BAIRD & BAIRD

[2015] FamCA 322

FAMILY COURT OF AUSTRALIA

BAIRD & BAIRD [2015] FamCA 322

FAMILY LAW – PROPERTY – Interlocutory Application – Where the wife sought interim spousal maintenance and/or an interim partial property settlement – where there is no proper basis for making an order for periodic spousal maintenance – where the wife’s application for periodic spousal maintenance be dismissed – where given the parties’ asset pool and the liquid assets available, a partial property payment to the wife can be made – an order is made accordingly  

Family Law Act (1975) Cth, ss 79, 80

APPLICANT: Ms Baird

RESPONDENT: Mr Baird

FILE NUMBER: NCC 3261 of 2014

DATE DELIVERED: 1 April 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 30 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: LBK Solicitors

COUNSEL FOR THE RESPONDENT: Ms Eldershaw

SOLICITOR FOR THE RESPONDENT: WMD Law

Orders

1. That the husband pay to the wife within 14 days the sum of $150,000.00 by way of partial property.

2. The Application for periodic spouse maintenance be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baird & Baird 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 NEWCASTLE

FILE NUMBER: NCC3261 of 2014

Ms Baird

Applicant

And

Mr Baird

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. By her Amended Application filed 17 March 2015, the wife sought interim orders as follows: spousal maintenance in the sum of $1,200 per week and/or, in the alternative, that the husband pay to the wife $200,000 within 14 days and costs. 

2. This application was modified on the day to:

   a)spousal maintenance in the sum of $594 per week; and

   b)that the husband pay to the wife $150,000 within 14 days. 

3. This was clarified and confirmed by Counsel for the wife as a partial property payment and not lump sum spousal maintenance. 

4. By his Amended Response filed 16 March 2015, the husband had sought dismissal of the wife’s application for periodic spousal maintenance. 

5. The Amended Response was in response to the Initiating Application of the wife filed on 12 December 2014, where the only order sought had been periodic spousal maintenance of $1,200 per week.  This explains why Counsel for the husband was primarily focused on spousal maintenance; it had been the only pending application when the matter was listed in the duty list.

6. The second component of partial property payment was added by the Amended Application of the wife filed after the filing of the husband’s Amended Response. 

7. On the date of hearing in the duty list on 30 March 2015, the husband understood that the wife was seeking relief on both fronts, periodic maintenance and partial property.  However, it had not been entirely clear to me whether the second payment sought was lump sum spousal maintenance or partial property settlement. 

8. In any event, no objection was raised, and perhaps pragmatically, the decision was taken to proceed on that basis, probably to avoid further costs of another application. 

Short History Of Relevant Events

1. The parties met and began living together in 1994 and married in 1996. 

2. They are now 45 and 51 years of age respectively, and apparently in reasonable health. 

3. Their two children were born in 1997 and 2000 and are 17 and 15 years of age. 

4. The parties separated in October 2011, so there has been three and a half years of separation.  The wife, with the children, moved from the family home property, Suburb B, to another property owned by the parties, C. 

5. Their older child is now at boarding school and divides his time between his own activities and his parents by arrangement. The younger child has recently moved to live with the father. That change has been very recent and since the wife’s initial application was made.

6. C has been listed for sale but has not yet been sold. The parties agree it should be sold, however they disagree over a recent offer of $1.8 million.   The husband says that offer was made and the wife refused it.  The wife does not concede those events. 

7. There is a net asset pool of approximately between $2.5 and $3 million, including superannuation.  That may be a conservative estimate. 

Spousal Maintenance

1. The elements of spousal maintenance are the needs of the applicant and the capacity of the respondent to pay. 

2. Excluding Centrelink payments, the wife has a disclosed income of $412 per week from rent and a very small component of interest.[1] She worked throughout the marriage, both on the property and as a teacher and a technical writer.  The latter occupations were not particularly referred to in her affidavit. 

   [1] Exhibit 1 (page 6)

3. I accept the submission that, to the extent that the position in the affidavit appeared to be that the wife had been largely out of the paid workforce, the material produced in response to subpoena suggests otherwise. 

4. She says she no longer expects to receive income from writing for a rural newspaper.  However, she has been working in that way and she may both continue to work there and may also receive monies outstanding for past work done. 

5. The wife also said that she had put together savings, which had become exhausted. The evidence is that the savings of about $20,000 had been used to buy a second car.

6. All of the outgoings on C, including substantial mortgage payments, are met by the husband or his corporate entity.  In effect, the parties are both paying for those outgoings, but there is no direct cash cost to the wife at this time.   The wife also has the use of a 4WD which is owned and paid for by that corporate entity. 

7. The wife’s disclosed expenses included two amounts which are hard to understand. One is a $750 per week MasterCard debt with no particular reference to the asset which it represents, and motor vehicles of $360 per week for the second car. 

8. It is somewhat difficult to see how those expenses are justified, but taking into account the minimum payment for the credit card, whatever that refers to, and some slightly more modest expenses for the second car, the wife’s expenses appear to be approximately $600 a week, which might call for a modest additional payment of around $200 per week.  However, the wife has the capacity to earn that amount. 

9. The position of the husband is that he has recently been made redundant from his paid employment. He received about $400,000 gross; $362,000 net. 

10. The husband in his material said that that money would be used to pay for six to 12 months of outgoings.  It is difficult to see on the material that it would, in fact, be expended in as short a period as six months. 

11. The husband also says that the parties’ daughter, their youngest child, needs some settling in, there having been a change of residence.  As stated, the husband’s corporate entity covers the expenses for both properties, Suburb B and C, and the vehicles used by both parties owned by that entity.  The husband now has the cost of the parties’ daughter living with him.

12. In those circumstances, it seems to me that firstly, the wife has not established a proper basis for a periodic spousal maintenance order at this time, secondly, the circumstances of the husband have changed sufficiently, particularly in view of his becoming redundant and taking on the day to day care of one of the parties’ children, and thirdly, that given a partial property payment will be made, it is not proper to make an order for spouse maintenance.

13. Turning to partial property, the Court has the power to make such an order pursuant to the general powers in s 80 and the powers in s 79 of the Family Law Act 1975 (Cth).

14. The final proposals of these parties are said to be equal division by the husband and a division of about 65 per cent of overall net assets on the wife’s case to her and 35 per cent to the husband.

Conclusion

1. This has been a long marriage, and there are two children aged in their mid to late teens.  It is clear that the parties both worked to capacity and that the wife had the greater share of the care of the children.

2. The final applications are such, given the asset pool, that a partial property payment being made to the wife can be done.

3. The wife’s affidavit, which was filed in support of the original application for spousal maintenance only, does not set out the purposes for which partial property settlement is now sought.  However, the wife does not have to establish any exceptional reason, or even a very clearly defined purpose.

4. No doubt a payment for legal fees being incurred, and also moving and setup costs in the event that C is sold as the parties hope, make it reasonable for the wife to have as a contingency fund, a payment now. 

5. That payment at $150,000 is readily payable from liquid assets available to the husband now. 

6. His stated wish to achieve ultimate adjustment of interests in property in specie, even if it was ultimately determined that way, is not defeated by such an allocation of the joint assets of the party, and I make that Order accordingly.

I certify that the preceding thirty five paragraphs (35) are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Cleary delivered on

1 April 2015.

Associate: 

Date:  4 May 2015