BAINE & BAINE

FAMILY COURT OF AUSTRALIA

BAINE & BAINE

[2012] FamCA 741

FAMILY LAW – PROPERTY – interim orders – application by the wife seeking orders for the sale of a speed boat and motor vehicle and the proceeds of the sale be used to meet school fees and the balance be used to meet her legal fees – where the husband did not oppose the sale of the assets – where the husband proposed that the proceeds of the sale be used to reduce the credit card and business debts – orders that the speed boat and motor vehicle be sold and the proceeds used to meet school fees and the balance paid to the wife by way of interim spousal maintenance.

FAMILY LAW – SPOUSAL MAINTENANCE – interim orders – application by the wife seeking orders that the husband pay the sum of $1,000 per week by way of interim spousal maintenance in addition to other substantial outgoings – where the wife is suffering from serious health difficulties – where the husband argued that he did not have the capacity to make any further payment to the wife – where the Court was of the view that the sale of the speed boat and the car would significantly reduce the liabilities of the husband – where the Court was of the view that the husband would have the capacity to pay – orders that the husband pay the wife the sum of $500 per week by way of interim spousal maintenance in addition to other expenses.

Family Law Act 1975 (Cth) ss 72, 74(1), 75, 77 & 80

Williamson and Williamson (1978) FLC 90-505

APPLICANT:

Ms Baine

RESPONDENT:

Mr Baine

FILE NUMBER:

ADC

721

2012

DATE DELIVERED:

31 August 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

30 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Berman SC

SOLICITOR FOR THE APPLICANT:

Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Holland

SOLICITOR FOR THE RESPONDENT:

David Burrell & Co

Orders

That within one (1) calendar month from today the … Speed Boat and the …sports car registration “…” be placed on the market for sale upon such terms and conditions as the parties shall agree in writing.
The sale proceeds of each be paid to the trust account of the lawyers for the wife to be applied as follows:
(a)In payment and discharge finance on the sports car;
(b)In payment of any arrears due to School P;
(c)In payment of any arrears due to College P; and
(d)In payment of the balance by way of interim maintenance to the wife.
By way of further interim spouse maintenance for the wife the husband pay for and on behalf of the wife as and when they fall due the following expenses;
(a)       ANZ Mortgages for Property H and Property S;
(b)      The wife’s taxation liabilities (past, present and future);
(c)      All the Mercedes motor vehicle expenses;
(d)The minimum monthly repayments on the NAB Credit Cards in the wife’s sole name;
(e)The minimum monthly repayments on the Business J account;
(f)Her health insurance;
(g)Her life insurance;
(h)All medical and allied health tax invoices including tai chi and yoga;
(i)All chemist and pharmaceutical and naturopath product tax invoices;
(j)All medical gap payments and excess payments;
(k)All house, contents and motor vehicle insurance;
(l)Gardening and lawn mowing tax invoices;
(m)House, pool, window and carpet cleaning tax invoices;
(n)Council rates;
(o)Home security monitoring as evidenced by tax invoice;
(p)Emergency Services Levy as evidenced by tax invoice;
(q)AGL as evidenced by tax invoice;
(r)TELSTRA as evidenced by tax invoice;
(s)SA Water as evidenced by tax invoice;
(t)IT Support and maintenance and upgrades as and when required as evidenced by tax invoice;
(u)Internet connection as evidenced by tax invoice;
(v)Foxtel as evidenced by tax invoice;
(w)Pura tap replacement and servicing as evidenced by tax invoice;
(x)Pool and Spa Chemicals as evidenced by tax invoice;
(y)Pest control inspections as evidenced by tax invoice;
In addition by way of further interim spouse maintenance the husband pay to the wife by way of automatic bank transfer to the bank account of the wife as nominated in writing by her to the husband’s solicitors within seven (7) days from the date hereof the sum of FIVE HUNDRED DOLLARS [$500.00] per week on each Monday.
The question of costs of the application is reserved to a date to be fixed if not agreed by the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baine & Baine 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 ADELAIDE

FILE NUMBER: ADC 721 of 2012

Ms Baine

Applicant

And

Mr Baine

Respondent

REASONS FOR JUDGMENT

Introduction

In the Initiating Application filed by the wife Ms Baine on the 24 February 2012 the wife sought certain orders. Some of the orders sought by the wife were orders made by consent on 1 March 2012. Further interim orders were made by consent when the matter was heard by me on 30 March 2012. The interim issues which remain to be determined were the orders sought by the wife for the sale of the speed boat and motor vehicle and distribution of the proceeds from the said sales (as set out in paragraph 11 of the interim orders sought by the wife) and the interim spousal maintenance sought by the wife in paragraphs 13 to 17. The husband did not oppose an order for the sale of the speed boat and motor vehicle but did oppose the distribution of the proceeds of sale as sought by the wife. The husband opposed the interim maintenance orders sought by the wife.

