BAIN & BAIN

[2013] FamCA 554

FAMILY COURT OF AUSTRALIA

BAIN & BAIN

[2013] FamCA 554

FAMILY LAW – SPOUSAL MAINTENANCE – Interim spousal maintenance – Where the wife is unwell – Where the wife is unable to work – Where the husband contends that an amount of spousal maintenance should be paid – Where the quantum of spousal maintenance is in dispute – Comparability – Whether the wife should be granted a quantum of spousal maintenance in relation to rent equal to the expenditure on rent by the husband.

Family Law Act 1975 (Cth) s74.

Mitchell & Mitchell (1995) FLC 92-601.
Brown & Brown (2007) FLC 93-316.
Nutting & Nutting (1978) FLC 90-410.
Stein & Stein [2000] FamCA 102.

APPLICANT:	Mr Bain
RESPONDENT:	Ms Bain
FILE NUMBER:	BRC    2481    of    2010
DATE DELIVERED:	26 July 2013
PLACE DELIVERED:	Brisbane
PLACE HEARD:	Brisbane
JUDGMENT OF:	Hogan J

HEARING DATE: 2 July 2013

COUNSEL FOR THE APPLICANT:	Mr Dick
SOLICITOR FOR THE APPLICANT:	Mr Bain Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Baston by way of direct access brief

Orders

IT IS ORDERED THAT

1. Paragraph 5 of the Order made 27 February 2013 is vacated.

2. Paragraph 10 of the Order made 18 December 2012 is vacated.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The husband pay to the wife, by way of spouse maintenance, the sum of $1,049.00 per week with the first such payment to be made on Monday 29 July 2013 and, thereafter, on each Monday by deposit into a bank account nominated by the wife.

2. The husband pay to the wife, by 4.00pm on Wednesday 31 July 2013, by way of spouse maintenance, the sum of $3,496.00 by deposit into a bank account nominated by the wife.

3. The Wife shall give the husband no less than 7 (seven) days written notice of an intention to vacate the property situated at B Street, C Town (“the property”) and shall nominate the date on which she will vacate the property (“the nominated date”).

4. No less than 48 hours before the nominated date the husband pay, by way of spouse maintenance and by deposit into a bank account nominated by the wife an amount equivalent to the bond payable by the wife in respect of alternate residential premises provided that such amount shall not exceed $4,400.00.

5. Upon the wife vacating the property the husband pay, by way of spouse maintenance, a weekly amount equivalent to the rent payable by her on alternate residential premises up to a maximum of $1,100.00 per week by weekly deposit into a bank account nominated by the wife with the first deposit to be made on the first Monday after the nominated date.

6. Within seven (7) days of the date of this Order the Husband deliver the European motor vehicle registration number … (“the European motor vehicle”) to the property so that it may be used by the wife until the conclusion of the proceedings between the parties.

7. The husband pay or cause to be paid the comprehensive insurance and registration costs pertaining to the European motor vehicle as and when they fall due.

8. Should the European motor vehicle be involved in any motor vehicle accident or incident in respect of which a claim is made on the comprehensive insurance policy maintained in respect of it, the husband shall pay any excess payment arising out of such claim.

9. Upon the wife providing written advice, including a copy of any supporting documentation from Dr D and/or E Pty Ltd, to the husband’s solicitors:

   (a)that she intends to undertake treatment using the pharmaceutical F; and

   (b)that her oncologist, Dr D, has applied for access to the pharmaceutical F through E Pty Ltd; and

   (c)that she has been approved to use the pharmaceutical F by Dr D and E Pty Ltd; and

   (d)that she has applied or caused to have made an application for subsidy or insurance offset to her medical insurer BUPA; and

   (e)of the dates upon which she is to receive the first two doses of F as provided by E Pty Ltd,

   the husband shall, within 48 hours of receiving such advice, pay to the wife the sum of $7000.00 by way of spouse maintenance by deposit into a bank account nominated by the wife for use by her in the purchase and administration of two doses of the pharmaceutical F.

10. In the event that the wife is paid any health insurance payments or subsidy or rebate by her medical insurer BUPA in relation to her treatment with the pharmaceutical F, the wife shall ensure that such amount is paid to the husband by deposit into an account nominated by him.

11. Following the administration of the first four doses of the pharmaceutical F the wife shall obtain, from Dr D, a written report which particularises the effectiveness of the F treatment and, within 48 hours of its receipt, shall provide a copy of the same to the husband via his solicitors.

