BARDSLEY & BARDSLEY

[2016] FamCA 408

FAMILY COURT OF AUSTRALIA

BARDSLEY & BARDSLEY [2016] FamCA 408

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife seeks periodic and lump sum spouse maintenance – Where the husband opposes the orders sought by the wife – Whether the wife is unable to support herself adequately for the purposes of section 72 of the Family Law Act 1975 (Cth) – Where the Court finds the wife is unable to support herself – Whether the husband has the capacity to pay spouse maintenance – Where the Court finds the husband has the capacity to pay periodic spouse maintenance but not lump sum spouse maintenance – Orders made for the husband to pay to the wife periodic spouse maintenance.

Family Law Act 1975 (Cth) s 72

APPLICANT: Ms Bardsley

RESPONDENT: Mr Bardsley

FILE NUMBER: SYC 2337 of 2016

DATE DELIVERED: 26 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 18 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fowler

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

FOR THE RESPONDENT: Mr Bardsley in person by telephone link

Orders pending further order:

1. The husband will pay spouse maintenance for the wife in the sum of $500 per week, with the first such payment to be made within seven (7) days of the date of these Orders and with all such payments to be made directly to a bank account nominated in writing by the wife.

2. The husband will pay the following by way of spouse maintenance:

   (a)medical and health insurance which covers the wife and the parties’ child B born … 2014; and

   (b)loan instalments in respect of the St George Bank loan.

3. Otherwise, the wife’s application for interim orders set out in her Initiating Application filed on 18 April 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bardsley & Bardsley 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 SYDNEY

FILE NUMBER: SYC 2337 of 2016

Ms Bardsley

Applicant

And

Mr Bardsley

Respondent

REASONS FOR JUDGMENT

The proceedings

1. By Initiating Application filed on 18 April 2016 the wife, Ms Bardsley, sought the following interim orders:

   Spouse Maintenance

   3.That the Respondent shall pay or cause to be paid by way of spouse maintenance for the Applicant the following:

   3.1The sum of $1,100 per week and that such amounts be paid to the Applicant or as the Applicant may direct from time to time in writing, with the first payment to be made within seven (7) days of the making of these Orders and each week thereafter;

   3.2Motor vehicle loan repayments for the [motor vehicle] operated by the Applicant at the current rate, as and when such payments are due; and

   3.3Private health insurance premiums at the current rate, as and when such payments are due; and

   3.4$3,500 being for rental bond, payable within fourteen (14) days from the date of these orders.

   3.5$10,000 being for furniture and other set up costs the Applicant incurs when moving into rental accommodation, payable within fourteen (14) days from the date of these Orders.

   4.That the Respondent pay to the Applicant’s Solicitors, Watts McCray Lawyers, the sum of $75,000 to assist the Applicant with her legal costs in these proceedings.

   5.That in the alternative to Order 4, that within fourteen (14) days from the date of these Orders and up until Order 4 is carried out:

   5.1That the respondent pay or cause to be paid to the Solicitors for the Applicant an amount equal to the aggregate of any sums paid by or on behalf of the Respondent, up to and including the date of these Orders to his Family Law solicitors, whether to general or trust accounts, counsel, Valuers or other Expert witnesses in relation to these proceedings AND that the Respondent be restrained from paying or causing any further sum to be paid to his Solicitors until the said sum has been paid to the Applicant’s Solicitors AND any monies held by the Respondent’s solicitors shall be forthwith released to the Applicant’s solicitors in satisfaction of this Order.

   5.2That within seven (7) days of payment by or on behalf of the Respondent of any monies in payment of accounts rendered by the Solicitors for the Respondent, that the Respondent pay or cause to be paid the same amount of money to the trust account of the Solicitors for the Applicant.

   6.That the sums paid or caused to be paid by the Respondent to the Solicitors for the Applicant pursuant to Orders 4 and 5 above, be applied by the solicitors for the Applicant in payment of the costs and disbursements incurred or to be incurred by the Applicant in the conduct of these proceedings, including but not limited to the reasonable costs and disbursements rendered by the Solicitors for the Applicant.

