Ashby and Ashby

[2017] FCCA 302

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHBY & ASHBY [2017] FCCA 302

Catchwords:
FAMILY LAW – Property – contributions – United Kingdom pension entitlements – husband has considerable resources and income where the property pool has minimal value – s.75(2) considerations – spousal maintenance.

Legislation:

Family Law Act 1975 (Cth), ss.72,(1), 74(1), 75(2), 79(1), (2), (4), 90MC, 90MD

Cases cited:

Stanford v Stanford [2012] 247 CLR 108
Bevan v Bevan (2013) FLC 93-545
Fielding v Nichol [2014] FCWA 77
Clauson & Clauson [1995] FLC 92-595
Best & Best (1993) FLC 92- 418

Applicant: MR ASHBY

Respondent: MS ASHBY

File Number: LNC 22 of 2015

Judgment of: Judge McGuire

Hearing date: 20 February 2017

Date of Last Submission: 22 February 2017

Delivered at: Burnie

Delivered on: 8 June 2017

REPRESENTATION

Counsel for the Applicant: Mr McVeity

Solicitors for the Applicant: McVeity & Associates

Counsel for the Respondent: Mr Hoskins

Solicitors for the Respondent: Womens Legal Service

ORDERS

Property

1. That forthwith from the proceeds of sale of the parties’ property at (omitted) (UK) they pay out and satisfy the following liabilities:

   (i)Debt to Her Majesty’s Revenue and Customs ($20,650); and

   (ii)Debt to R ($99,480).

2. That otherwise the wife be hereby entitled to and the husband transfer and/or vest all his right, title and interest in the following to the wife absolutely:

   (i)The net proceeds of sale of the parties’ property at Property C, in Tasmania;

   (ii)The balance of the net proceeds of sale of the parties’ property at (omitted) (UK);

   (iii)The wife’s (vehicle omitted) motor vehicle;

   (iv)All personalty and chattels in the possession of or under the control of the wife as at the date of these Orders;

   (v)The balances of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these Orders; and

   (vi)Any superannuation or pension entitlement of the wife.

3. That the husband be hereby entitled to and the wife transfer and/or vest all her right, title and interest in the following to the husband absolutely:

   (i)The husband’s Toyota (omitted) motor vehicle;

   (ii)The balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these Orders;

   (iii)All personalty and chattels in the possession of or under the control of the husband as at the date of these Orders;

   (iv)Any superannuation or pension policies or entitlements of the husband but subject to these Orders; and

   (v)Any benefit from the husband’s late mother’s estate.

4. That each of the parties be solely responsible for and indemnify the other in respect of the following:

   (i)Any and all liabilities attaching to any of the assets to be retained by that party pursuant to these Orders; and

   (ii)Any and all liabilities incurred by that party since separation in either joint names or that party’s name alone.

5. That pursuant to section 90MT(4) of the Family Law Act 1975 (as amended) a base amount of $60,900.00 be allocated to the wife out of the husband’s interest in the Retirement Benefits Fund Superannuation.

6. That pursuant to section 90MT(1)(a) of the Family Law Act 1975 wherever the Trustee makes a splittable payment from the interest held by the husband, the Trustee:

   (a)Pay to the wife or her legal personal representative and assigns the entitlement calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001; and

   (b)Make a corresponding reduction in the entitlement the husband would have had in the Fund but for these Orders.

7. That these Orders have effect from the operative time of these Orders being 4 business days after the day on which the final sealed, signed Orders are served on the Trustee.

8. That the Trustee of the Fund do all such acts and things and sign all such documents as may be necessary so that the Trustee, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, can calculate the entitlement of and make payment to the wife in accordance with these Orders.

9. That upon receipt by the wife of a payment slip notice when issued by the Trustee pursuant to Rule 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife exercise her election pursuant to Rule 7A.06 Superannuation Industry (Supervision) Regulations 1994 to request the Trustee to roll over or transfer the transferrable benefits as per Rule 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994 to another fund of the wife’s choosing.

10. That following the action taken by the Trustee of the Fund as contemplated in Rule 14F(2)(b) of the Family Law (Superannuation) Regulations 2001 the provisions of Rule 14 Family Law (Superannuation) Regulations 2001 will make any splittable payments following the action by the Trustee, non-splittable.