12. In the event that the written report referred to in (13) contains an opinion supporting the continued use of the pharmaceutical F in the wife’s ongoing treatment, the husband shall, within 7 days of the provision of such report pay to the wife a second sum of $7000.00 by way of spouse maintenance by deposit into a bank account nominated by the wife for use by her in the purchase and administration of a further two doses of the pharmaceutical F.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: No. BRC 2481 of 2010

Mr Bain

Applicant

And

Ms Bain

Respondent

REASONS FOR JUDGMENT

1. The wife was born in 1961.  She is a retired teacher having being discharged medically unfit as a consequence of the development of ovarian cancer and subsequent difficulties.

2. The husband was born in 1957. He is a self-employed solicitor operating his own firm.

3. The husband says that the parties were in a relationship for 30 years. They married in 1985 and, after 24 years of cohabitation, separated on 8 October 2009. They divorced on 21 December 2010. There are two adult children of the marriage, one of whom, aged 18 years, lives with the wife.

4. In 2007 the wife developed metastatic ovarian carcinoma which required extensive surgery and chemotherapy. Despite this treatment, the carcinoma returned in 2009 and the wife required more surgery and further chemotherapy.

5. In or about July 2009, the wife received a lump sum payment of $251,775.25 as a consequence of her having been deemed to be totally and permanently disabled (“the lump sum”).

6. In late January 2010, the wife’s treating medical practitioner of some 10 years or so informed that she suffered from persistent complications secondary to the treatments for ovarian cancer: namely, abdominal pain, diarrhoea, significant fatigue, persistent anxiety, and problems with bending.

7. In mid June 2013, the same treating practitioner informed that the wife is still suffering the effects of the ovarian cancer, had continued to require chemotherapy which has had a significant impact on her general health and has developed insulin-dependent diabetes as a consequence of her treatments. His evidence is that she remains unfit for any employment and requires ongoing monitoring, treatment and attendance upon specialists on a regular basis.

8. The wife filed a Response to an Amended Application in a Case on 25 February 2013 (“the Response”) in which she sought a raft of orders including for adult child maintenance, lump sum spouse or adult child maintenance, periodic spouse maintenance and litigation funding comprising a lump sum and a ‘dollar for dollar’ order.

9. Following orders I made on 18 June 2013, I heard only the wife’s application for interim spouse maintenance and litigation funding on 2 July 2013.  These Reasons deal solely with the issue of spousal maintenance.

10. I deal with this application against the background where:

    (a)the husband has available to him no less than $15,000.00 per month via Trust distribution from which he currently draws $2,000.00 per week and has paid his credit card and telephone expenses;[1]

    [1]Wife’s affidavit filed 21 June 2013, paragraph 21; Husband’s affidavit filed 28 June 2013, paragraph 12(a).

    (b)the husband has spent:

    (i)$5,000.00 at a jewellers in July 2012;

    (ii)$41,844.00 on travel expenses in December 2012;

    (iii)$71,248.00 on holiday accommodation in December 2012/January 2013;

    (iv)$22,885.00 on clothing and shoes in January 2013;

    (v)$8,794.00 on restaurants in December 2012/January 2013;

    (vi)$1,799.81 per month being repayments for the British motor vehicle driven by him in circumstances where the liability to continue to make such payments was re-negotiated in about February 2013.[2]

    (c)The corporate entity through which the husband’s law firm is, or was, at the relevant time, run, and in respect of which he is the sole director and majority shareholder, reported a retained profit for the year ended 30 June 2012 in the vicinity of $352,520.00.[3]

    [2] Wife’s affidavit filed 18 June 2013, Annexure ‘DAB-20’.

    [3] Wife’s affidavit filed 18 June 2013, Annexure ‘DAB-8’.

11. It is apparent, from the husband’s Financial Statement[4] that, for the financial year ended 30 June 2013, he spent, on average, the following per week:

    (a)$722.83.00 – entertainment/hobbies;

    (b)$2,221.03 – holidays;

    (c)$350.39 – gifts;

    (d)$298.72 – clothing and shoes,

    which together amounted to an annual expenditure of $186,835.03, or $3,592.98 per week on these items of, mostly, discretionary expenditure. It is immediately obvious that this amount alone significantly exceeded the $2,000.00 per week drawn by the husband from the monies paid into the Bain Lawyers Discretionary Trust No. 1.

    [4] Husband’s financial statement filed 28 June 2013.