   7.That the Applicant have liberty to apply to the Court for the provision of such further sums that may be required to meet the Applicant’s costs and disbursements, including by (sic) not limited to Counsel’s fees, Valuer’s fees and all other fees and charges reasonably incurred by the Applicant in these proceedings.

   Costs

   8.That the Respondent pay the Applicant’s costs of and incidental to this Application.

2. By a Response to an Application in a Case filed on 10 May 2016 the husband, Mr Bardsley, indicated that he opposed all interim orders sought by the wife.  He made no alternative proposals but it did not appear that he intends to discontinue payment of health insurance premiums.

3. At the interim hearing on 18 May 2016 the wife’s legal representative indicated that she did not seek orders in terms of paragraphs 4, 5 and 6 of her application.  The only issues for determination were thus the wife’s entitlement to periodic and/or lump sum spouse maintenance.

Background

1. The husband and the wife, who are aged 31 and 38 respectively, began to cohabit in December 2010 and married in 2011.  They separated on 26 December 2014, at which time they lived in Perth.

2. The parties have one child, B, who was born in 2014 and is currently just under two years of age.  The wife has always been the primary carer of the child.

3. Until June or July 2013 the parties lived in the US.  They moved to Sydney so that the husband could take up a job.  Another reason for this relocation was that the wife’s father and step-mother live in Sydney.

4. In January 2014 the parties moved to Perth so that the husband could take on a job as general manager of C Pty Ltd.  The family lived in rented accommodation in Perth.  Upon the separation the husband left the former matrimonial premises and moved into rented accommodation.  He paid the rent of $725 per week on the accommodation occupied by the wife and the child until the lease ended on 29 January 2015.  The wife and the child then moved to different rented premises, for which the husband paid the rental of $450 per week until 14 February 2016.

5. On 22 February 2016 the wife sold “stocks that I previously held in Facebook” for $12,900.  According to her Financial Statement of 15 April 2016 she has a total of $11,251 in two bank accounts.

6. On 26 March 2016 the wife and the child moved from Perth to Sydney.  At present they live in short-term accommodation which she rents for $490 per week.  The wife now wishes to lease a two-bedroom apartment, for which she estimates the rental will amount to $650-$750 per week.

7. The wife deposed that, for a time after the separation, the husband paid certain expenses which she identified as follows:

   (a)Rent for the property at D Street of $725 per week until 29 January 2015;

   When that lease ended, the child and I moved into another rental property at [E Street, Suburb F], WA.  [Mr Bardsley] paid the rental for this property at $450 per week until 14 February 2016;

   (b)[The child’s] formula/food expenses of approximately $100 per week;

   (c)Car Loan payments for the [motor vehicle] which was purchased by [Mr Bardsley] for me of $225 per week;

   (d)My gym membership with G Gym of $23 per week;

   (e)Medibank Private Insurance payments of $48 per week for the child and I;

   (f)Youi Car Insurance payments for my car of $18 per week;

   (g)Petrol of approximately $50 per week (paid for by [Mr Bardsley’s] employer); and

   (h)My mobile phone bill of approximately $9 per week.

8. In his submissions the husband agreed that he stopped making payments for the benefit of the wife in February 2016.  He gave as his reason that the wife ceased all communication with him and he was very concerned at his lack of contact with the child.  There was a dispute between the parties as to the extent of the child’s time with the husband after the separation, which on either version of events was infrequent and of short duration.  The wife alleged that the husband was disinterested in spending time with the child and he contended that she obstructed their ongoing relationship.

9. The husband and the wife were born in the US.  They came to Australia pursuant to a section 457 visa issued to the husband.  He intends to apply for permanent residence and it may be that the wife will be required to leave Australia at some future time.

10. On 4 March 2016 the Child Support Agency issued an Assessment which requires the husband to pay $750.58 per month.  He made the first such payment on 12 April 2016.  The wife deposed that she intends to seek a review, as the Notice of Assessment recorded the husband’s 2015 taxable income as $79,636.  In his submissions on 18 May 2016 the husband proffered that his current taxable income is $180,000 per annum.

