Bayley and Bayley

[2017] FCCA 757

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYLEY & BAYLEY [2017] FCCA 757

Catchwords:
FAMILY LAW – Interim – spousal maintenance.

Legislation:

Family Law Act 1975

Applicant: MS BAYLEY

Respondent: MR BAYLEY

File Number: SYC 4565 of 2016

Judgment of: Judge Henderson

Hearing date: 5 April 2017

Date of Last Submission: 5 April 2017

Delivered at: Sydney

Delivered on: 6 April 2017

REPRESENTATION

Counsel for the Applicant: Mr Longworth

Solicitors for the Applicant: Somerville Legal

Counsel for the Respondent: Mr Cairns

Solicitors for the Respondent: Turnbull Law Pty Ltd

ORDERS

1. The husband is to pay to the wife the sum of $300.00 per week by way of spousal maintenance directly into an account nominated by the wife.  The first payment is to commence on Friday 7 April 2017 and is to be made each Friday thereafter, or on a day as agreed between the parties.

IT IS NOTED that publication of this judgment under the pseudonym Bayley & Bayley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4565 of 2016

MS BAYLEY

Applicant

And

MR BAYLEY

Respondent

REASONS FOR JUDGMENT

1. This is an application by a wife for spouse maintenance in the sum of $1347 a week. Mr Longworth of counsel acted for the wife and Mr Cairns for the husband.

2. The material filed was as follows:

   a)For the wife:

   i)Her affidavit of 31 March 2017

   ii)Financial statement of 21 February 2017;

   iii)Case outline prepared by Mr Longworth; and

   iv)Exhibit 1 was an aide-mémoire summary of deposits into the husband’s bank accounts as supplied by him and marked “Wages”.

   b)For the husband:

   i)His affidavit of 4 April 2017;

   ii)Financial statement of 23 March 2017; and

   iii)I was also referred to the husband’s prior two financial statements of 8 and 20 November 2016.

3. The husband resists the application on two bases. First, he says the wife does not fulfil the threshold test as a spouse in need of maintenance, as she has money in the bank, and secondly, he has no capacity to pay.

4. The parties have finalised interim parenting issues and the matter has been placed into a call over for a final hearing on both parenting and property.

5. Going to the threshold issue first. The matter was initially before me on 22 November 2016, where interim parenting orders were made, an order for the sale of the former matrimonial home, discharge of some $130,000 in credit card debts in the husband’s name, payment of school fees for their eldest child, discharge of the mortgage, rates, taxes and the usual adjustments on sale, some $130,000 to be paid to the wife, by way of an interim property order, and the remainder of the moneys from the sale to be placed in a controlled moneys account in both parties’ name.

6. Those orders have been complied with and $438,039 was the net proceeds of sale after discharge of the mortgage, sales costs etc. and credit cards debts. The wife received $10,000 from that sale, having received $20,000 by way of a release of the deposit on the sale of the property earlier in time. Some $302,000 or thereabouts is now in the controlled moneys account. It is the balance of the $130,000 the wife received by way of an interim property order that Mr Cairns says is available to her for her support.

7. That argument is fallacious. The wife has care of two children, X, nine, and Y, five and has been their primary carer and effectively the stay-at-home mum and she has carried out the bulk of parenting and home-making duties and has not worked for some time. The husband financially supported his family.

8. The law is not that a spouse must use capital to support themselves if the other spouse has a capacity to support them and they are in need. The wife has rehoused herself and re-established a home for she and the children, and that appears to be progressing well.

9. The wife has paid legal fees, and has supported her and the children without any assistance from the husband since those moneys were paid to her. The husband paid some money in March 2017 by way of child support, and his obligation for child support is less than some $50 a week– a very small sum indeed. It is clear on the evidence and on an interim basis, the wife fulfils the threshold test of a spouse in need of maintenance by virtue of the length of the marriage and her role in that marriage, which was primary parent and homemaker.