12. The husband acknowledges that he has spent significant amounts of money in the last financial year but asserts that this was at a time when the “mining boom” was in full flight and that, since then, things have worsened. Whatever the explanation, the reality is that the husband determined to undertake significant expenditure in December 2012/January 2013 on matters which are purely discretionary in nature and which benefitted him alone.

The Wife’s Application for Spouse Maintenance

1. The wife asserts that the lump sum has been spent by her on her own maintenance and that none of these funds remain in existence. The husband does not accept this assertion.

2. As I understand the husband’s case, it is submitted, at least in part, that the wife has failed to account for part of the lump sum spent by her since its receipt. The husband asserts that an analysis of the wife’s bank account statements suggests that there is cash expenditure in the amount of $237,010.39 for which the wife cannot account. The wife deposes, within her affidavit filed 17 June 2013, that she spent approximately $202,643.00 in cash. Consequently, at this stage, it appears that there is a discrepancy in account in the vicinity of $35,000.00, noting the wife’s evidence that since separation in October 2009 she has had, largely, to support herself from the lump sum and has done so by withdrawing various amounts of cash at various times and using it to meet various expenses.

3. In Mitchell and Mitchell (1995) FLC 92-601 the Full Court said, at p.81,995:

   The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself ‘adequately’. Where the line is to be drawn will depend upon the circumstances of individual cases.

4. Given this and the respective positions of the parties, as discussed below, it is unnecessary that I consider the dispute about the lump sum in any further detail, at least in so far as this application for spouse maintenance is concerned.

5. In paragraph 1(b) of the Response, the wife seeks the payment to her by the husband of the sum of $10,600.00. However, no submissions were made by Counsel for the wife in relation to this amount and it became clear that she intends to seek the payment of this amount in her application for lump sum adult child maintenance.

6. As particularised in the Response, the wife’s claim for spouse maintenance is for:

   (a)$1,200.00 per week: paragraph 1(c)

   (b)provision of the European motor vehicle (“the European motor vehicle”) in good repair: paragraphs 2(a), (b) and (c);

   (c)payment of the registration and comprehensive insurance costs for the European: paragraphs 2(d) and (e);

   (d)$2,400.00 by way of payment of a bond, with such amount to become payable on any contract for sale of the former matrimonial home in which she resides becoming unconditional: paragraph 6;

   (e)$2,400.00 per month being the payment of rent costs in an amount of $600.00 per week: paragraph 6;

   (f)Payment of removalist costs which will become payable on her vacation of the former matrimonial home at a time after any contract for sale has become unconditional: paragraphs 7 and 8;

7. It was not in contest before me that the Husband will provide the Wife with the European motor vehicle and will be responsible for the payment of the registration and comprehensive insurance costs associated with it.

8. Despite the Response particularising the wife’s need for weekly spouse maintenance in an amount of $1,200.00 per week, a perusal of her affidavit filed on 21 June 2013 reveals that her current claim for periodic spouse maintenance is in the sum of $2,874.00 per week which comprises the following payments:

   (a)$1,100.00 per week for rent;

   (b)$600.00 per week for expenses;

   (c)$200.00 per week for car expenses;

   (d)$100.00 per week for general house expenses for ‘regular cleaning, shopping and cooking’;

   (e)$274.00 per week for medical expenses;

   (f)$600.00 per week for the costs of pharmaceutical therapy (F)

9. Despite the relatively recent nature of the affidavit material relied on by the wife, Counsel who appeared on her behalf submitted that her reasonable rental expenses should be in the same amount as that revealed by the husband in his updated material – that is, $1,350.00 per week.

10. The husband does not contest that the wife is unable adequately to support herself at present. He proposes that he make the following payments toward her needs:

    (a)$600.00 per week for rent in accordance with the Order made on 18 December 2012 by Forrest J.;

    (b)$600.00 per week for expenses;

    (c)NIL per week for car expenses on the basis that he will meet the costs of the registration and comprehensive insurance for the car and the claim for petrol and maintenance costs is included within the $600.00 per week provided for in paragraph 22(b);

    (d)NIL per week for general house expenses including a cleaner on the basis that the wife is capable of carrying out the tasks of ‘regular cleaning, shopping and cooking’ and thus has not established her need for the same;

    (e)up to $274.00 per week for medical expenses conditional that such payments be made in arrears and on the provision by the wife of receipts in respect of such expenditure;  and

    (f)NIL as a weekly payment for the costs of pharmaceutical therapy (F) but instead, conditional upon him being provided with written information confirming that the wife has been approved by her specialist medical practitioner to receive such therapy, the payment of $7,000 for use to obtain two doses of F.