Consideration

1. The first issue to be determined is whether the wife is unable to support herself adequately within the meaning of section 72 of the Family Law Act 1975 (Cth). This section provides as follows:

   SECTION 72 RIGHT OF SPOUSE TO MAINTENANCE

   72(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 wife has care and control of the parties’ daughter the child, who is just under two years of age.  In my view her responsibilities to care for the child necessarily curtail her opportunity to engage in gainful employment.  The parties live on opposite sides of Australia, so practicalities dictate that the husband is unable to care for the child to an extent which would permit the wife to increase her hours of work in any significant way.

3. The husband maintained that it is open to the wife to return to full-time employment because her father and step-mother could care for the child.  That inference is not open to me on the available evidence.  I am unaware of their commitments and what demands are placed on their time.

4. Currently the wife works for twenty hours per week and earns a net income of $450.  She pays a babysitter to care for the child and has put her name on a waiting list for a place in child care.  The wife deposed that child care will cost $155 per day.

5. It seems to me that there is some room for an increase in the wife’s hours of employment.  She deposed to a daily rate of $155 for child care, which must mean that more than three hours would be available for employment on these days.

6. The wife’s uncontradicted evidence is that she does not qualify for any Centrelink benefits and is ineligible for child care rebate.  The reason is that the wife is neither an Australian citizen nor a permanent resident of this country.  In any event Centrelink benefits must be disregarded for present purposes.

7. In all of these circumstances I am satisfied that the wife is unable to support herself adequately for the purposes of section 72. On the other hand, I consider that certain of the expenses set out in Part N of her Financial Statement are excessive, unnecessary or discretionary in nature. I am at a loss to understand why the wife would incur a weekly expense of $30 for “gardening/lawn mowing” when she intends to rent an apartment. I am unaware what asserted expenses are covered by “children’s activities $150” nor “education expenses, including fees and levies $100.” Certain alleged items of expenditure, eg. “holidays $100, “books and magazines $20” and “gifts $30”, are of a discretionary nature.

8. As noted, the husband stated in his submissions that he earns a salary of $180,000 per annum.  There was an issue as to whether the husband’s superannuation contribution of $301 per week is paid by his employer or is deducted from his income.  The husband insisted that his employer does not pay his superannuation in addition to his salary.  A recent pay slip, however, stated “Employee Super: $0.00” (Exhibit 1)

9. The husband’s pay slip dated 11 May 2016 recorded his gross fortnightly income as $6,322, with tax of $2,004.  These figures equate to $3,161 and $1,002 per week, with a gross annual income therefore of $164,372.  If superannuation of $600 per fortnight is in fact paid by the husband’s employer, his gross annual salary package would be $179,972.

10. On the basis of the husband’s statement in his submissions I will assume that the husband’s gross weekly income is $3,461.  He has fixed weekly expenses for rent, life and health insurance, motor vehicle costs and child support.  The health insurance covers the wife and the parties’ daughter.  The husband also pays a loan in relation to the car driven by the wife and he has resorted to credit cards to meet certain expenses.

11. It would thus appear that the husband has the following fixed weekly expenses:

($)
1	Income tax	1,002
2	Rent	490
3	Life insurance	26
4	Medical insurance	57
5	St George Bank	225
6	Child support	173
$1,973

1. Part N of the husband’s Financial Statement contains some items which might reasonably be considered to be discretionary expenditure.  These items include “entertainment/hobbies $80” and “gifts $30”.  Other items appear to be excessive in comparison with those asserted by the wife.  Examples are “food” for which the husband claims $300 for himself alone and the wife the same amount for herself and the child.  Similarly the husband claims $100 for clothing and shoes for himself alone and the wife $150 for herself and the child.

2. For these reasons I conclude that the husband has a capacity to pay periodic spouse maintenance.  Doing the best I can on the available evidence, I assess that it is appropriate that he pays periodic spouse maintenance of $500 per week.  I will order that the husband continue to pay medical insurance, which will include the wife and the child, and St George Bank loan instalments which appear to relate to the car in the possession of the wife.

3. The wife could point to no fund of money in the possession of the husband, from which he could pay lump sum spouse maintenance.  There was no evidence to contradict the assertion in his Financial Statement that he has approximately $719 in bank accounts.  The wife, on the other hand, has some $11,250 in bank accounts.  I will thus dismiss the wife’s application for lump sum spouse maintenance.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 26 May 2016.

Associate: 

Date:  26 May 2016