her support of the husband in his engaging in appropriate gainful employment through that time.
I have taken into account the evidence referred to in the exhibits and referred to in submissions by Ms Beck on behalf of the husband relating to the mother’s business. I find that on the state of the whole of the evidence, I am unable to find on these interim proceedings that the wife is obtaining an income from that business or that she currently has an earning capacity that she is not exercising in relation to her skills in the conduct of that business that would enable her to earn an income.
There is no financial agreement between the parties, binding or otherwise.
As I said previously, there are alternate findings available based on whether or not the wife does in fact receive rental income and make payments toward loan accounts secured on rental properties, or whether she does not receive such income or make such payments. I find on the whole of the evidence, and in particular in relation to the father’s evidence contained both in his affidavit and in his financial statement, that the latter will be the finding I make, namely that she does not receive the rental income and does not make the loan account payments.
Accordingly, I find that the wife’s income is nil, that she does not currently have an earning capacity, on this interim basis, to improve on that situation, and that her expenses are $1533 per week, not taking into account expenses for X or expenses for the adult child, Ms D, for whom she has some financial responsibility, that would be over and above any earnings that Ms D may be able to make – none are disclosed by the wife in her financial statement – and over and above Child Support, purely on the wife’s income and the wife’s expenses.

Accordingly, on that basis, I find that the circumstances referred to in section 72(1) of the Act, that the wife is unable to support herself adequately by reason both of currently having the care and control of a child of the marriage, X, who is not yet 18 years of age, and also by reason of other reasons that I referred to in going through the factors in section 75(2).
Being unable to adequately support herself, the wife has a need.
I will go on to the analysis of the husband’s situation. In looking at his financial statement and his affidavit, starting with the affidavit, with some quick and simple analysis, as these are interim proceedings. As I said, he has annexed as annexure B to his affidavit four pay advice notices for the period covering December 2020 through to the end of March 2021.
He states a salary package of $262,180 that includes the superannuation guarantee amount of $1895.50 per month.
Just examining those documents, as at the end of December 2020, the husband’s total gross income was $120,592.98 for the financial year, but by the end of December it had jumped to $195,062.81, which is an increase well above the increase that would be caused by the $19,952.83 regular monthly gross salary payment. That jump is $54,467, and that relates, of course, as the husband has clearly stated in his evidence, and the wife in hers, to a bonus payment of which he received a net amount of $28,933.
Similarly, there is another jump that significantly exceeds the $19,952.83 expected between the end of January 2021 and the end of February 2021, when his total gross income had gone to $265,015.54, a jump, after the $19,952.83, of $50,050. That equates with the parties’ evidence, in the main, and would be a net amount of $26,501. There I am referring, of course, to the husband’s affidavit evidence in paragraphs 44 and 45.
The last pay advice note for the end of March 2021 shows that for that month the husband received his standard, normal pay for the month with the normal deductions and the superannuation guarantee paid.
The husband has stated his salary package including the superannuation guarantee is $262,180, as confirmed in the pay advice notices. However, if I carry that through to the end of the financial year, on the basis that for April, May, and June, the husband receives only his standard pay, no more bonuses and so forth, the evidence does not indicate that he received any, then the $284,968.47 that he had total gross, not including superannuation guarantee, to the end of March, we would add another $59,858.49 for April, May, June at his normal pay, giving him a gross income for the year of $344,826.96 from his employment. That is what he is on track to receive for the 2020/2021 financial year, with that extra $82,646 on his salary package.
Taxation in Australia is set by Commonwealth legislation, and under section 143 of the Evidence Act 1995 (Cth) I am entitled to take judicial notice of matters of legislation, including regulations and so forth, pursuant to which I am entitled to take notice of the calculation that tax payable including Medicare levy on $344,826.96 would be $132,735. So far, that income has not included anything for the rental incomes, I come to that in a moment.
If the husband pays tax and Medicare levy on his 2021 income of $344,826.96, at the standard rate in the legislation of $132,735, he would be paying $2552 per week. That gross income equates to $6631.26 per week. From that weekly income, I deduct the Child Support he pays of $280, and the weekly tax of $2552, to give him a net income, after tax and Child Support only, of $3799 per week.
In his financial statement, the husband asserts that he receives a total rental income on the investment properties of $1604 per week, pursuant to paragraph 26 of his affidavit, which I quoted in full for that particular reason. He adverts that that sum of $1604 per week is net rent after allowing for rates, levies, utility bills, strata fees, and agency fees. I will take that net rent income amount and add it to the husband’s salary income that I have found at the net figure, because I do not have the gross figure, but I will keep in mind that it is the net figure.
In taking that net income figure into account in the husband’s income, I must keep in mind in looking at his expenses his payment towards the loan accounts secured by way of mortgage on each of the three investment properties.
Accordingly, with $3799 per week income net of tax and Child Support from his employment, $1604 per week net from rental income, that is a weekly income of $5403.
I have not included in that consideration of the husband’s income the superannuation guarantee amount paid. It is not available to him for any purpose, it goes straight into his superannuation fund, pursuant to the Commonwealth legislation, and I do not regard that it would be just and equitable in terms of section 75(2)(o) of the Act to take that into account in assessing income.
