B and B - [2002] FMCAfam 439

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & B

[2002] FMCAfam 439

FAMILY LAW – Spousal maintenance – interim application – wife’s inability to obtain employment because of age or mental health not established.

PRACTICE AND PROCEDURE – Interim applications usually determined without oral evidence – application to adduce oral evidence refused.

Family Law Act 1975, s.72

Redman and Redman (1987) FLC 91-805

Bevan and Bevan (1995) FLC 92-600
Best and Best (1993) FLC 92-418
Atwell and Atwell (1981) FLC 91-107
Weir & Weir (1992) FLC 92-338
Moge and Moge (1992) 43 RFL 3^rd District 345

Applicant:

F J B

Respondent:

R N B

File No:

PAM3778 of 2002

Delivered on:

12 December 2002

Delivered at:

Parramatta

Hearing Date:

11 December 2002

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr Heazelwood

Solicitors for the Applicant:

Doherty Partners

Counsel for the Respondent:

Mr Gassick

Solicitors for the Respondent:

Galluzzo Golotta Andriano Simone

ORDERS

That the applicant’s wife application for interim spousal maintenance filed 2 October 2002 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM3778 of 2002

F J B

Applicant

And

R N B

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

The application

This is an application for interim spousal maintenance. F B (“the wife”) applied on 2 October 2002, for s.79 property and also spousal maintenance orders. Additionally, she asked for an interim spousal maintenance order in the sum of $150 per week.
Her application first came before me on 8 November 2002. Ordinarily, her interim application would have been determined that day. However, on the wife’s application her interim application was adjourned for four weeks. During the adjournment her solicitors issued a subpoena for the production of documents that related to the respondent’s financial circumstances. No additional material was filed on her behalf.
As a matter of practice, interim spousal maintenance proceedings are usually heard on the papers. This is because any order is intended to be reconsidered and hence, the fact that is limited in time imports different procedural considerations. See Redman & Redman (1987) FLC 91-805.
At the start of the hearing the wife’s counsel sought leave to adduce oral evidence from his client. This included the tender through her of a doctor’s certificate dated June 2002 that diagnosed her depression and evidence from her that addressed how she is coping. The respondent’s counsel objected to this. His counsel correctly pointed out that the wife sought to significantly depart from ordinary procedure, yet offered no adequate explanation why it was that the court should extend her such an indulgence. Ultimately, I was persuaded that the application to adduce oral evidence should fail. If the wife’s case materially relied upon her current mental health, I would have expected an affidavit from her treating doctor that outlined diagnosis, treatment and her prognosis. Certainly considerably more than the mere assertion in her affidavit that she is depressed. More than a hand written note from a doctor who confirmed a consultation and diagnosis six months ago.
Thus, her case comprised her application filed 2 October 2002 and her affidavit and financial statement filed the same day. Additionally, documents were tended that formed part of the evidence in her case.
R B (“the husband”) opposed her application. He relied on his response filed 7 November 2002 and his affidavit filed the same day. In addition, a financial statement that was filed at the start of the hearing. He also tended documents that became exhibits in the proceedings.
His case, in essence, is that the wife did not establish the threshold requirement for an order for spouse maintenance. If I found against him on that issue, that she neither established need or his capacity to pay spousal maintenance.
In Bevan & Bevan (1995) FLC 92-600, the Full Court of the Family Court, identified the process and essential elements of an application for spouse maintenance. They said:
“An award of spouse maintenance requires:
1.   A threshold finding under s.72.
2.   Consideration of s.74 and s.75(2).
3.   No fettering principle that pre-separation standard of living must automatically be awarded where the Respondent’s means permit.
4.   Discretion exercised in accordance with provisions of s.74, with reasonableness in the circumstances as the guiding principle.”
It is important to understand the limitations contained in s.72 of the Family Law Act 1975:
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).
The wife’s application is pressed on two grounds, essentially, that by reason of her age or mental incapacity for appropriate gainful employment, she is unable to adequately support herself.
The wife is 59 years old. She married the respondent on 12 May 2001. They separated for the first time in February 2002 for about two months. In late April 2002 they reconciled briefly before they separated on 3 June 2002 for the last time. Thus, they cohabited for a period of about nine months. Although the wife did not disclose the first separation, I accept the husband’s evidence of it. It is corroborated by the wife’s claim for Department of Social Security benefits paid in March 2002[1].
[1] Exhibit B
Upon her marriage the wife gave up her job at the T H at Bass Hill. There she had worked in the bistro for which she earned about $300 per week. She has not returned to paid employment. Thus, she has been absent from the paid workforce for about 18 months.
Her financial circumstances are parlous. In an application such as this I must disregard her Centrelink pension. Hence she presently has no income. Her weekly expenses are rent of $135 and general living expenses of $158, making a total of $293. The wife has no assets that she can draw against to meet her cost of living. She has a car worth $4,000 and personal effects worth about $1,000.