11. That until the happening of any of:

    (a)The establishment of a separate account in the name of the wife and the fund; or

    (b)The transfer or rolling over into another superannuation fund the payment split created by order (5) hereof; or

    (c)The wife satisfies the condition of release and is paid the payment split which is created by order (5) hereof; or

    (d)The wife executes a wavier of rights within the meaning of section 90MZA of the Family Law Act 1975 in relation to the payment split created by these Orders.

    The husband be and is hereby restrained by himself, his servants or agents, from executing a binding death benefit nomination in favour of any person or from doing any such act or thing which would render any part of his interest in the Fund a non-splittable payment within the meaning of Rule 13 of the Family Law (Superannuation) Regulations 2001.

12. That until the operative time of these Orders the husband will be restrained by himself, his servants or agents from making application for withdrawal of any funds from his interest in the Fund.

13. That these Orders are made conditional upon the husband and wife or either of them providing procedural fairness to the relevant superannuation fund within fourteen (14) days of the date of these Orders and obtaining approval from the said fund.

14. That there be liberty to the parties or either of them to apply in respect of the issue of procedural fairness of the superannuation fund.

Spousal Maintenance

1. That the husband pay to the wife the sum of $600 per week spousal maintenance for a period of twelve (12) calendar months from the date of these Orders with the first payment to be made and due and owing on Thursday 15 June 2017 payable in arrears and on each Thursday thereafter for fifty-two (52) consecutive weeks.

2. That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BURNIE

LNC 22 of 2015

MR ASHBY

Applicant

And

MS ASHBY

Respondent

REASONS FOR JUDGMENT

Applications

1. The parties here wisely have settled their children's issues and orders were made by consent on 25 August 2016 providing inter alia that:

   a)The parents have equal shared parental responsibility for the children, X (aged 13 years), Y (aged 12 years) and Z (aged 10 years) with the children to live primarily with the mother and spend time with the father each second weekend and for half of school holiday periods, together with time on special days stop.

2. The remaining applications for my determination are:

   a)The wife's application for spousal maintenance where initially she sought an order for the husband to pay maintenance in the sum of $1,280 per week but by the end of the evidence had reduced to her claim to $600 per week for a period of two years.  The husband opposes any spousal maintenance order.

   b)The alteration of the parties’ property interests.  The wife seeks an order that she receives 80% of the net property of the parties inclusive of their superannuation entitlements.  The husband proposes an order whereby the wife receive 65% of the net tangible assets and that the parties’ Australian superannuation accumulation entitlements be split so as to give an equal balance to each of them. 

   c)Each of the husband and the wife have United Kingdom superannuation pension entitlements with the husband's NHS pension scheme having a value of £243,951 which translates this day to $429,368.  The wife's UK pension entitlement has a value of approximately $16,900.  The husband argues that the United Kingdom superannuation entitlements be left in the hands of each party as is with the implication being that either party be able to make a claim directly against the policy or through United Kingdom Court.

Background

1. The husband is 49 years of age.  He is a (occupation omitted) specialising in (employment omitted).  He was born in the United Kingdom and emigrated to Australia in 2011.  He has permanent residency status.  His gross income is approximately $384,000 per annum.

2. The husband has re-partnered and his partner has a disclosed income of approximately $90,000 per annum.

3. The wife was born in (country omitted).  She is 51 years of age.  She is neither a citizen nor resident of Australia and her current Visa status is tenuous and due to expire or be renewed as of 28 November, 2017.  Her limited 'parenting Visa’ status allows her only limited employment which she has now relinquished. She is apparently entitled to neither Centrelink nor child-support benefits.  There is no evidence that the wife has re-partnered.

4. The wife was employed as a (occupation omitted) firstly with (employer omitted) and later with (employer omitted).  Her salary from her last employment was approximately $86,000 per annum.  She voluntarily resigned that employment in June 2015 claiming that she could not combine her responsibilities for the care of the children with her employment which required her to travel at least throughout the northern part of Tasmania where the parties and the children habitually reside in the (omitted) area.

5. The parties commenced a relationship in 1997.  They married on (omitted) 2000.  There is some dispute as to the period of cohabitation prior to marriage.  The wife deposes that the parties ‘began living together' in 1997.  The husband says that they cohabited only for a 'few months' prior to their marriage.  They separated in September 2012 and were divorced on 6 April 2015.

