Bane and Bayley
[2013] FCCA 1581
•16 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANE & BAYLEY | [2013] FCCA 1581 |
| Catchwords: FAMILY LAW – Spousal Maintenance – application by the Wife for interim spousal maintenance – property proceedings between the parties on foot – marriage of short duration – Wife’s capacity to engage in full-time employment in dispute – consideration of relevant sections of the Family Law Act 1975 (Cth) – consideration of relevant case law – interim spousal maintenance ordered in the sum of $250.00 per week. |
| Legislation: Family Law Act 1975 (Cth), ss.72, 75(2) |
| Cases cited: In the Marriage of Ashton (1982) 8 Fam LR 675 |
| Applicant: | MS BANE |
| Respondent: | MR BAYLEY |
| File Number: | MLC 7491 of 2011 |
| Judgment of: | Judge Whelan |
| Hearing date: | 26 August 2013 |
| Date of Last Submission: | 26 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Barbayannis Lawyers |
| Counsel for the Respondent: | Mr Thompson |
| Solicitors for the Respondent: | Saxbys Lawyers |
ORDERS
Until further order, the Respondent pay to the Applicant the sum of $250.00 per week by way of interim spousal maintenance.
IT IS NOTED that publication of this judgment under the pseudonym Bane & Bayley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7491 of 2011
| MS BANE |
Applicant
And
| MR BAYLEY |
Respondent
REASONS FOR JUDGMENT
This is an application for interim spousal maintenance brought by the Applicant Wife Ms BANE (“the Wife”). The Wife and the Respondent Husband, Mr BAYLEY, (“the Husband”) were involved in some type of relationship for about six years, although the marriage itself was of a much shorter duration and there were periods of separation prior to the marriage on (omitted) 2012. The parties finally separated in November 2012.
Since the Wife instituted property and maintenance proceedings, there have been two lump sum payments of $25,000.00 each made to her by the Husband.
The Wife’s Submissions
The Wife submits that there are two considerations for the Court:
·First, whether the Wife has established a need to be maintained; and
·Second, whether the Husband has an ability to pay.[1]
[1] Transcript of Proceedings, 26 August 2013, p.6 at lines 12 and 17-18.
The Wife has rental premises for which she is paying $500.00 per week. She is employed two days per week in two different (omitted) positions and earns a total of $200.00 per week from that employment. The Wife deposes to a weekly expenditure of $850.00. She is seeking interim spousal maintenance in the sum of $1,150.00 per week.
There are no children of the marriage and the Wife has no dependants. The Husband has adult children. One of those children lives with him and earns $1,200.00 per week.
The Husband lives in a property in (omitted) which is valued at
$1.6 million. His income tax return for 2011–2012, which he signed on 31 May 2013, shows a personal income of $236,576.00 per annum,
or $4,549.00 per week.[2] On the basis of his financial statement dated
28 May 2013, the Husband has weekly expenses of $3,077.00
per week, leaving him with a surplus of $1,472.00 per week.[3] There is, therefore, little to argue with respect to capacity to pay.
[2] Exhibit A1, Individual Tax Return 2012 of Mr Bayley signed 31 May 2013.
[3] Financial Statement of Mr Bayley filed 29 May 2013, at p.2.
Included in the Husband’s expenses is an amount of $900.00 which he says he pays to his former Wife, Ms K (“Ms K”), which is money owing to her as a result of Orders made in July 2009 in property proceedings following their separation. The Husband deposes that there is no express agreement between himself and Ms K as to when this money is to be paid.
The Husband deposes to assets of $3 million. The Wife claims this is more like $7 million. There is also a discretionary trust of which the Husband is a beneficiary with two other persons.
The Wife deposes to not being able to work on a full-time basis because she is suffering from stress and is not psychologically fit to engage in full-time employment. The Wife relies on the evidence of her psychologist, Ms D (“Ms D”), who reports that, in her view, it could be one year before the Wife returns to work full-time.[4]
[4] Affidavit of Ms D filed 21 May 2013, Annexure “A” at p.5.