The first question I asked myself is, does her age simplicita mean that she is unable to obtain appropriate gainful employment. Her counsel submitted that it does. He referred me to Nygh J’s comments in Atwell & Atwell (1981) FLC 91-107 where His Honour says:
“The first question is whether she has a capacity to remuneratory employment. In her affidavit she states, "I turned 57 years of age on 14 January 1981. Despite my age I have been able to obtain part time work as a shop assistant at a shop where I work three days each week and earn approximately $2,225 per annum." There is no direct evidence of any other attempt to obtain employment or as to her qualifications or lack thereof for employment. There is evidence as to her age but no evidence as to her state of health or her physical capacity to undertake employment.
Can it be deduced from her age, 57, that she has reduced capacity for gainful employment? In my opinion, there ought to have been additional evidence about lack of training for employment, reduced health or mobility or other factors. However, I can take judicial notice that 60 is the normal age of retirement for women and that it may be difficult for women approaching that age to retain or obtain full time employment.”
These concepts were considered more recently by the Full Court of the Family Court in its discussion of s.75(2)(k) in Mitchell and Mitchell (1995) FLC 92-60. There, the Full Court said at par 81-997:
“Importantly, and particularly in more recent times, there is the notorious circumstance that there is a significant gap between theory and reality for employment especially for people in middle age lacking experience and confidence and who have been out of the skilled workforce for many years and in the context of current high unemployment. Loss of security, missed promotion opportunities, loss of retraining and developing skills in an increasingly skilled workforce, with the loss of confidence which this brings, particularly in times of high unemployment, are notorious circumstances of which this Court must take notice and apply in a realistic way. In this regard, we refer to the detailed analysis of comparable problems in Canada by the Supreme Court of Canada in Moge & Moge (1992) 43 RFL 3^rd District 345, and the discussion by this Full Court in Best (1993) FLC 92-418, especially at 80-295, and the reference in those cases to the feminisation of poverty and to numerous articles upon that subject both here and overseas at that time.”
In Moge (supra) the Canadian Supreme Court said that judicial notice could be taken of relevant social science studies subject to other expert evidence. The Full Court referred to this in Mitchell (supra) and said:
“We agree with these general propositions. Like Canada, Australia has a body of research indicating that mothers, who are the primary care givers of dependent children, inevitably drop out of the paid workforce and consequently suffer financial deprivation which is exacerbated by marriage breakdown. see the Australian Institute of Family Studies publications, McDonald editor (1986) Settling Up Property and Income Distribution on Divorce in Australia, Formdar, Harrison & Weston (1993) Settling Down, Pathways of Parents After Divorce. "In our view, there are significant advantages to the Court being able to take juridical notice of research concerning the economical consequences of marriage and its dissolution".
However the Full Court also said, "We also agree with the caution contained in Moge against judicial notice being perceived as a substitute for evidence in the particular case".
I have no difficulty accepting that I can take judicial notice that when a woman of mature age has been out of the paid workforce for many years the barriers to her obtaining employment are high. Nor, do I expect that after many years absence from the workforce she must put herself through the humiliating exercise of applying endlessly for work in the face of continuing rejection. However, the court can only go so far. The wife carried the onus of providing her case. Her affidavit is entirely silent on the attempts, if any, that she has made to obtain work. Consequently, I infer that she has made none. She need have done little more than identify for me she has perhaps telephoned her previous employers, made contact with a couple of employment agencies or herself looked at noticeboards in places that advertise employment. With such evidence she may have been able to persuade me that she had made sufficiently exhaustive attempts to obtain either full time or part time work and that I could be satisfied she was now unable to obtain it. The absolute absence of evidence of this type creates real difficulty for her in the presentation of her case.
Because she has been in the paid workforce reasonably recently, I am not satisfied that I should conclude that she is unable by virtue of her age to obtain appropriate gainful employment. What is appropriate has an obvious relationship with the particular circumstances of the case. The wife has recent skills working in a bistro. These skills will not have been lost by the passage of 18 months. There is no evidence that during the last 18 months there has been a significant loss of job vacancies in this industry. Nor, that the technology associated with the delivery of this type of work has changed substantially. Thus I am not satisfied that she has made out her case in relation to the claim by virtue of her age.
I turn now to consider the submission that she has a similar inability to obtain appropriate gainful employment by reason of her mental health. Her evidence relating to her mental health and circumstances generally is as follows:
“On 23 April 2002 the Respondent assaulted me by slapping me in the mouth and at the same time spat in my face. In mid May