6. The husband and the wife initially shared the care of the children on an informal basis following separation.  It seems that they co-operated in their parenting around their respective work commitments.  In June 2015 the parties reached an arrangement of a more consistent and formal week-about regime noting that the wife resigned from last employment also in June 2015. 

7. The husband's mother passed away in (omitted) 2016.  He expects to be the beneficiary of her estate shared with his sister.  I have no evidence in proper form as to the value of that estate although the husband discloses that his mother's home is valued at £750,000 English pounds and his entitlements from the net estate at £500,000 E.

The Issues

1. There is a substantive issue as to the wife's entitlement for spousal maintenance.  The evidence exposed an issue as to whether or not the wife has or had an ability to maintain herself from gainful employment with reference to her resigning from a position which brought her $86,000 per annum and placing her visa in jeopardy by reason of her resignation.  Should the Court be satisfied that spousal maintenance be payable then there are issues as to the quantum of such maintenance and the time period for its application. 

2. The second substantive issue is in respect of the percentage distribution of the parties’ property.  The wife seeks an 80% distribution in her favour inclusive of superannuation (and apparently the United Kingdom superannuation).  The husband argues that the wife should receive 65% of the tangible assets and that there be an equal distribution of Australian superannuation entitlements with no orders as to the United Kingdom superannuation entitlements. 

The Evidence

1. The wife relied on her affidavit and financial statement filed 8 August 2016.  She was cross-examined at some length.  Having had the benefit of observing the wife in the witness box, I found her to be generally a witness of the truth.

2. The wife adduced evidence from her migration agent/solicitor, Mr E.  He provided an affidavit sworn 19 August 2016.  Mr E gave evidence and was cross-examined.  He is assisting the wife in obtaining a Complementary Parent Visa which will enable her to remain in Australia and apparently to obtain employment.  He deposed that the wife's application is well advanced in what is usually a two year process.  The evidence suggests that the application must be determined one way or the other prior to November 2017.  The general tenor of Mr E's evidence was of confidence in the wife obtaining her Visa but without any unequivocal commitment on his part.

3. The husband relied on his affidavit of 8 August 2016 and his financial statement of 23 November 2016.  He adduced no further evidence.  He was cross-examined. 

4. My observations of Mr E were also of an honest and credible witness.  As with the wife, he accepted that much of his evidence relied on recollection which may have been flawed by reason of the flux of time.  Also like the wife, he was able to make appropriate concessions.  Generally, I found both parties to be impressive and reliable witnesses of the truth. 

Property – Relevant Law

1. Matters of property settlement are dealt with under section 79 of the Family Law Act 1975 (‘the Act’).  Sub-section (1) provides that the Court may make such order as it considers appropriate with respect of the property of the parties to the marriage or either of them and in altering the interests of the parties and that property.

2. Section 79(2) states that a Court shall not make an order altering the interests of the parties in property unless it is satisfied that, in all the circumstances, it is just and equitable to do so.

3. Section 79(4) deals with the consideration of contributions of the property pool including both direct and indirect financial contributions as well non-financial contributions including those as a homemaker and parent.

4. The Court is also required to reference the evidence to the relevant considerations under section 75(2) of the Act in considering whether any further adjustments to a party’s entitlement are appropriate after the considerations of contributions.

5. It is generally accepted that the Court to should 'stand back' after consideration of contributions and the relevant section 75(2) factors to consider whether the orders it proposes making are themselves just and equitable in the particular circumstances of the parties.

6. Prior to the well-known decision of the High Court in Stanford v Stanford[1] it was generally accepted that the above 'four step’ approach was appropriate for trial judges in dealing with matters of property settlement.  Following Stanford and a later decision of the Full Court in Bevan & Bevan[2] it is clear that the consideration under s79(2) as to whether it be just and equitable to make any orders at all is to be considered independently and not conflated with a simple consideration of the contribution factors in s79(4). As the majority in Stanford stated at [35]:

   It will be recalled that section 79(2) provides that 'the court shall not make an order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order'. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under this Section.  The requirements of the two sub-sections are not to be conflated.  In every case in which a property settlement order under section 79 is sought, it is necessary to satisfy the court, that in all the circumstances, it is just and equitable to make the order.