As I have already said, I have had regard to the husband’s bonus income.
Then in relation to expenses, I have done a calculation of the amount I have allowed per week for tax for the husband based upon the greater amount of income I have found from his salary. The husband suggested in his financial statement that an amount of $1734 per week is an expense for tax. I have allowed $2552 per week on the basis of the higher income I calculated for him.
In part G of his financial statement, in relation to the mortgage payments and so forth, it includes mortgage payments for each of the three investment properties. It also includes a mortgage payment in relation to a loan account secured by way of a mortgage on the Y Street, Suburb F property owned by the husband in his name, and in which he resides. On all of the evidence, I find that there is no loan account secured on the former matrimonial home at Suburb C to which payments are made by either the husband or the wife. Accordingly, I allow the expense in the total of $2487 at item 21, for the husband for his required payments on loan accounts secured by mortgages on properties.
In relation to item 22, ‘rates, unit levies’, the husband sets out there amounts for the Y Street property, the E Street, Suburb F property in his name, the W Street, Suburb S property, and the E Street, Suburb F property in the wife’s name. Once again, I have regard to paragraph 26 of the husband’s affidavit, in which he adverts that the income amount of $1604 is a net amount of those sorts of amounts of rates, levies, utility bills, strata fees, agency fees, and so forth.
The husband asserts an amount of $172 in relation to his Y Street property. Of course, that is nothing to do with the rentals, and, accordingly, I allow that $172 as a weekly expense. I do not have evidence to back it up. I do not have evidence to contradict it.
However, the amounts of $200, $151, and $114 set there I do not allow, based upon the husband’s own evidence that if he has only included a net amount in that rent income after payment of those amounts, I should not take them into account as an expense to set against the income that I have found.
Also in relation to expenses, I disallow the amount of $200 in item 30 for credit card payment because I have no evidence in relation to what constitutes the payments giving rise to the credit card debt. As the husband has set out in fairly extensive form, his expenses in parts G and part N of his affidavit, being his expenses for himself, on the basis that credit card expenses would be mainly composed, in the normal course, of a person’s day-to-day expenses or capital expenses on replacements for i.e. appliances, repairs, anything of that nature, car expenses. I disallow the $200 in part G at item 30 as it is very likely to constitute a double-count.
In relation to calculating the husband’s expenses, I note that in calculating his weekly income from work at $3799, I have taken away already his tax as I have found and his Child Support payment of $280 a week. The husband asserts that his “total of all other expenditure” at item 32 is $1559, coming across from part N of the financial statement.
I am disregarding all of the amounts in the “for children” column in part N, being presumably expenses the husband asserts he pays for X, from the same basis that I have not taken any of those expenses into account for the mother in calculating her expenses.
In relation to the husband asserting that he has an expenditure of $300 per week for himself for food, I am allowing that expenditure on the same basis as what the wife claims at $200 per week.
Similarly, in relation to the husband asserting an expenditure of $150 a week for household supplies, I am allowing that on the same basis as the wife of $24 a week.
In relation to house repairs, by the same token, where the wife claimed $100, I allowed $40; the husband claims $25, I allow $40. That raises that by $15.
Similarly, in relation to gas, I have raised that from the $19 for the husband to $25, because I have added onto that the $6 he allowed for X, because the gas bill is the gas bill. If I do not allow any money for the child, he has got to pay it all anyway.
The same reasoning applies to electricity. He sought $38 for himself but $12 for X, so I have allowed $50 for the husband.
The same reasoning applies there for telephone and internet. He sought $50 for himself and $16 for X, I have allowed $66.
Going down to entertainment and hobbies, similarly, where the wife sought $100 I allowed $50. The husband seeks $150, I allow $50.
The wife asserted $51 as the estimated cost for holidays. The husband states as a definite $100 a week. I am allowing $51 a week.
Similarly for repairs, furnishings, and appliances, the husband asserts $50 a week. The wife asserted $105 – I only allowed $40. I allow $40 for the husband.
In consequence, the husband’s expenses come down from $1245 to $909 in part N.
Going back to part G, putting together the expenses that I have allowed there, and allowing $909 at item 32 instead of $1559, gives total expenses for the husband of $3618. That, as I have said, is leaving out the amount in part G for tax, three of the four amounts for rates, levies, and so forth, the $200 on credit cards, and changing the figure at item 32 from $1559 to $909.
The husband has a bank account in which, as at 15 April 2021, he had $29,397.
Accordingly, I find that the husband’s income is $5403 per week, net of tax and Child Support, and his expenses, not including tax and Child Support, are $3618 per week, giving him an excess of income over expenses of $1785 per week.
Continuing with section 75(2) of the Act in relation to the husband, he was, at the time of the interim hearing, 53 years of age. There is no evidence that he has any health matters affecting his ability to engage in appropriate gainful employment. He continues to engage in appropriate gainful employment as a professional for Employer P. He has been in that employment for 17 years and seven months.
In relation to having the care and control of the child, X, on the husband’s evidence he spends time with X after X has attended school, and on occasions for meals, being either lunch or dinner. He sets out his evidence in that regard in paragraphs 59 to 72 of his affidavit, some of which I summarised previously.
In paragraph 64 the husband asserts:
X has been spending time with me periodically from the start of the year, where she has stayed with me some nights and we’ve had dinner together.