(I infer 2002)
I was packing leaving. The Respondent was screaming at me and shaking me. I subsequently saw Dr H at the Medical Centre at C. I have been treated for depression since 13 May 2002. I was also referred to a psychiatrist who recommended hospitalisation on 15 May. (I infer 2002) I am 59 years of age. I am unable to obtain employment. In support of my Application for spouse maintenance I rely on my financial circumstances filed herewith.[2]”
[2] paragraphs 10, 12 and 13
That is the extent of the evidence. Depression takes many forms. Symptoms can be wide ranging both as to type and severity. It can be totally debilitating and in its most chronic form can render a person totally incapable of paid employment.
When I read the wife’s affidavit evidence I asked myself:
·Where is the affidavit from the treating doctor?
·Was she, in November 2002 and now December 2002 depressed?
·What treatment has she received?
·What are her continuing symptoms?
·If there are continuing symptoms, how do these affect her?
·How do these impact on her capacity for part time or full time employment?
The evidence does not answer any of these questions. The evidence that between May 2002 and September 2002 the wife has been treated for depression is insufficient to establish on the balance of probabilities that she is depressed in December 2002 and that her depression renders her unable to obtain appropriate employment.
Thus, the wife has not established the threshold s.72 requirements that must be established for the court to consider further her application for interim spousal maintenance.
I have, nonetheless, considered the balance of the evidence so that there are findings that relate to all of the issues that are before the court. The husband challenged the wife’s need for interim spousal maintenance alleging that she had a source of income that was revealed in her bank statements earlier this year. There were a number of payments into her bank account in late April 2002. There were corresponding bank withdrawals from the husband’s bank account at the same time. It seems likely that the husband, because these transactions took place during the reconciliation, that the source of the payment into the wife’s account was the husband. Thus, the submission that was made on his behalf was misleading and undermines significantly the husband’s credit in relation to the presentation of his material before the court. There are more substantial issues that persuade me that the husband’s presentation of his material was all but a work of fiction.
There is no doubt on the material presented to the court that the applicant has an excess of expenses over income at least to the amount sought by her in her application for interim spousal maintenance.
The husband completed a financial statement which, to a considerable degree, fails to comply with his obligation to make full and frank disclosure of his financial circumstances. He is the only shareholder and director of B Transport, thus he is the beneficial owner of its assets. He gives no evidence of its value in his financial statement or in his affidavit. His company and personal tax returns for the last two taxation years were tendered.[3] These shed some light on his circumstances. But with respect to his counsel, considerably greater assistance and explanation was required of counsel to assist the court to understand and work its way through the material presented in those documents. It is not sufficient to tender to the court a vast morass of material and, in essence, say, work it out for yourself. I accept the wife's counsel's analysis of the husband's personal income in 2001, thus, I am satisfied that he had a salary of $19,700 which was his taxable income. In addition, he received bonuses of $6,000 and a dividend of $9,000. A total of at least $34,000, not the $19,000 presented in his material.
[3] Exhibit A
This tax year, doing the best I can with the material that was presented, I can see that the income for the business has fallen by $12,000. There was no reference to this at all in the submissions that were made. The expenses have also fallen by about $70,000. The book value of the assets of the business have similarly fallen from approximately $191,000 in the last financial year to $135,000 this year. The balance sheets reveal that a Scania truck appears in the 2001 balance sheet but not in the 2002 one. The liabilities associated with it seem to have disappeared as well. I infer the Scania truck has been sold. Nobody told me that.
When I asked the husband's counsel about how it is that his client has an excess of expenses over income and yet no explanation was offered about how he was meeting this difference, counsel informed me that he was not instructed on this issue. An inadequate bizarre response. When pressed to obtain instructions he revealed that his client had cash assets that had not been disclosed anywhere of at least $12,000. This reinforces my satisfaction that the respondent's case attracts the principles of Weir & Weir (1992) FLC 92-338.
I am satisfied that the husband has been able to intermingle his personal and business financial affairs and to manipulate the presentation of his material as a consequence of his beneficial ownership of the entire assets and income of the company. Thus, I am satisfied that this year he has an income of $34,000. He claims in his financial statement personal expenses for his car and his telephone. He makes a claim as a deduction in the business returns for car expenses which are differentiated from truck expenses, as well as telephone expenses. It seems likely that he has claimed a significant proportion of personal expenses in his tax return and then double counts them in the presentation of his material to this court. I discount his weekly expenses from $230 by $105. Thus, I am satisfied that the respondent has the capacity to pay spousal maintenance on an interim basis of no less than $105 per week.
Closer scrutiny and further submissions may ultimately have persuaded me that he had the capacity to pay spousal maintenance on an interim basis as sought by the wife, at least by reference to the unidentified cash sums revealed during the course of submissions.
Because the wife did not meet the threshold requirements of s.72 I have no choice other than dismiss her application for interim spousal maintenance and I order accordingly.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 29 January 2003