11. The Court may, in proceedings such as this, make such order as it considers proper for the provision of maintenance to the wife.[5] There being no dispute that the wife is unable to support herself adequately by reason of physical incapacity for appropriate gainful employment, she is entitled to be maintained “adequately”, which imports a standard of living which is “reasonable in the circumstances”[6] this being the guiding principle. [7]

    [5] Family Law Act 1975 (Cth) s 74(1).

    [6] Nutting & Nutting (1978) FLC 90-410.

    [7] Stein & Stein [2000] FamCA 102 at p.4 of the Judgment.

12. In Brown and Brown (2007) FLC 93-316, the Full Court summarised[8] the principles, which had emerged from previous authority, as follows:

    (a)“adequately” is not to be determined according to any fixed or absolute standard;

    (b)“adequate” does not mean a subsistence level of support[9];

    (c)where possible, both spouses should continue to live, after separation, at the level previously enjoyed if this is reasonable although their standard of living may have to be lower if financial resources are insufficient to maintain that standard;

    (d)in some circumstances, it may be “reasonable” for the parties to live at a higher standard than previously enjoyed;

    (e)it is not necessary for an applicant to use up all capital in order to satisfy the requirement that that party is unable to support himself/herself adequately;

    (f)an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.

    [8] At p.81,455.

    [9] See also Mitchell and Mitchell (1995) FLC 92-601.

13. Counsel for the wife submitted that, having regard to the husband’s capacity and the ‘comparability’ argument, the Court would, in these circumstances, be persuaded that the amounts claimed by the wife for spousal maintenance are reasonable and do not exceed (save for medical expenses) the quantum of the expenses met by the husband for his own support.

14. Counsel submitted that the husband’s expenditure on holidays in the last 12 months equated to the wife’s entire claim if her medical expenses were excluded. Thus, it was said, the quantum of the wife’s claim was clearly ‘reasonable’.

The claim for rental expenses

1. On 18 December 2012 Forrest J. ordered relevantly, inter alia, that, upon the Wife vacating the former matrimonial home at or before the settlement of its sale, the Husband pay to her into a bank account nominated by her:

   (a)until further order, an amount equivalent to the rent payable by her on alternate residential premise up to a maximum amount of $600.00 per week; and

   (b)an amount equivalent to the bond payable by her on alternate residential premises.

2. Counsel for the wife submitted that the $600.00 per week ordered by Forrest J. was the equivalent of the husband’s then rental costs and that, as his current rental costs are now $1,350.00 per week, the quantification of the wife’s reasonable need for alternate accommodation should be in the same amount.

3. It was submitted that the wife’s argument in this respect is one of ‘comparability’: namely, that as the husband has recently rented a three-bedroom house with a study at a cost of $1350.00 per week, when she commences to live in rented premises, her reasonable needs should be properly quantified in the same amount, particularly given that one of the parties’ adult children lives with her.

4. The wife’s evidence is that she could obtain a three-bedroom, three bathroom split level executive furnished apartment at a cost of $1,100.00 per week.[10]

   [10] Wife’s affidavit filed 18 June 2013, annexure ‘DAB-6’.

5. In response, Counsel for the husband submitted that the order made on 18 December 2012 should continue. Counsel submitted that, as the wife’s asserted reasonable weekly accommodation expenses has changed from $600 per week (as assessed and ordered by Forrest J.) to $1,100.00 per week (as claimed in her affidavit filed on 21 June 2013) to $1,350.00 per week (following her receipt of the husband’s material), the higher amounts did not actually represent the quantification of her need for accommodation but were, rather, an attempt to ensure that she matched the husband. Counsel further submitted that it is a matter of need not comparability when a claim for spouse maintenance is considered.

6. I accept that the wife’s sworn material evidences changes in her quantification of her reasonable accommodation expenses: in her affidavit filed on 17 June 2013 she seeks[11] an amount of $1,350.00 per week whereas, curiously, in her affidavit filed on 21 June 2013 she seeks $1,100.00[12]. I might have thought, given the way in which the later affidavit is drafted (referring as it does to ‘as I have previously deposed’) it was nothing more than a typographical error but the wife goes on to make the point that she is ‘seeking $250.00 less per week than the husband is currently paying for his rent.’ 

