AVILLA & ZEMENO

[2019] FCCA 2903

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVILLA & ZEMENO [2019] FCCA 2903

Catchwords:
FAMILY LAW – Spousal maintenance.

Legislation:

Family Law Act 1975 (Cth), ss.72, 74

Applicant: MS AVILLA

Respondent: MR ZEMENO

File Number: BRC 796 of 2017

Judgment of: Judge McGuire

Hearing date: 3 October 2019

Date of Last Submission: 3 October 2019

Delivered at: Launceston

Delivered on: 22 October 2019

REPRESENTATION

The Applicant: Appeared in person

The Respondent: Appeared in person

ORDERS

1. That the wife's application for spousal maintenance be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 796 of 2017

MS AVILLA

Applicant

And

MR ZEMENO

Respondent

REASONS FOR JUDGMENT

Applications

1. The wife is the applicant seeking an order that the husband pay spousal maintenance to her in a quantum of $1,112.85 per week for a period of two calendar years.

2. The husband opposes any order for spousal maintenance.

Background

1. Both parties are originally from Country B. The matter was complicated to some degree by both being unrepresented in this application and where English is not their first language. Nevertheless, both the applicant and the respondent articulated their cases clearly, albeit with each unfortunately confusing numerous peripheral matters with the discrete consideration of spousal maintenance.

2. The husband is 46 years of age and the wife 44 years. They married in Country B on … 1997 but did not apparently commence cohabitation until … 1999.

3. The parties moved to Australia in 2005 and were granted citizenship in 2007.

4. There are two children of the marriage, namely X born … 2007 (aged 12 years) and Y born … 2011 (aged 7 years).

5. The parties first separated for a short period in October 2015 and finally separated on 26 June 2016.

6. The parties have previously litigated parenting and property matters in this Court. The children now live in a regime of shared care between the parties roughly as to 59% of their time with the wife and 41% of time with the husband.

7. Parenting and property settlement orders were made on 26 September 2018. Those orders provided inter alia for the wife to retain the former matrimonial home together with its mortgage obligation.

8. The orders of 26 September 2018 did not deal with spousal maintenance.

9. The parties were granted a divorce order on 9 January 2018 such to become final on 9 February 2018. The wife filed her application for spousal maintenance on an Application in a Case on 11 January 2019.

10. The husband has re-partnered. There is no evidence that the wife has re-partnered.

11. The husband is employed as a professional and, on the evidence before me, I am satisfied that he has a gross annual income of approximately $122,000 but perhaps supplemented by bonuses.

12. The wife has qualifications from Country B as a health care worker and has worked for some time in that profession. She has mostly worked part-time or casually in her occupation but more recently has had available to her work on a virtually full-time basis and evidenced by a letter she tendered to the Court during the course of these proceedings.
    I calculate her gross income if working full-time hours to be approximately $80,000 per annum.

13. The husband is currently assessed to pay to the wife $200 per week Child Support for the three children of the marriage. Nevertheless, the parties, and in particular the wife, tended to focus to a large degree on the 'needs' of the children as distinct from her own needs.

14. The wife is studying for a degree to improve her qualifications and with the ambition of obtaining permanent employment as a health care worker. She apparently has two years remaining to complete her studies. That course is conducted remotely from A University.

15. Much of the time and effort in the proceedings before me was occupied by the parties focusing on their historical family disputes, including much litigation, in Country B. It seems that the parties’ families together operated a business in Country B and that serious disputes over financial issues eventuated between the families. The wife claims that successful criminal proceedings were prosecuted in Country B against the husband and other members of his family whereupon the husband was sentenced to a term of imprisonment in absentia and that he remains of interest in Interpol.

16. Further, the parties attempted to agitate before me issues of the wife's dowry payable upon her marriage. It is suggested that the dispute between extended families in Country B has extended to allegations of 'stealing' of the dowry. Nevertheless, as I repeatedly advised the parties, such issues were of no import given the discrete application before me where the wife seeks spousal maintenance from the husband for a period of two years.

Relevant Law

1. Section 72 of the Family Law Act 1975 (‘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 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. Section 74 provides:

   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.

3. Following from the legislation as set out above, it is well-established that a party seeking an order for spousal maintenance carries an onus to prove, firstly, that he/she has 'needs' and, secondly, that he/she is unable to adequately meet those needs from the party’s own income, property or resources. It is only then and if that 'threshold' is crossed that the Court to would then consider the ability of the other party to contribute to the needs of the applicant.

The Applicant Wife's Case

1. The wife says that she requires spousal maintenance for the period of her studies. Significantly, however, whilst she says that a further qualification might give her more permanency in her chosen career, she did not claim that it would give her any greater income or income potential though she can achieve now if she was to work full time hours.