The Wife raised criticisms of the forensic report provided by Forensic Psychologist Mr C (“Mr C”) who was engaged by the Husband to provide the forensic report. The Wife notes that her affidavit of 26 June 2013 was not provided to Mr C, which gives a different picture of the Husband. The Wife submits that, apart from a statement that the Wife “has certainly been on antidepressant medication for an extended time and on her account, has at times been able to hold down full time employment”,[5] there is no indication in the forensic report as to how Mr C concluded that the Wife was currently capable of returning to full-time employment.
[5] Affidavit of Mr C filed 21 August 2013, Annexure “Mr C-3” at p.25.
The Wife also referred to the suggestion raised by the Husband with Mr C that the Wife “was also able to earn money by working as some sort of an (omitted)”[6] and sought to rebut that allegation.
[6] Ibid.
The Wife submitted that, even if she were able to work five days per week, she would earn $500.00 - that is the Wife’s rent.
The Husband’s submissions
The Husband submits that s.72 of the Family Law Act 1975 (Cth)
(“the Act”) provides the legal framework for an application for spousal maintenance. The issue in this case is: does the Wife have serious psychological problems that mean she is unable to work?[7] The Wife blames her problems on her treatment by the Husband and the breakdown of the marriage. There is an acceptance by the Wife that she had a capacity to work full-time prior to the relationship with the Husband.
[7] Transcript of Proceedings, 26 August 2013, p.24 at lines 5-7.
The Husband submits that little weight should be given to the report by Ms D, stating that:
·Ms D is not independent;
·Ms D is an advocate for the Wife;
·The report is not a forensic assessment of the Wife; and
·The report does not set out the information on which Ms D has relied to formulate her conclusions.
Mr C, on the other hand, has seen both parties. He is independent and an expert witness. Mr C’s report has been thoroughly researched, and he has formed opinions after careful consideration that the Wife can work, and she can work full-time. It is strong and compelling evidence.
The Husband further submits that the Wife has received $50,000.00 since 24 April 2013, or $2,941.00 per week for 17 weeks. In her affidavit of 28 February 2013, the Wife refers to an intention to commence a (omitted) business and to using some of the $50,000.00 to pay $4,750.00 for a four week, full-time, (omitted) course.[8] If the Wife could study full-time, why could she not work full-time?
[8] Affidavit of Ms Bane filed 1 March 2013, p.12 at para.69.
The Wife received $73,000.00 as a compensation payout which she says went on household expenses and furniture. The Husband says that $32,000.00 of that amount was discretionary spending on herself. The rest probably went on propping up her business, “(omitted)”, which made losses each year.
The Husband states that the Wife has not produced tax assessment notices or group certificates. The Husband also challenged a number of the expenses claimed by the Wife in calculating her expenses at $850.00 per week. Further, the Wife is paying $500.00 per week for a three-bedroom property with a study, two bathrooms, two car ports and a front and back garden, which exceeds the Wife’s needs.
The Husband submits that the Wife can support herself.
With respect to his income, the Husband says that his stated income of $1,250.00 per week is what he earns as a (omitted). The Husband is also able to draw down on a loan account for funds. His primary income is what he says it is and he has a capacity to top it up. The Husband says that (business omitted) does not currently have the capacity to make payments to the Wife. The Husband borrowed the two lots of $25,000.00 paid to the Wife.
Conclusions
The starting point for consideration of an order for interim spousal maintenance is s.72 of the Act:
Right of spouse to maintenance
(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).
Section 72 of the Act requires a consideration of two factors prior to the granting of an order:
·First, ‘the extent’ to which the respondent is ‘reasonably able’ to maintain the applicant; and
·Second, consideration of whether the applicant ‘is unable to support herself or himself adequately’ with reference to the factors set out in s.72(1)(a) – (c) of the Act as informed by any relevant matters in s.75(2) of the Act.