   [11] at paragraph 37.

   [12] at paragraph 14.

1. Counsel referred to the husband’s affidavit material in which there is provided by him evidence as to accommodation available in C Town.  Counsel submitted that the husband’s evidence established that the wife could obtain a large apartment with river and city views or a large family home at a cost of between $500.00 and $630.00 per week. Thus, it was said, her need for alternate accommodation when she moves out of the former matrimonial home can be met by a payment of $600.00 per week.

2. The husband acknowledges that his current rental for his premises is $1,350.00 per week. However, he says that there is no need for the wife to have such accommodation as she is capable of obtaining suitable accommodation by spending $600 per week.

3. The submissions about the existence of ‘suitable’ accommodation for the wife may have been more persuasive if the husband’s own expenditure, as outlined in paragraphs 10 and 11, had been more moderate. Even with the inherent limitations associated with interim proceedings such as these, it is clear that the husband’s expenditure on matters in which he has been involved and from which he has benefitted has been, to say the least, ‘generous’.

4. Given the level of discretionary expenditure undertaken by the husband in the last financial year as summarised above and his decision to commit himself to rental expenses of $1350 per week and car lease repayments of approximately $1700 per week, I consider that the wife’s reasonable rental expenses are $1,100.00 per week and that it is proper that she receive, by way of spouse maintenance, such sum toward the costs of rental accommodation after she vacates the former matrimonial home.

The weekly expenses

1. As noted above, the husband accepts the wife’s need for the payment of $600.00 per week to meet her weekly expenses.

The car

1. The wife seeks[13] that the husband provide her with a motor vehicle including the maintenance and upkeep costs, including but not limited to petrol, registration, and insurance in the amount of $50.00 a week, and that, if any repairs or services are required to be carried out, he be responsible for the cost of the same.

   [13] Wife’s affidavit filed 21 June 2013 at paragraph 16.

2. Counsel for the wife submitted that the wife’s claim of $200.00 per week for maintenance, insurance and registration of the car is reasonable. Whilst the wife accepted the husband’s proposal that he provide the European motor vehicle to her, she sought, in addition to this, that the husband meet the costs associated with it.

3. It was submitted that the husband has a clear capacity to meet such sum and that he should pay $200.00 per week or provide to the wife the SUV or British motor-vehicle in a fully registered, maintained state together with the provision of $50.00 per week for petrol.

4. Counsel for the husband submitted that the wife’s claim for $600.00 per week contained an amount for petrol and maintenance totalling some $75.00 per week. Counsel submitted that, as the husband was now prepared to provide the wife with the European motor vehicle until the conclusion of proceedings between them and to pay the registration and comprehensive insurance for the same on an ongoing basis, the wife’s needs have already been met.

5. However, I note that, in the wife’s Financial Statement filed 24 February 2013, her weekly need was quantified at $666.00 and not the $600.00 per week the husband has agreed to pay to her. Included within the $666.00 per week is an amount of $75.00 as the estimated expense for petrol and maintenance costs for a motor vehicle.

6. I consider that the wife’s quantification of the costs of petrol and maintenance in the amount of $75.00 per week is reasonable. I find, noting again the husband’s decision to spend significant amounts of money on his discretionary ‘needs’, that it is proper that the husband pay to the wife the sum of $75.00 per week for petrol and maintenance expenses, in addition to the $600 per week he has agreed to pay and that, in addition to this, he meet the payments for the registration and comprehensive insurance of the motor-vehicle as he proposes. Whilst the $75 is $9.00 per week more than the wife estimates for ‘her’ portion of such expenditure, the total cost of ‘petrol and maintenance’ as particularised in her Financial Statement is $110.00 per week. I consider it reasonable to allow some leeway when a party is estimating that proportion of the total cost which is attributable to their need.

7. Counsel noted that the husband sought an order that if the wife was involved in an accident she pay any ‘excess’ payment that may be necessitated by such event. I am not persuaded that this is reasonable or proper given:

   (a)the significant financial disparity between the parties; and

   (b)that the husband seeks that the European motor vehicle be returned to him at the conclusion of proceedings.

General housekeeping costs of $100.00 per week

1. Counsel for the wife referred to the wife’s evidence as to the need for the payment of $100.00 per week for general housekeeping expenses. He submitted that the wife’s circumstances are such that, given the husband’s resources and her ill-health, it is not an unreasonable expense on her part.