   [1] [2012] 247 CLR 108

   [2] [2013] FLC 93-545

7. Nevertheless, I am comfortable with a process of consideration whereby the contribution factors under s79(4) may be taken into consideration as to the ‘just and equitable’ finding required by s79(2) although such considerations are not ‘necessary’[3]. 

   [3] Fielding v Nichol [2014] FCWA 77

8. In any event, I have little difficulty in finding it just and equitable to alter the property interests of these parties.  Their marriage and relationship has ended as evidenced by the divorce. They have been the joint owners of a real property.  There are children of the relationship.  There have been contributions of varying types including financial and non-financial contributions towards their pool of assets.

The Property Pool

1. The parties have effectively agreed their pool of property and I was provided with an aide memoire accordingly prior to final submissions.  That property pool comprises the following:

Assets:

Net sale proceeds of Property C property	$ 48,449
Net sale proceeds ((omitted) house) - UK	$230,603
Husband's Toyota (omitted) motor vehicle	$   9,000
Wife's (vehicle omitted) motor vehicle	$   3,000
Husband’s bank account balance	$ 10,000
Total	$301,051

Liabilities:

HM Revenue & Customs	$ 20,650
Loan from R	$ 99,480
Total	$120,130
Net tangible assets	$180,921

Superannuation Entitlements:

Husband’s RBF superannuation	$139,500
Wife's (omitted) superannuation	$  17,697
Husband’s NHS pension entitlements (£243,951)	A$429,368
Wife’s UK pension entitlements	A$  16,876
Total	$603,441

1. An issue arose as to the jurisdiction and ability of this Court to deal with the parties’ United Kingdom superannuation entitlements. The matter was adjourned following final submissions and for further evidence to be adduced as to the status of the husband's entitlement, in particular, given its value and especially in respect of the context of the limited value of the property pool. It eventuated that the Court received helpful information via an affidavit of the year wife's solicitor, Ms A, sworn 5 May 2017. That material provided a value for the husband's NHS pension entitlement entitlement as set out above. With the benefit of that material Counsel, in further submissions, agreed that the husband's benefit (and presumably also that of the wife) did not comply with the definition of 'eligible superannuation plan' pursuant to sections 90MC and 90MD of the Family Law Act 1975 in that it was not open to this Court to 'split' either of the party’s United Kingdom funds as a part of these orders generally under section 79 of the Act. Consequently, the following options were left by Counsel for the Court’s consideration and in respect of those United Kingdom funds:

   a)To treat the parties United Kingdom entitlements simply as ‘resources' consistent with the practice prior to the significant amendments to the Act in 2001 in respect of superannuation;

   b)To quarantine the parties’ United Kingdom superannuation entitlements from my consideration and noting in my orders accordingly, thereby leaving an option for the parties or either of them to make application in the United Kingdom to a Family Court or otherwise.

Contributions

1. I am satisfied that the parties were in a committed relationship from about 1997.  They did not, however, always live together given the husband's ability or need to live on site at (employer omitted).  The husband bought a flat in (omitted) for 85,000 GBP in 1998.  In about 2000 the wife bought her sister’s property at (omitted) for 85,000 GBP.  I accept that she paid for renovations to that property.  Generally, I accept that both parties contributed approximately 100,000 GBP to the joint purchase of a property at (omitted) in April 2005 with the purchase price been 570,000 GBP.

1. The father’s mother gifted him 75,000 GBP to assist with the purchase. 

2. The wife received a redundancy in 2003 of approximately 40,000 GBP.  She received some further financial gifts from her mother.

3. The parties moved from (omitted) to (omitted) in 2005 for the husband to take up a position at the (employer omitted).  They later moved to (country omitted) for the husband's employment.  They then returned to the UK for the husband's employment.  They then moved to Australia also to further the husband's employment.  During these periods the wife was not substantially remuneratively employed.  It is clear, therefore, that the husband was the major financial provider during the course of what became a traditional marriage whereby the wife was engaged as homemaker and parent.  I also infer generally support by the wife in the various international moves by this family for the purposes of the husband's employment and considering this to be a form of contribution by the wife generally to the family.

