Asquith and Garner (No 3)

[2019] FamCA 888

FAMILY COURT OF AUSTRALIA

ASQUITH & GARNER (NO. 3) [2019] FamCA 888

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – orders made for the payment of continual spouse maintenance.

Family Law Act 1975 (Cth)

APPLICANT: Ms Asquith

RESPONDENT: Mr Garner

FILE NUMBER: BRC 11166 of 2019

DATE DELIVERED: 31 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 31 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: Mr R Cameron

SOLICITOR FOR THE RESPONDENT: McNamara & Associates

Orders

1. That the Respondent make, by way of continual spouse maintenance, a payment to the Applicant of $500 per month.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Asquith & Garner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11166 of 2019

Ms Asquith

Applicant

And

Mr Garner

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. The application before me today is an interim spouse maintenance application.  It has been adjourned a couple of times to clarify some issues relating to the parenting arrangements for the children.  The children were returned to Australia by reason of a Hague order decision of the Maltese court.  In the intervening period the husband has paid a lump sum of $2600 to the wife for spouse maintenance.  I am satisfied, as I have indicated today, that the wife is unable to adequately support herself.  She cannot support herself because having come to Australia on the visa that she is, not by desire it has to be said, she is unable to work.

2. The mother is also unable to obtain benefits from the Government.  Accordingly, her sole source of support is either payments made by the husband to her by way of spouse maintenance; child support paid by the husband to her via the Child Support Agency as assessed; and it would seem support from the husband’s family, particularly his uncle who appears to be providing accommodation at a very low rate (if any rate at all) to the wife and the children who now live with the wife primarily as a result of the orders I made in this case with published Reasons on 17 October 2019.  The children are X who is now seven years of age, and Y who will soon turn five.

3. Under no circumstances do I regard the mother’s financial circumstances as other than very, very modest. I can only assume she is getting support from some other source, perhaps from Malta or family, to help her make ends meet. Nonetheless, I am satisfied that the wife establishes that she is unable to adequately support herself within the meaning of Section 72 of the Family Law Act 1975(“the Act”).  Having done so, the Court is required by law to consider the capacity of the husband to pay.

4. His capacity to pay also is required to take into consideration such of the matters as are relevant set out in s 75(2) of the Act. During the course of today’s interim hearing dealt with on the papers, I have considered, essentially firstly, what I regard as the husband’s available income and taxable income available to pay his expenses. The evidence before me included:

   a)a Financial Statement filed 15 October 2019 in which he swore that the income from his business after business expenses but before tax was $1200 per week (see item 11);

   b)evidence from his accountants attached to the Affidavit filed on 29 October 2019 that his net weekly income (based on gross profits for the last three months, that is from July to October 2019) should be seen to be $807.32; and

   c)Exhibit 2 which is his income tax return for the year ended 30 June 2019.

5. I have made observations in respect of the husband’s income tax return that there seems to be creatively claimed deductions for “rental property” for the period ended 30 June 2019 when there does not appear to be any income from that property.

6. How that is achieved is a mystery to me, but nonetheless when one allows for those losses from the “rental property” the husband’s taxable income for the year ended 30 June 2019 amounted to $82,362 and after allowance for tax paid less refund received as per the income tax return estimate attached to the income tax return, his net income after tax for that year I estimate to be $1,220 a week.  Accordingly, for these reasons I reject as a proper estimate of his current income and earning capacity the estimate given by his accountants based on the last three months.

7. I also note, as I did in my exchanges with Mr Cameron of Counsel for the husband, that over the last three months the husband has been the primary carer of the children and that would have, I assume and infer, had an effect upon his capacity to work and/or the need to engage others to do the work that his company had and therefore less income was available to him.  I therefore make a finding that for the purposes of the current assessment of his capacity to pay, he has a net income of $1,200 per week.

8. Before moving into his expenses, Ms McGregor, the solicitor advocate for the wife, refers to and relies upon Exhibits 3 and 4 which are bank statements for the husband and/or the husband’s business (K Pty Ltd) from which Ms McGregor says I should infer that he has greater income or financial capacity than his tax return exhibits.  She refers to the amounts in those accounts and payments moving between a business account and a personal account.  The difficulty with that submission of course, is that I am only given approximately (and no criticism of the parties is meant in this regard) statements for about one month.

9. I do not know, for example, what other business debtors had been accrued or creditors were payable.  It is somewhat artificial to merely look at the functioning of a business from a bank statement at any particular point in time.  Whilst it may well be that the husband has, and I assume he has, had to pay legal expenses (he is not legally aided as is the wife quite properly) I give him no credit against his taxable income or his income capacity for those expenses.  Accordingly, I am not satisfied by the examination of Exhibits 3 and 4 and the careful submissions made by Ms McGregor that the husband’s capacity to pay either from income or capital, exceeds $1,200 net per week.

10. I am then required to consider in accordance with the statutory pathway, the weekly expenses that the husband has.  I have identified his expenses as I set out in the transcript.  The major expenses are child support of $176 and his mortgage and house expenses (items 23, 22 and 26) that total $521.  In respect of the mortgage payment, that seems to be in respect of a mortgage of $364,000 over a property the husband says in his Financial Statement has a market value in the region of $410,000.  Therefore it is a very modest property with a very modest equity.  The other additional major expenses are food for himself, and when the children are with him.  I have not made any allowance for the food that might be payable or might be used to feed his partner, Ms B.

11. The other major expense seems to be car expenses, however I have taken into consideration that the husband would be able to claim against his taxable income business expenses relating to the use of his vehicles for business purposes.  The nature of the parenting order made by me on 17 October 2019 is that the husband meets the costs of travel from his home to where the wife is living which is about 143 kilometres effectively, for three out of four weekends, which of course involves four trips getting there and coming back, in respect of each weekend together with the time on a Wednesday where he spends with the younger child.  In those circumstances the travel distance and the like, the claim of effectively $180 for fuel and $35 towards car expenses is not, in my view, unreasonable.

12. Together, with the other smaller amounts as set out in the transcript, I assess the husband’s expenses before his capacity to pay any money to the wife or his new partner (noting that he and the wife are divorced) uses up his net income.  Now whilst I can accept that in any difficult and strained financial situation there is a capacity to seek to improve one’s income and to cut the cloth to meet one’s expenses, I could not be satisfied, in this case, it is sustainable.  It is within that context that the husband’s offer made at the commencement, that irrespective of what I find to be his capacity but with a view to his acceptance that the wife is really in a very difficult financial position, he was prepared to make an offer to pay maintenance to the wife of $500 per month, should be assessed.

13. In my view, based on the findings I have made, but on the offer the husband openly made through his Counsel today, I will make an order that the husband pay by way of continual spouse maintenance a payment to the wife at $500 per month.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 31 October 2019.

Associate: 

Date:  27 November 2019