The mother’s evidence has been two nights, the father has been indefinite about it, so I find that since that date that X returned to live with her mother on, I think, 14 January of this year, she has spent two other nights with the father.
I have already made a finding in relation to not taking into account expenses paid by the father in relation to X being in his care at any time when calculating his ability to pay, in the same way I disregarded expenses in that regard for the mother in calculating her need.
There is no evidence that the husband is responsible for the support of any other person. There is no evidence that he contributes in any particular way to the financial support of Ms D.
The husband is not in receipt of any pension, allowance, or benefit under the laws of the Commonwealth, state, territory, or another country, or from a superannuation fund.
I do not have evidence for the husband similar to what I have for the wife in relation to his current standard of living, but he has moved from residing in a family home, a standalone home, to occupying a unit on Y Street, a pretty busy place. I can infer to some small degree, a smaller degree than in relation to the wife, that his living standard has become reduced, given that he is now paying an extra loan that is in relation to his Suburb AA property, and the expenses thereof, whereas I gather from all of the evidence that there was no loan to be paid in relation to the Suburb C property. On the other hand, he is saving in relation to the outgoings relating to occupation in relation to the Suburb C property.
Similarly, as I found with the wife, I do not find, in considering whether or not it is appropriate to make the spousal maintenance orders sought by the wife and the lump-sum spousal maintenance order sought by the husband, that it would have any effect on either parties’ ability to pay, and particularly the husband’s ability to pay creditors and for that creditor to recover in relation to any debt, the husband’s only creditor really being the financial institution of the loan accounts secured on the investment properties and on the Y Street, Suburb F property, and his credit card.
There is no evidence that the husband is cohabiting with any other person.
There is no section 79 order to be made as this is interim spousal maintenance.
The husband is paying Child Support as assessed. There is evidence of an arrears. Whether those arrears have been or are being dealt with I do not know, but I do not take that into account in having any bearing on my assessment of the husband’s ability to pay in these proceedings, if nothing else, based on my disregarding the children’s expenses in considering the wife’s needs and the husband’s ability to pay.
There is no financial agreement.
Accordingly, I find that in relation to the husband, he has an excess of income over expenses in the sum of $1785 a week for the purposes of these proceedings, and accordingly I find, in terms of what is sought in section 72(1) of the Act, that the husband has an ability, that is, he is reasonably able to maintain the wife to the extent of the excess of income over expenses in the hands of the husband that I have found.
Accordingly, I find that there is a basis to make an order for periodic spousal maintenance in favour of the wife.
The husband seeks that the Court make an order that he provide a lump-sum payment of $25,000 to the wife, the nature of that order to be characterised at the final hearing.
The wife seeks an order for lump-sum spousal maintenance, payable to her from the husband of $35,000.
As I have already stated in these reasons, I am considering the matter on the basis of spousal maintenance. Any order I make in relation to lump-sum spousal maintenance is an interim order. Any interim order is susceptible to reconsideration by the Court in the course of proceedings, subject to the dictates of section 83 of the Act, which does not differentiate between an interim and a final order, but, nevertheless, an interim order made under a head of power of spousal maintenance under section 72 and 74 of the Act can, on the authorities, be revisited and reassessed as to how it is dealt with on final property settlement proceedings if in no other way than in being taken into account by the Court under section 75(2)(o) in the third step of the four-step process, once the Court has found that it is just and equitable to proceed with consideration of a property settlement under section 79.
Therefore, I find that it is proper, if I make a lump-sum order, to make it as a lump-sum spousal maintenance order on an interim basis, and that such order can be well and truly taken into account in various manners, but at least the manner I have referred to in the final hearing of this matter.
In relation to the competing applications relating to a lump-sum payment, which I will regard if such order is made, as an interim spousal maintenance lump-sum, of $35,000 on the part of the wife and $25,000 on the part of the husband, I note the evidence of the husband that he has, or had as at the date of swearing or affirming his financial statement, the sum of $29,397 in his bank account.
I note the evidence of the wife in relation to her being indebted to R Finance, a litigation lending body, in the sum of just under $40,000, and being at the limit of the facility provided to her, of having no capital means available to her, short of sale of real estate properties, to fund further litigation, and her need, as set out in her evidence, for further legal representation, with these proceedings being now around their mid-point on their way to final financial hearing.
I find that on all those bases it is appropriate to make a lump-sum order, but it is appropriate to make that lump-sum order in the sum of $25,000, which I find on the evidence is a sum available, as opposed to $35,000, which I find on the evidence is not a sum available.
Similarly, I find that it is not appropriate in these proceedings to make the further orders sought by the wife in her minute of order contained in her counsel’s well-prepared Case Outline document by way of enforcement of that order by providing, at this time, machinery orders for the sale of the Suburb F investment property.
The order will be made for payment of the lump-sum spousal maintenance on an interim basis. If it is not paid then the matter can then go to enforcement, with all the consequences that can bring with it in relation to costs, and the basis upon which those costs might be calculated, which is across a range from party/party on the scale, up to, if appropriate circumstances, being exceptional circumstances, are found, the indemnity basis.