4. Since separation the husband has remained in highly remunerative employment.  The wife's employment ceased on June 2015 as set out above.  She has, however, generally been the primary carer for the children.  Further, the husband has voluntarily made payments to the wife for her support and that of the children. 

5. The husband asserts, and is unchallenged, in his evidence that he had approximately $20,000 in RBF superannuation at the time of separation with that policy having a current value of $139,500. 

6. It seems to be conceded that the wife withdraw a sum of $10,000 from the parties’ redraw facility from the mortgage in about mid-2015.  She also asserts some contribution towards repairs on the (omitted) property prior to its sale.

7. The wife has incurred considerable expense in her quest for permanent residency status in Australia.  This is, of course, a debt incurred by her post-separation.

8. Given the state of the evidence and some vagaries in the recollections of the parties,  I am satisfied generally that the parties have made equal contributions to their marriage noting a superior financial contribution by the husband initially whilst the wife has been primarily responsible for the care of the children since separation. 

Section 75(2) considerations

1. The best evidence is that the husband has a gross income of some $384,000 per annum.  His partner earns $90,000 per annum.  By way of contrast, the wife has nil income from any source other than gifts from her mother.  She is not eligible for Centrelink benefit.  She does not receive formal child support assistance although the situation may be rectified by a formal assessment.  She is fortunate that the husband has made some considerable voluntary payments in the interim for the support of herself and the children.

2. The wife's visa status remains unknown.  I understand that should her application be unsuccessful by November 2017 then she faces deportation to the United Kingdom.  Her most recent employment is a (occupation omitted).  Her employment in Australia, at least in the interim, is limited to opportunities in this field. 

3. The wife has orders in her favour giving her primary care of the three children of the marriage although I am satisfied that the husband, currently informally, and eventually by child support assessment will be a generous provider for his children.

4. There is no evidence that the wife has re-partnered.

5. On the basis of these common considerations alone, the wife would ordinarily receive a substantial percentage adjustment from the property pool, after consideration of contributions, in her favour.  There are, however, contingencies peculiar to this case to consider and as follows:

   a)The property pool in the sense of the tangible assets is of limited value and agreed at only $180,921.  By contrast, the parties’ joint superannuation entitlements total sum $603,441;

   b)Of the above combined superannuation entitlements, some $429,368 sits in the husband's NHS pension fund and, by agreement of Counsel for both parties, I cannot make a splitting order in respect of this fund.  I reject the suggestion of Counsel for the husband that I should simply ignore that fund (and the wife's miniscule UK fund) and leave the parties to deal with these funds under appropriate United Kingdom law.  I prefer that the husband’s substantial interest and entitlement be treated as a resource albeit not yet available to him and hence not an 'asset';

   c)Whereas the net tangible assets total a value only $180,921, the Australian superannuation entitlements of the parties total approximately $157,000 where these are the only policies capable of 'splitting orders' within my power and jurisdiction;

   d)The husband has available to him yet a further 'asset' albeit one achieve post-separation and without contribution by the wife being the inheritance from his mother’s estate which is now disclosed at in excess of 500,000 GBP;

   e)The final consideration remains the husband’s current and future income from his employment as a (occupation omitted) and is referred to under the section 75(2) factors as above. That consideration should be given contextual significance where the asset pool is relatively minimal in value and as the Full Court in Clauson & Clauson[4] recognised when observing:

   It has long been recognised that in most cases the most valuable 'asset' which a party can take out of the marriage is a substantial, reliable, income earning capacity: see Best & Best (1993) FLC 92 – 418 @ 80,295.

   There is, at times, a tendency to assess s75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the court has tended to operate in this area within artificially delineated boundaries.  That is, it appears almost to be inevitable that the s75(2) factors will be assessed in a range between 10% and 20%.  A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.

   [4] [1995] FLC 92-595

Findings and Conclusions – property

1. I am satisfied generally that the parties have made equal contributions to the property pool.

2. I am satisfied that there are significant s75(2) factors which would ordinarily favour an adjustment of some significance to the wife.