The following principles guide the application of s.72 of the Act in circumstances where the application is for interim maintenance:
·An application for interim maintenance is the same as an application for permanent maintenance except that the order is made only until further order;[9]
·In spousal maintenance applications, the threshold requirement that the applicant must demonstrate that he or she is ‘unable to support herself or himself adequately’ in s.72 of the Act is to be applied not by reference to any fixed or absolute standard but having regard to any relevant matter referred to in s.75(2) of the Act;[10]
·The test of ability to support oneself is not identical to the test whether one is in need but means whether the applicant is in a position to finance himself or herself from his or her own resources;[11]
·A standard of living that in all the circumstances is reasonable for the party claiming maintenance is not necessarily the same standard as that enjoyed during cohabitation;[12]
·In an application for interim maintenance, the Court does not conduct as exhaustive a hearing as would be the case in determining an order for indefinite maintenance;[13] and
·It is the nature of an interim spousal maintenance order that, as here, it is made after a circumscribed hearing, in reliance upon evidence which is incomplete and/or unable to be fully tested. Whilst different to urgent spousal maintenance pursuant to s.77 of the Act, orders for interim maintenance are as their title implies. The Court hearing and determining financial proceedings between the parties on a final basis, as clearly will occur in this case in the absence of any intervening settlement, has abundant power to accommodate within its final orders, whether by way of settlement of property or spousal maintenance, any anomalies which full agitation of disputed issues of fact may reveal to have resulted from an earlier interim spousal maintenance order.
There is no reason to think, in the circumstances of this case, that any unfairness or hardship visited upon either party by reason of the interim spousal maintenance order could not, or will not, be addressed in the final orders of the Court.[14][9] In the Marriage of Ashton (1982) 8 Fam LR 675 at 675 per Nygh J.
[10] In the Marriage of Mitchell (1995) 120 FLR 292 at 292 per Nicholson CJ, Fogarty and Jordon JJ.
[11] In the Marriage of Eliades (1980) 6 Fam LR 916 at 916 per Nygh J.
[12] In the Marriage of Wilson (1989) 13 Fam LR 205 at 209 per Strauss J.
[13] Ibid, at 205 per Strauss and Nygh JJ.
[14] Drysdale & Drysdale [2011] FamCAFC 85 at para.40.
Taking into account the information contained in the Husband’s affidavit material, his financial statement and his tax return, I am satisfied that the Husband is ‘reasonably able’ to maintain the Wife.
The issue is whether the Wife is able to support herself adequately.
The Wife claims a ‘mental incapacity for appropriate gainful employment’.[15] This is supported by her treating psychologist, Ms D. Ms D assessed the Wife using the Depression, Anxiety, Stress Scale (DASS) in May 2013 and assessed her depression in the severe range, her anxiety in the extremely severe range and her stress to be in the moderate range of severity.[16] Ms D assessed that “it will take at least one year or more before Ms Bane is likely to return to full time employment”.[17]
[15] Family Law Act 1975 (Cth), s.72(1)(b).
[16] Affidavit of Ms D filed 21 May 2013, Annexure “A” at p.4.
[17] Ibid, Annexure “A” at p.5.
Mr C assessed the Wife on the instructions of the Husband’s solicitors on 24 July 2013. Their request to Mr C was as follows:
7. When preparing your report, you are asked to consider the documents and materials provided to you and the background set out above in addition to your examination of the Wife and any testing conducted by you. Can you please address the following in your report:
7.1Whether, in your opinion, the Wife is presently capable of engaging in full-time employment;
7.2 If the answer to 7.1 is no:
(a) when, in your opinion, will the Wife be capable of returning to full-time employment;
(b) whether the Wife is presently capable of part-time employment and, if so, the extent of part-time employment she is capable of maintaining;
7.3Whether, in your opinion, the Wife is suffering from any ongoing psychological issues which would require treatment [in order for her to recommence full-time employment];
7.4 If the answer to 7.3 is yes:
(a) whether, in your opinion, the psychological issues suffered by the Wife have been caused by the Husband or the breakdown of their marriage;
(b) if the answer to (a) is yes, what was the cause(s) or contributing factor(s);
(c) in your opinion, what treatment would the Wife need to undertake in order for her psychological issues to be addressed sufficiently for her to return to employment;
7.5Please comment on the report prepared by Ms D and the conclusions she has reached therein.[18]
[18] Affidavit of Mr C filed 21 August 2013, Annexure “Mr C-2”, p.8 at para.7.