2. The wife’s evidence is that she has required assistance with house maintenance and cleaning and that for quite some time now she has been unable to attend to general house tasks including regular cleaning, shopping and cooking. She says that, whilst the parties’ adult daughter assists her greatly with these tasks, she cannot be there all of the time.

3. Counsel for the husband submitted that, on the evidence before me, I would not be persuaded that the wife had established a need for such assistance. Counsel submitted that whilst the wife asserts that she can’t do certain things these matters are nothing other than assertions and do not amount to evidence.

4. In addition, Counsel referred to Annexures to the wife’s material which clearly established her shopping and engaging in activities such as visiting restaurants and cafes and travelling in 2012. It was submitted, in essence, that because the wife can undertake these activities and events, I would not be persuaded that she has established a need for the payment for general household expenses or housekeeping expenses.

5. Counsel also reiterated that there was no medical evidence before the Court about the wife’s incapacity to attend to her own ‘general housekeeping’.

6. As at January 2010, the wife’s general practitioner stated that she required assistance with house maintenance and cleaning as she was unable to bend due to her recurrent abdominal pain. This abdominal pain appears to have been a complication secondary to the extensive intra-abdominal surgery endured by the wife. In June 2013, the wife’s general practitioner noted that she continued to have chemotherapy to manage her carcinoma and stated that this has a “significant impact” on her general health.

7. In all the circumstances before me, including that the Wife currently receives chemotherapy on a monthly basis and has side-effects associated with this and her underlying condition, as evidenced also by the details of the medications she takes on a regular basis, I am persuaded that this expense is a reasonable one for the Wife.

8. I am also satisfied, given the husband’s significant financial capacity, as demonstrated by recent decisions to engage in highly discretionary expenditure, that he has the capacity to make such a payment and that it is proper that he do so.

Wife’s medical expenses

1. The wife seeks the payment of $274.00 per week so as to enable her to meet medical expenses as they occur. This amount was said to be the average amount spent by the wife on such items accepting that there may be weeks where the wife is called upon to pay more than $274.00 per week and other weeks in which her costs were less.

2. As at June 2013, the wife is undergoing chemotherapy once per month. She also receives antiemetic drugs and a blood transfusion once per month. She says that on occasions she is hospitalised as a consequence of her severe symptoms following chemotherapy and that such visits are costly as she is usually admitted via the Emergency Department at a cost of $400.00 per visit with “minimal” medical rebate.

3. The wife says that she incurs pharmaceutical, x-ray, test, and medical specialist expenses associated with her treatment. She says that her medications are ongoing and costly and that she requires consultations with, and treatments from, numerous specialists including an endocrinologist, dermatologist, oncologist, gynaecological oncologist, and her general practitioner. As the specialists upon whom she attends do not “bulk bill” her expenses are particularly high.

4. The wife has provided a detailed breakdown[14] of her regular medications. Her evidence establishes a monthly cost of $1,058.40 or $264.60 per week.

   [14]Wife’s affidavit filed 18 June 2013 Annexure ‘DAB-5’.

5. In correspondence dated 20 June 2013, the wife’s medical practitioner advises that, having reviewed the list of her current medications and ancillary treatments, he believes the same to be appropriate and necessary for the ongoing management of her medical conditions and that, whilst they are costly, they are necessary.[15] I accept his unchallenged evidence.

   [15]Wife’s affidavit filed 21 June 2013Annexure ‘DAB-3’.

6. Counsel for the husband submitted that, whilst it was not unreasonable to fix a maximum of $274.00 per week for the payment of the wife’s medical expenses, the husband should only be called on to pay such expenses in arrears and following the provision to him of receipts or other documents confirming the actual expenditure. Counsel submitted that payment of the medical expenses in such a manner would not disadvantage the wife.

7. I accept the submission made by Counsel for the wife that it is reasonable that her need for medical expenditure, which has been satisfactorily established, be met by a weekly payment so as to ensure that she is able to meet medical expenses as and when they arise. I am not persuaded that it is reasonable to require the wife receive monies for ongoing medical expenses in arrears and I am persuaded that it is more likely than not that such a regime would add to her current burdens as she continues with her treatment. I consider it proper that the husband pay the sum of $274.00 per week in order to meet the wife’s medical expenses.

Cost of Wife’s pharmaceutical therapy

1. The wife’s oncologist, Dr D, has recently recommended she trial the use of a drug, F, which has had some very positive outcomes in recent trials involving those who, like her, suffer from recurrent ovarian cancer.