3. I am not persuaded, however, that a consideration along the lines of any normal percentage 'formula' can do justice to any adjustment in favour of the wife under s75(2) where:

   a)The net property pool is only $180,921;

   b)The husband's United Kingdom superannuation entitlement is $429,368 and I am unable to 'split' this resource;

   c)Where the husband's income is $384,000 and, in line with the observations in Clauson, the most significant 'asset' coming out of this marriage;

   d)The husband has the benefit of his mother’s bequest of £500,000.

4. I intend to consider the husband's UK superannuation entitlement as a resource.  It should, therefore, in my view be given some appropriate discounts by reason, for example, that it is not currently available to the husband and apparently not available to him at least until the age of 60 whereupon he has the choice to take an ongoing pension or a lump sum.

5. Assuming the satisfaction of the liabilities from available cash and in bald financial terms, should the wife will retain the tangible assets of the parties excepting the husband's Toyota (omitted) motor vehicle ($9,000) and the balance of his bank accounts ($10,000).  She will therefore be receiving assets to the value of $161,921 or approximately 89.5% of those tangible assets.  She will retain her UK pension entitlement at $16,876.  The husband will retain his UK superannuation at $429,368.  Even ‘discounting' that UK superannuation for it being a 'resource' , such a distribution of assets and resources would, in my view, still be very favourable to the husband noting again his substantial income and the income discrepancy between he and the wife together with his benefit from his mother’s estate.

6. Nevertheless, in doing justice between these parties with such a limited tangible asset pool as viewed against such a substantial financial superannuation resource which cannot be 'split', on a 'two pool' consideration of the Australian superannuation entitlements, I propose to make such orders as give best possible weight to the considerations of contributions and s75(2) factors within the constraints that confront me with the husband's UK superannuation entitlement.

7. There remains for me to consider the 'second pool' being the parties’ Australian superannuation entitlements. The husband has an RBF superannuation policy value valued at $139,500. The wife's (omitted) superannuation is valued at $17,697. I accept that the husband has made substantial contributions through his employment in the 4 and 1/2 years since separation increasing its value from $20,000 to a current $139,500. I do not, however, accept that a simple mathematic equation does justice to the holistic considerations of contributions which are properly applicable and have continued post-separation as for example by the wife's care of the children. The s.75(2) considerations are, of course, also relevant. In all of the circumstances, therefore, I am of the view that justice and equity is afforded these parties by splitting of the husband's superannuation entitlements so as to achieve a 50% of total value to each of the parties. The total value of the parties Australian superannuation entitlements is $157,197. Each party should therefore achieve value of $78,598. The wife retains her entitlement of $17,697 she should therefore receive the advantage of splitting order from the husband's RBF superannuation in a base amount of $60,900 and I intend to order accordingly.

8. Justice and equity overall is, of course, the primary consideration for the Court under s.79 of the Act. My orders here might superficially appear generous to the wife where she will retain near 90% of the tangible assets and 50% of the parties’ Australian superannuation where the husband’s post separation contribution to the latter has been overwhelming. However, the circumstances here are highly unusual firstly in respect of the differences in the parties’ personal circumstances and, secondly, where the husband has substantial financial resources available to him such as are not available to the wife. It is trite to say that the task for this Court is not one of “social engineering” and the considerations of contributions and proper adjustment after considerations of s.75(2) factors remain the statutory and intellectual template towards justice and equity.

Spousal Maintenance

1. S72(1) of the Act provides:

   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 himself or herself:

   (a)by reason of having the care and control 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 sub-section 75 (2).

2. Section s.74 (1) provides:

   In proceedings with respect of the maintenance of the party to a marriage, the Court may make such order as it considers proper for the provision of maintenance in accordance with this Part. 

3. Counsel for the husband did not argue with vigour any incapacity of his client to meet any spousal maintenance order.  Rather, the focus of Counsel’s argument rested with the alleged inability of the wife attend to her own financial needs.

4. By the end of the evidence, the wife was seeking an order for spousal maintenance to be paid by the husband in a quantum of $600 per week for two years from the obtaining of her Visa (and presumably until such visa is granted?) or:

   a)Until the wife achieves an income of $35,000 gross per annum; or

   b)If the Visa is not granted then to continue until her employment achieves $35,000 Australian per annum (presuming deportation).