10. The question really is has the husband any capacity to pay towards his wife’s support.

11. Her asserted needs of $1300-odd dollars are not extravagant and not unsupported. Her Centrelink income must be disregarded under the Act[1], and child support is just that: support for the children, not maintenance for a spouse. The wife must pay $530 a week in rent, car insurances, food for herself, electricity, telephone, gas, clothing for herself, preschool fees for the children, clothing for the children and other such necessities for them as part of her spouse maintenance claim, and her claim is not for an extravagant amount of money.

    [1] Family Law Act 1975.

12. It was clear to me in November 2016 and is still clear that the parties lived well beyond their means during their marriage. They sent their child to a private school, which is now no longer feasible, and X will be enrolled in a local private school commencing the term 2 in 2017. School fees for the child were in substantial arrears when the matter came before me in November in excess of $20,000. The husband had credit card debts approaching $130,000. He has asserted loans of $165,000 to his family and tax debts of $55,000.

13. The parties were financially haemorrhaging, having regard to the husband’s financial statements as filed in November 2016. However, since that time all the credit card debt has gone, reducing the husband’s weekly payments he said he was then making in November 2016 by some $1200 per week. The mortgage is gone, reducing the payments he said he was said he was then making of $692 per week. There are no more private school fees. There may be some in arrears, but there will be none in the future.

14. Thus, it is clear that the husband’s income has now increased by at least $2000 per week, perhaps more, as expenses he was claiming in November 2016 are now no longer in existence.

15. Going to his various financial statements. His financial statement of 20 November 2016 says his expenses were $3299 and his income was $1232. Therefore, on the husband’s own disclosed income and the expenses he now no longer has to pay, he would be able to make ends meet on what he says were his expenses at that time.

16. The real question is what is the husband’s income? The Court and the wife are clueless. The husband’s affidavit of April 2017 is unintelligible in his explanation of his income or in being able to ascertain what his income is. He has provided no tax returns, profit and loss for his two businesses or himself to support his assertions as to his current income. His low child support may indicate a low income; however, he is self-employed, and without supporting documentation, he asks I accept at face value what he says is now his income. That causes me some difficulty.

17. Secondly, the husband’s latest financial statement says his income has reduced from $1232 a week in 2016 to $750, and I note his expenditure has decreased to $908. I do not accept the husband’s income has reduced, and I note his primary income – or his primary business as a (occupation omitted) and the Sydney property market is booming at present. Without supporting evidence, I do not accept what he says in his current material is his reduced income. The attachment by him of many bank statements of some of his bank accounts to his affidavit does not assist the Court.

18. It is not the Court’s task to work out what his income is; that is done by the husband presenting the Court with intelligible and appropriate evidence, and he has failed to do this.

19. On the other hand I do not accept the submission of the wife supported by annexure 1, that the raw figures noted as wages in the various bank statements are a reflection of his income. They may be a reflection of turnover or income. I do not know, and it would be dangerous for me use those raw figures and conclude that that is what his income is.

20. Further, to find today that his income is some thousands a week, as the raw figures show is inconsistent with how the parties lived their life when we the husband had credit cards debt approaching $130,000 and school fees that were not paid.

21. The figures produced to me in the aide memoire of incomes of $3000 a week and the like are inconsistent with that prior debt level. However, the husband has failed at every level to assist me to understand his real income, and his complaint that all his financial documents were on a hard drive at the matrimonial home and therefore he could not produce his financials and the like does not sway me at all because these parties have been separated now for 12 months since April 2016. The husband has been trading in his two businesses for 12 months, and he has not provided those figures in any intelligible form at all.

22. It does not assist the husband to say he could not provide these figures to me because the wife had them. He could have at least done the last 12 months, and he has not.

23. I accept his expenses have decreased to $908. I do not accept his income is any less than the $1232, it was per week in November 2016, and it may well be more, as he must claim expenses such as telephone, car, lease, petrol and the like. He says he does not but who would know?

24. The difference between $908 and $1232 is $240. I find the husband has a capacity to pay the wife $300 per week by way of spouse maintenance and I will so order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 18 April 2017