Hearing

At the hearing of the interim maintenance and interim property settlement orders the parties relied on the application, response, affidavits and financial statements filed by the parties prior to 30 March 2012 and further details in relation to Part N of the wife’s Financial Statement. At the conclusion of the submissions counsel indicated that they wished to have an opportunity to negotiate a settlement of the outstanding issues. The court indicated that judgment would be reserved on the basis that if the parties resolved the issues they should inform the court of the resolution. No such information has yet been provided to the court.
At the hearing Mr Berman SC of counsel appeared for the applicant wife and Mr Holland appeared for the respondent husband.

Issues

The husband maintained that the expenses for the wife which he was currently paying provided significant and sufficient maintenance for the wife. The wife maintained that the amount of maintenance which was sought was reasonable in the circumstances. The husband also maintained that he was unable to meet all of the payments and the maintenance sought by the wife.
The wife sought the sale of the speed boat and motor vehicle on the basis that the proceeds of the sale would be used to pay the arrears of school fees which have accrued for the children’s private school and that the balance be paid to her to assist her in paying her legal fees. The husband conceded that he had no objection to the sale of the speed boat or the sports car but did object to the proposal to disburse the funds by payment of the arrears of school fees or any payment to the wife. The husband proposed that the proceeds be used to reduce the credit card debts or business debts.

Background

The applicant wife Ms Bains was born in 1966 (“the wife”) and is currently aged 46. The respondent husband Mr Bains was born in 1966 (“the husband”) and is currently 45 years of age.
The parties commenced cohabitation at the date of their marriage in 1990. There are two children of the marriage, B born in February 1995 and L born in February 1998. The children currently reside with the wife.
During the marriage the parties owned and operated the business G Pty Ltd. The company is the major source of income for the parties.
After nearly 21 years of marriage the parties separated on 22 June 2011. Upon separation the husband left the matrimonial home.
The wife was diagnosed with breast cancer in 2011. She underwent major surgery and is currently undergoing chemotherapy and was expected to receive radiotherapy.
The wife’s application for interim spouse maintenance in the Initiating Application is very detailed and specific.
The application seeks orders:
11.That immediately the […] speed boat and the [sports car] registration “[…]” be sold immediately upon such terms and conditions as agreed in writing between the parties and that the sale proceeds be paid to the BBS Lawyers Trust account on behalf of the wife and applied in the following manner and priority:
11.1Repayment and discharge of the finance on the [sports car];
11.2The payment of the arrears to [School P];
11.3The payment of the arrears to [College P]; and
11.4The balance to the wife by way of interim maintenance or Barro Order.
12. …
13.That to facilitate and by way of interim maintenance for the wife within 48 hours the husband do open a new credit card or debit card account in his sole name with the wife as a secondary card holder and provide to the wife the secondary card with a limit of not less that $20,000.00 per month for the wife to use for all interim maintenance purchases and that the husband do repay the account on a monthly basis in full and indemnify the wife in respect of the same to her complete exoneration.
14.Otherwise that by way of interim maintenance on behalf of the wife the husband pay for and on behalf of the wife as and when they fall due the following expenses:
14.1ANZ Mortgages for [Property H and Property S];
14.2The wife’s taxation liabilities (past, present and future);
14.3All the Mercedes […] motor vehicle expenses;
14.4The minimum monthly repayments on the NAB Credit Cards in the wife’s sole name;
14.5The minimum monthly repayments on the [Business J] account;
15.That by way of interim maintenance on behalf of the wife the husband reimburse by way of automatic transfer to the bank account of the wife as nominated by her for the following direct debit expenses from her account:
15.1Her health insurance;
15.2Her life insurance; and
15.3Such other direct debits from the wife’s accounts as advised by the wife’s lawyer in writing.
16.That by way of interim maintenance on behalf of the wife the husband reimburse the wife by way or automatic bank transfer to the bank account of the wife as nominated by her upon presentation of tax invoice within seven (7) days for the following personal expenses and household expenses for both Property H and Property S where they are not direct debited from the wife’s account:-
16.1All medical and allied health tax invoices including tai chi and yoga;
16.2All chemist and pharmaceutical and naturopath product tax invoices;
16.3All medical gap payments and excess payments;
16.4All house, contents and motor vehicle insurance;
16.5Gardening and lawn mowing tax invoices;
16.6House, pool, window and carpet cleaning tax invoices;
16.7Council rates;
16.8Home security monitoring as evidenced by tax invoice;
16.9Emergency Services Levy as evidenced by tax invoice;
16.10AGL as evidenced by tax invoice;
16.11TELSTRA as evidenced by tax invoice;
16.12SA Water as evidenced by tax invoice;
16.13IT Support and maintenance and upgrades as and when required as evidenced by tax invoice;
16.14Internet connection as evidenced by tax invoice;
16.15Foxtel as evidenced by tax invoice;
16.16Pura tap replacement and servicing as evidenced by tax invoice;
16.17Pool and Spa Chemicals as evidenced by tax invoice;
16.18Pest control inspections as evidenced by tax invoice;
16.19Stationery including but not limited to stamps, printer cartridges and paper as evidenced by tax invoice;
16.20Post office box at Firle Post Office as evidenced by tax invoice;
16.21All education expenses as evidenced by tax invoice;
16.22The pet expenses including pet insurance as evidence by tax invoice.
17.That in addition by way of interim maintenance on behalf of the wife the husband pay by way of automatic bank transfer to the bank account of the wife as nominated by her the sum of $1,000.00 each week on a Monday.