5. The wife's argument for spousal maintenance is a simple one.  She says that she is unemployed.  She says that she cannot effectively obtain employment due to her Visa status.  She says that she has the responsibility for the care of the parties’ three children by reason of consent orders made 25 August 2016 which oblige the wife primarily for the care of the children save for each alternate weekend and half school holidays.

6. The application is opposed by the husband primarily on the basis that the wife voluntarily left employment in 2015 during a period of time when a more flexible shared care arrangement was in place for the children and where the wife herself by email communication to an employer commented that the arrangement was 'working well'. Essentially, the husband argues that the wife has a duty to mitigate her damages. Counsel for the husband argues that the obligation to care for a child under the age of 18 years is not a necessary condition for an award for spousal maintenance but may be one considered in all the particular circumstances of the parties as relevant under the general considerations pursuant to s75(2) of the Act.

7. Counsel for the husband also argues that the wife has made no effort or legitimate effort to obtain employment of any type following her voluntary resignation in mid 2015.

8. In summary, Counsel for the husband argues that the obligation to cross the threshold created of by s72(1) remains regardless of whether a person has the responsibility for the care of a minor child. He argues that there is evidence before the Court that the children's care arrangements were working well with contributions by both parents thereby allowing the wife to maintain employment, which she voluntarily relinquished some 12 months or so prior to the making of Court orders giving her primary responsibility for the care of the children.

9. Counsel for the husband also urges the Court to take into account that the wife will achieve some significant cash settlement following the orders under s79. Nevertheless, my orders, will grant her only approximately $160,000. Leaving aside any need to re-establish herself and the children financially, I would not reasonably expect such an amount, even prudently invested, to bring an income return so as to allow the wife to support herself. Further, there remains the question as to whether she should, in any event, be required to deplete her assets following a property settlement in total or substantially in order to support herself?

10. It is true that the wife voluntarily relinquished her employment.  I also accept that she made public statements contemporaneously with her resignation as to the 'success' of her employment combining with her family responsibility.  Nevertheless, it is clear from the wife's affidavit material that the circumstances of parenting the children did change in or about mid 2015 from a more flexible arrangement where the wife says at [47] “We initially had a verbal agreement for equal time with the children.  We juggled their care in and around our work commitments.  We never had the children for more than a week at a time each .… If neither of us could look after the children they would go to after school care in (omitted) or a babysitter in (omitted).”  That situation apparently became as deposed in her affidavit at [53]: “After Mr Ashby moved in with Ms A we were no longer able to communicate effectively.  Mr Ashby became unco-operative and disinterested in the children… Around June 2015, Mr Ashby asked to change to a week about arrangement with changeover on Thursday afternoons.  I agreed to this,” 

11. On the balance of probabilities, therefore, I accept the wife's evidence which I do not find to be inconsistent with her public statements, that the circumstances for the children changed in about mid 2015 and that the more formal demarcation of responsibilities was not as compatible with her employment as had been the previous flexible and more informal arrangements.  I note in this respect that the wife's employment required considerable travel and often some distance from her and the children's home.

12. The wife's Visa status compounds her inability to currently obtain remunerative employment.

13. The wife says she has needs in the sum of $600 per week and this is not challenged by the husband.

14. I accept the general evidence of the husband that he has contributed to the wife's support together with the support of the children and that an application for Child Support assessment has been made and was anticipated to commence.

15. The husband's capacity to contribute the wife's maintenance is not an issue. 

16. In all the circumstances, I am of the view that the wife has a current need for spousal maintenance and in the quantum of $600 per week.  The question that remains for my consideration, therefore, is the duration of any such order.  The wife's circumstances to a large degree are dictated by her Visa application.  Her status in that respect should be known by the November 2017.  Her employment opportunities are almost non-existent until that time having regard to her responsibilities for the children and the requirements of the temporary Visa.  She is undoubtedly, however, a woman of some skill and aptitude and might reasonably expect to enter the workforce in some capacity once her circumstances are settled.  Alternatively, of course, the failure of the Visa application will result in her deportation to the United Kingdom (subject to any review mechanisms).  In all of those circumstances, I am of the view that the husband should contribute to the wife's maintenance in the sum of $600 per week for a period of 12 months from the date of these orders.  If the wife’s circumstances significantly change during that period of time then it would be open for the husband to seek a variation or vacation of the order.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  8 June 2017