2. She says that she has weekly expenses which exceed her income in a quantum of $1,112.85. She says that her ability to work extra hours is inhibited by her need to study. She says that she has necessary and disproportionate expenses in respect of the children. She says that the husband has an income which will allow him to contribute to her financial support.

3. The wife relied on an amended financial statement filed 31 May 2019 in which she deposes to a total average weekly income inclusive of Child Support of $1,361.90. She says that her total personal expenditure is $3,078.35 per week.

4. The wife also relied on a comprehensive affidavit sworn 9 May 2019.In that document she alludes at [30] – [32] to some medical issues and family violence during the relationship of a financial and emotional type which both imply limitations on her employability. Nevertheless, no expert evidence was adduced in respect of either issue.

The Husband's Case

1. The husband argues that the wife exaggerates her needs and expenditures set out in her financial statement and says that the wife has the capacity to work full-time and can meet her own needs. The husband further says that the wife benefited relative to him in the property settlement and by implication argues that he does not have a capacity to meet or contribute to the wife's needs.

The Wife's Needs/Expenses

1. The wife was cross-examined in respect of her claimed expenditure and a number of errors or exaggerations were found in her sworn financial statement. She says that her expenses amount to $3,078.35 per week. From the evidence I am able to make the following relevant findings:

   ·The wife voluntarily contributes to $60.06 to her superannuation. This is not a necessary expense in circumstances where there is a statutory employer contribution;

   ·The wife claims $65 per week for motor vehicle registration.
   She now concedes that the figure should be $14 per week;

   ·The wife claims a Mastercard payment of $500 per week.
   Her liability is $8,000. The minimum payment per week is $40;

   ·At Part N of the financial statement the wife claims $70 per week for holidays and $50 per week for entertainment/hobbies.
   She claims expenditure of $200 per week on ‘repairs-furnishings and appliances' together with $50 per week on ‘house repairs'.
   I find that these amounts of $70, $50 and $200 per week are unjustified as necessary expenditure;

   ·The wife claims a total of $887 per week as expenditure for the children including a number of figures which are not what I find to be 'necessary' including motor vehicle maintenance ($13), fares/car parking ($20), child minding ($100), medical, dental and optical (where private health is paid) ($41), holidays ($70) and education expenses ($150).

2. I find that the wife has the following necessary expenditure:

Income Tax on $80,000 per annum	$200.00E
Mortgage	$440.00
Council Rates	$ 83.00
Life Insurance	$   7.55
Income Protection Insurance	$ 12.10
Private Health Insurance	$ 80.00
Home & Contents Insurance	$ 11.00
Motor Vehicle Registration	$ 14.00
Mastercard	$ 40.00
TOTAL	$887.65
Part N Expenses
Food (Household)	$250.00
Household supplies	$  20.00
Household repairs	$  50.00
Gas	$    7.00
Electricity	$ 35.00
Telephone	$ 79.00
Petrol	$ 30.00
Car maintenance	$ 13.00
Fares/car parking	$ 30.00
Clothing and shoes	$ 50.00
Medical, dental & optical (above health insurance)	$ 25.00
Entertainment/hobbies	$ 50.00
Chemist/pharmaceutical	$ 10.00
Dry cleaning	$   2.50
Books, magazines	$   7.00
Gifts	$ 15.00
Hairdressing, toiletries	$ 30.00
TOTAL	$703.50
TOTAL EXPENDITURE	$1,591.15

The Wife's Income – ability to meet her needs

1. The wife deposes to an average weekly income of $1,361.90. However, she chose to tender a letter from her employer which shows that work is available to her for 36 hours per week. She concedes that this would bring her a gross income of about $80,000 per annum. I calculate that her income would be $1,538 gross per week. In my calculations above, I have allowed $200 per week income tax rather than the $76.90 claimed by the wife. In addition, the husband contributes $200 per week Child Support in circumstances where the children live with him for 41% of the time and 59% with the wife. Consequently, and even given my conservative figures above and to allow perhaps for some further expenditure in respect of the children's needs, I am of the view that the wife is able to meet her expenses from an income potential of $80,000 gross per annum supplemented by a further $10,400 per annum Child Support from the husband (where such $10,400 is paid from his gross income in which he is responsible for tax) but where the wife receives that amount as ‘tax free’. I note still further that the wife argued for and successfully retained the former matrimonial home in the property settlement albeit with the attached mortgage liability.

Conclusion

1. In summary, and considering justice and equity between these parties,
   I am not satisfied that the applicant wife has discharged her onus to show that she is not capable of meeting her own necessary needs/expenditure from her income potential. I am not satisfied that her income potential is impacted by her admirable desire to improve her qualifications. She studies remotely and hence is not bound to any great extent by set university hours. She does not depose that any real income advantage will flow from her further qualifications. Not being satisfied that the wife has made out her case in the sense of crossing the threshold set by s.72 of the Act, her application will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  22 October 2019