In her affidavit filed on 24 February 2012 the wife alleges that the speed boat owned by the husband is worth approximately $35,000 to $40,000 and the sports car (which is an asset of the Baine Trust) is worth approximately $200,000 and is subject to Esanda Finance of approximately $115,000 as at January 2012. The sports car repayments to Esanda Finance are in excess of $2,300 per month.
The wife relied upon the affidavit of Ms M filed on 7 March 2012. Ms M is a Chartered Accountant. Her affidavit includes an assessment by her of the available income based upon the finances to the year ended 30 June 2011. The affidavit includes paragraph 16 which states that “the after tax net available income for the [Baine] Group for the financial year ended 30 June 2012 is $298,231.00”.
The husband however, disputes the current available income. In paragraph 29 of his affidavit he asserts that based upon his assessment and draft management accounts for G Pty Ltd the profit for the trust for the six months to 31 December 2011 was $61,181. Other income available as set out in paragraph 30 of his affidavit was “$28,842 together with my salary and drawings of $100,000 per annum”.
In paragraph 31 he maintains “the total projected income that will be available to meet all of the expenses of the business and the wife and my personal expenses is $251,204”. The annexures set out what the husband maintains as the ability of the various entities to meet the business expenses and personal expenses.
Paragraph 42 of the husband’s affidavit is as follows:-
In summary, there is simply not sufficient income to be able to continue to meet all of the personal and business borrowings on a monthly basis. I am concerned that as and from 30/4/2012, the business will not have sufficient income to meet its expenses. I have been advised about my responsibility regarding the business trading insolvent and I am gravely concerned that if this matter is not able to be resolved shortly then as and from 30/4/2012, the business have to go into voluntary liquidation. I am not prepared to allow the company to trade insolvent. I have previously raised this concern with the wife via her solicitors. Annexed hereto and marked “K” is a true copy of a letter from David Burrell & Co to BBS Lawyers dated 3 November 2011.
Paragraph 45 of the husband’s affidavit is as follows:-
I am currently not in the financial position to be able to deal with the arrears owing to [College P] but I am hopeful to be able to do so when this matter is resolved and when [Property S] is sold.
The husband says in paragraphs 54 and 55 that he does not oppose the sale of the speed boat and sports car. He says however, that the value of the speed boat “would be approximately $20,000” and that the sports car is valued “at approximately $180,000 and accordingly, the equity with respect to same is $65,000”.

The Law

Section 72 of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:
(1)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)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
Section 74(1) provides:
(1)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.
Section 75 provides:
(1)In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
(2)      The matters to be so taken into account are:
(a)       the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)         himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)         the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)        a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
(4)     In this section:
“party” means a party to the marriage concerned.