Given the nature of those questions, it is not clear why Mr C was subsequently asked to assess the Husband. It is clear however, that to some extent, the interview with the Husband influenced his assessment of the Wife.
Mr C was of the opinion that the Wife suffers from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.[19] The history the Wife provided could also be consistent with her suffering from a Major Depressive Disorder.
[19] Ibid, Annexure “Mr C-3” at p.32.
Mr C goes on to say about the Wife:
She has certainly been on antidepressant medication for an extended time and on her account, has at times been able to hold down full time employment (emphasis added).[20]
Based upon my assessment of Ms Bane, it is my opinion she is currently capable of returning to full time employment. At worst, I would expect she should be capable of working at least four days per week. If she were receiving appropriate mental health treatment, it is my opinion she should be able to work full time (emphasis added).[21]
[20] Ibid, Annexure “Mr C-3” at p.25.
[21] Affidavit of Mr C filed 21 August 2013, Annexure “Mr C-3” at p.25.
It is not clear what Mr C considered to be “appropriate mental health treatment” for the Wife.[22] It appears that the Wife has been on anti-depressant medication for a long time and is seeing Ms D for counselling.
[22] Ibid.
The Wife deposes that she is currently able to earn $200.00 per week from two jobs which pay her $100.00 per day. Even if the Wife was able to work four or five days per week in that employment, her earnings would be only $400.00 or $500.00 per week. This is significantly less than the minimum weekly wage for a 38-hour week which is $622.20. The Wife has received $50,000.00 in two payments from the Husband, most of which seems to have been eaten up by legal costs.
The relevant matters to consider under s.75(2) of the Act appear to me to be as follows:
·The Wife is 44 years of age. She suffers from a depressive condition which may have been exacerbated by the breakdown of the marriage. The Husband is 52 years of age and appears to be in good health;
·The Husband works as a (omitted). He has assets of at least $3 million and lives in a house valued at $1.6 million. The Wife works as a (omitted) and lives in rental accommodation. She has minimal assets;
·There are no children of the marriage;
·The Husband provides some financial support to his adult children;
·The Wife is entitled to a reasonable standard of living;
·The marriage was not of a long duration; and
·During the marriage, the Wife ran a loss-making business.
As the Full Court of the Family Court noted in Drysdale & Drysdale [2011] FamCAFC 85, an order for interim spousal maintenance is made at a time when the Court has not been able to full examine the financial position of the parties: “The evidence need not be so extensive and the findings not so precise”.[23] The Court has the capacity to revisit the issue in making final orders. In a case such as this one, I expect that final orders should provide for a severance of all financial relations between the parties.
[23] [2011] FamCAFC 85, p.8 at para.33.
I am satisfied that the Wife is capable of working more than two days per week, and at least four days per week. On the basis of her current capacity to earn however, an amount of $400.00 per week could not be said to be enough to support the Wife adequately, even if she were to find more modest accommodation than she has currently, which I agree, appears to be greater than her needs, and if she were able to reduce her discretionary spending.
Taking into account the Wife’s capacity to earn, the Husband’s reasonable ability to maintain her and the fact that in order to maintain a reasonable standard of living, the Wife needs at least to be able to access an income equivalent to the minimum wage, I am prepared to order that the Husband pay the Wife, until the property matters are either settled by agreement or determined by this Court, an amount of $250.00 per week.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Date: 16 October 2013
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Family Law
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Civil Procedure
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