2. F is not on the PBS and costs between about $3,500.00 and $4,000.00 per dose. Dr D says that the Wife requires one dose of F every three weeks. It may be possible to have the supplier of the drug match the wife’s purchase of the drug on a one for one basis such that, if she bought two doses, the supplier may provide two doses at no cost. If this were the case, the wife says that she would pay for two lots of treatment every 12 weeks which would equate to, on an averaging basis, approximately $600.00 per week. Without sufficient spouse maintenance, the wife is unable to afford this treatment.

3. Counsel for the wife submitted that, whilst the husband proposed to pay $7000.00 by way of lump sum following the provision of information by Dr D and a report in relation to the treatment, she sought an order for $600.00 per week for the treatment whilst she is receiving it. She was agreeable to providing information to the husband about her receipt of the treatment as well as whether it was recommended that she continue to receive it.

4. Counsel for the husband submitted that Dr D’s evidence was a recommendation and no more than that. I consider that the wife’s ability to trial this new drug to be a reasonable need in circumstances where she has been diagnosed with stage III ovarian cancer.

5. The husband’s case was that the wife provide him with evidence as to the nature of the treatment and the need for it on an ongoing basis. It was submitted that the number of doses required depended on the effectiveness of the treatment and if the treatment was not effective it would not be recommended. Counsel submitted that the wife should commence treatment and provide necessary documentation to substantiate her ongoing need for the treatment to the husband and he would pay for two doses upon being assured that it is efficacious.

6. Counsel for the husband submitted against the making of an open-ended order and informed me that the husband sought to wait for an updated report from Dr D prior to making any further commitment to the payment of such significant sums towards the wife’s cost of treatment.

7. I consider that, as the husband has available to him sufficient income to allow him to embark upon a course of significant discretionary expenditure in the last financial year, it is proper that the wife be placed in a position to meet what I consider a clearly established need to embark upon the use of F.

8. In saying this, I also consider it appropriate that the wife provide to the husband documentary evidence from Dr D in support of his prescription to her of the drug. In order to ensure, should the wife be successful in obtaining a prescription for the drug and the agreement of the supplier to match her purchase of doses in the manner described above, that there is no delay in the wife commencing such treatment, I consider it appropriate to make orders to the effect that upon the wife providing the husband with correspondence from Dr D supporting that she commence receiving F and that it can be purchased by her for use, the husband pay to her, within 48 hours, the sum of $7000.00 for use by her in purchasing two doses of F.

9. I consider it reasonable that the wife continue to provide to the husband all reports and information provided to her by Dr D or any other treating specialist which outlines the efficacy of the treatment and contains recommendations as to its future suitability for her. I consider it reasonable that the husband provide to the wife, within seven (7) days of the provision of a report from Dr D which supports the continuation of the F treatment, a further sum of $7000.00 in order to provide the funds necessary for her to purchase a further two doses of the drug.

10. In that way, I can be confident that, if the medical evidence is to the effect that it is beneficial for the wife to continue to receive F, she will be placed in a position that her purchase of the drug is assured for the next six months.

11. Whilst the husband sought that the characterisation of the funds payable by him to the wife be deferred to the trial judge, I consider that I am in the best position to make such determination.

12. For the reasons outlined above, I consider it proper that the husband pay to the wife by way of spouse maintenance the following amounts:

    (a)$1,049.00 per week by payment into a bank account nominated by the wife with the first such payment to be made on Monday 29 July 2013 and, thereafter, on each Monday;

    (b)upon the wife vacating the former matrimonial home, $1,100.00 per week and an amount equivalent to the bond payable by her for alternative accommodation by payment into a bank account nominated by the wife;

    (c)$7,000.00 upon the wife’s compliance with the requirement that she provide the husband with the information outlined in paragraph 68; and

    (d)a further $7,000.00 upon compliance with the requirements outlined in paragraph 69.

13. Further, given the husband’s acceptance, on 2 July 2013 that the wife had a need for maintenance quantified in the sum of $600.00 per week and my finding as to her need for medical expenses quantified in the amount of $274.00 per week, I consider it proper that he pay spouse maintenance in the sum of $3,496.00 (being these amounts for the period since 2 July 2013), to the wife by 4.00pm on Wednesday 31 July 2013.

14. I order accordingly.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 26 July 2013.

Associate:

Date: 26 July 2013