Section 77 provides:
Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.
Section 80 provides:
(1)The court, in exercising its powers under this Part, may do any or all of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(b)order payment of a weekly, monthly, yearly or other periodic sum;
(ba)order that a specific transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d)order that any necessary deed or instrument be executed and that such documents of title produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e)appoint or remove trustees;
(f)order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i)impose terms and conditions;
(j)make an order by consent;
(k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l)subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
(2)The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.
(3)The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.
(4)If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt.
(5)If the trustee of a personal insolvency agreement is a party to a proceedings before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement.
(6)Subsections (4) and (5) do not limit paragraph (1)(d).
The power to be exercised under section 77 is the power to make an order where a party is in immediate need of financial assistance.
On interim maintenance applications the court does not conduct “as final or exhaustive a hearing as would be the case if one were hearing the matter finally” (Williamson and Williamson (1978) FLC 90-505).

Discussion and Findings

The wife’s health and employment background establishes that she is a person qualified to receive maintenance being a person who is unable to support herself adequately by reason of her incapacity for appropriate gainful employment.
The main issues to be determined were the obligation of the husband to make payment of the amount sought by the wife and whether he was reasonably able to do so in his current financial circumstances.
Other matters which were not in dispute were the fact that the husband had been assessed to pay child support and was paying $522 per week for the two children of the parties who continue to reside with the wife.
The significant matters to be determined in this interim application are those in sections 75(2)(b) in so far as it relates to the income, property and financial resources of the husband, sections 75(2)(d) and 75(2)(g).
At the hearing before the Court the husband indicated that he was prepared to continue to pay the expenses set out in paragraphs 14, 15 and 16 of the wife’s application for interim orders which form part of the Initiating Application (Document 1).
In paragraph 44 of the husband’s affidavit (Document 7) the husband refers to the payments which he was “already paying” on behalf of the wife, namely the mortgage payments on the mortgages over both Property H and Property S, the outgoings associated with both properties and insurances related to all assets including health insurance for the family, the minimum credit card repayments, the children’s school fees, the wife’s motor vehicle expenses and loan repayments and the sum of $2,265.83 per month by way of child support.
The school fees are in arrears. The husband said he was paying $1,600 per month to reduce the arrears. The wife’s affidavit filed on 24 February 2012 indicated that at that time the sum of $11,937.50 was owing to School P and $6,930 owing to College P. If the speed boat and sports car were sold and the school fees arrears paid there would still be funds left to distribute by way of interim property settlement or held pending the final orders.
If the husband has continued to pay the sum of $1,600 per month to reduce the school fees, the amount now owing would be much less. (The husband in his affidavit filed on 26 March 2012 says in paragraph 44 that “the payment of the school fees alone is $1,600 per month”). If the arrears are all discharged from the sale proceeds this amount would then be available from the husband’s current income for other needs.
The items which the husband is prepared to continue to pay include items 14.1, 14.3, 14.4, 14.5 and 15.1. It is not clear whether the husband also includes in the payments he is prepared to make 15.2 (being the wife’s life insurance). The outgoings for the property which the husband is prepared to pay would appear to cover 16.4 to 16.18.
The husband says that there are “simply insufficient funds” for him to pay further amounts. He expresses the concern that the business would become insolvent.
The Financial Statement of the wife filed on 24 February 2012 at item 14 sets out “Benefits from employment/business.” It states “Motor vehicle finance with […] Finance, maintenance, registration, insurance vehicle cleaning, tyres and RAA membership” which she estimated to be $735.00 per week in addition to her “Mobile telephone account” which is estimated to be $10.00 per week.
Under the items of personal expenditure the following are noted “to be paid by husband” as weekly amounts:-
(1) Total income tax based on 2011 financial year of $17,391.75              $335.00
(2) ANZ mortgage repayments for Property H  $260.00
(3) Rates/Land Tax for Property H  $41.00
(4) One Path Life insurance  $80.00
(5) Elders House and Contents Insurance for Property H  $49.00
(6) Health Partners Health Insurance  $85.00
(7) NAB Visa Gold payment  $57.00
(8) NAB Visa payment  $20.00
Total  $927.00
The Financial Statement also refers to Baine Trust paying $4,456 in expenses per week.
The total of the wife’s “other expenditure in Part N” is $3,511 being $1,928 for the wife herself and $1,583 for the children.
The additional information supplied by counsel at the time of the hearing referred to the amount of $673 per week for maintenance for the wife. The smaller sum did not include items such as house repairs, gas, electricity, medical and dental insurance, gardening, cleaning or water. The items which the wife did include were:-