I certify that the preceding two hundred and forty-seven (247) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 2 June 2021

[2021] FCCA 1201

21 May 2021

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

File number(s):	SYC 2503 of 2020
Judgment of:	JUDGE MORLEY
Date of judgment:	21 May 2021
Catchwords:	FAMILY LAW – interim spousal maintenance – lump sum and periodic spousal maintenance – where the quantum to be paid to the wife in the form of lump sum spousal maintenance is in dispute – where the husband opposes an order for periodic spousal maintenance –marriage of approximately 24 years – where the wife is not able to adequately support herself – where the wife has the primary care of a child of the marriage – where that child suffers from severe mental health issues – where the husband has an excess of income over expenses and is reasonably able to maintain the wife
Legislation:	*Evidence Act 1995* (Cth) ss 50 Family Law Act 1975 (Cth) ss 69ZL, 72, 74, 75, 79, 80, 83, 117 Federal Circuit Court Rules 2001 (Cth) rr 24.03
Cases cited:	Bevan & Bevan (1995) FLC 92-600 Mee & Ferguson (1986) FLC 91-716 In the Marriage of Redman (1987) 11 Fam LR 411 In the Marriage of DJM and JLM (1998) 23 Fam LR 396 In the Marriage of Vautin (1998) 23 Fam LR 627 Maroney & Maroney [2009] FamCAFC 45 Hall & Hall (2016) FLC 93-709 Britt & Britt (2017) FLC 93-764
Number of paragraphs:	247
Date of last submission/s:	29 April 2021
Date of hearing:	29 April 2021
Place:	Sydney
Counsel for the Applicant:	Ms Spain of Counsel
Solicitor for the Applicant:	Somerville Legal
Counsel for the Respondent:	Ms Beck of Counsel
Solicitor for the Respondent:	Fox & Staniland Lawyers

SYC 2503 of 2020
BETWEEN:	MS ARDEN
AND:	MR ARDEN

ORDER MADE BY:	JUDGE MORLEY
DATE OF ORDER:	21 MAY 2021