(1) Food  $100.00
(2) Household supplies  $16.00
(3) Fares/car parking  $12.00
(4) Clothing and shoes  $140.00
(5) Entertainment and hobbies  $125.00
(6) Holidays  $38.00
(7) Repairs  $20.00
(8) Dry cleaning  $20.00
(9) Gifts  $116.00
(10) Hairdressing and toiletries   $85.00
(11) Driver’s License  $1.00
Total  $673.00
The Financial Statement filed by the husband on 26 March 2012 sets out his weekly “Total salary or wages before tax” on average, to be $1923. This is in addition to the weekly “Income from business/partnership/company/trust” he receives from the Baine Trust of $2,353 which when considered together with his salary, totals $4,276.
In personal expenditure the husband sets out his expenses including income tax, rent, mortgage payments, council rates, insurances, credit card payments and child support. These total $3,846.
At Part H the husband claims to pay personal expenses on behalf of the wife “[Property H and Property S]” outgoings of $500 and for the children “School fees, mobile phone” of $852 per week. One of the other items included in Item 32 is “business loan repayments - $3,545”. This is not consistent with the liabilities which refers to mortgages, income tax assessed and unpaid, credit card debts and legal fees.
Part N of the husband’s Financial Statement sets out the other average weekly expenses of the husband which total $695 per week including “Entertainment/hobbies” of $100. Annexed to the husband’s Financial Statement are documents headed “MONTHLY EXPENSES PAID FROM NET PROFIT – BEFORE INCOME TAX” and “STATEMENT OF FINANCIAL POSITION – FEBRUARY 2012” showing various loan payments and expenses and “TOTAL PROJECTED 2012 INCOME – BEFORE INCOME TAX” of $251,204.00.
The parties do not agree the available company income or the resulting capacity of the husband to meet any further claim for spouse maintenance.
The affidavit of Ms M the chartered accountant expert instructed by the wife’s solicitors (being the affidavit filed on 7 March 2012) makes certain assumptions and carries out calculations. As previously indicated paragraph 16 states “the after tax net available income for the [Baine] Group for the financial year ending 30 June 2012 is $298,231”.
This contrasts with the Financial Statement filed by the husband on 26 March 2012 which assesses the “TOTAL PROJECTED 2012 INCOME – BEFORE INCOME TAX” of $251,204.00.
There is some difficulty with the interrelationship between the amount attributed by the husband to the expenses he pays on behalf of the wife and the calculation of the amount the wife says the husband is already paying on her behalf.
Taking into account however those difficulties it is clear from the evidence before the Court that wife is unable to support herself and her obligation to provide support for the children on the income available to her from dividends, family tax benefit, child support and the motor vehicles benefits paid by the business.
The wife seeks that the husband continue to pay not only the expenses in relation to the real estate, motor vehicles, health insurance and household outgoings, but also make a substantial contribution namely a further $1,000 per week for spouse maintenance. (See paragraph 17 of the interim orders sought by the wife in the Initiating Application).
It is necessary to consider the expenses claimed by the wife which totalled $673 per week (being the further amended figures provided by counsel at the hearing in March 2012). The only figures which could raise any substantial argument are the amounts claimed for clothing and shoes of $140 per week, entertainment and hobbies of $125 per week, hairdressing/toiletries of $85 per week and gifts of $116 per week. Taking into account the parties’ former lifestyle, the wife’s current health difficulties and the ages of the children these would not necessarily be considered excessive.
With some adjustment of these figures the wife establishes without any difficulty a need for a further $500 per week by way of maintenance over and above the items in paragraphs 14, 15.1 and 15.2, 16.1 to 16.18.
The substantial projected income of the business group set out in Ms M’s affidavit and the husband’s lower figure when considered together with the reduction in monthly payments which would be brought about by the sale of the speed boat and the sports car supports a finding on an interim basis that the husband is reasonably able to pay the outgoings referred to together with the further sum of $500 per week.
This finding is based on the capacity of the husband to obtain an income from the business from which to pay the wife, the assets and liabilities of the husband and the group over which the husband exercises control and the property and financial resources under the control of the husband.

Conclusion

Considering the significant factors under section 75 on an interim basis, taking into account the conclusion to be drawn from the financial records and information provided by each of the parties the relevant matters set out in section 75(2) support a finding that the husband is reasonably able to support the wife who is unable to support herself adequately. Taking into account the matters to be considered under section 75 it is appropriate that the husband continue to pay the substantial number of outgoings sought by the wife together with the sum of $500 per week.
The amount remaining from proceeds of sale of the speedboat and the sports car after the payment of the arrears of school fees will provide the wife with further funds to meet her reasonable needs on an interim basis.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 31 August 2012

Associate:

Date: 31 August 2012

[2012] FamCA 741

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs

Jurisdiction

Remedies