Bazzani and Bazzani and Ors

[2017] FamCA 558

FAMILY COURT OF AUSTRALIA

BAZZANI & BAZZANI AND ORS [2017] FamCA 558

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the husband seeks to reduce the amount of his obligation to maintain the wife – Whether the husband is reasonably able to do so – Where it is agreed that the wife has a need for spousal maintenance – Consideration of the wife’s income – Where Court held husband has capacity to maintain the wife – Where an order is made to increase the total sum of interim spousal maintenance – Application refused.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 72, 74, 75, 77

Edgar & Strofield (2016) FLC 93-711
Hall & Hall (2016) 332 ALR 1

APPLICANT: Mr A Bazzani

RESPONDENT:

SECOND AND OTHER RESPONDENTS:

Ms B Bazzani

Mr C Bazzani

Ms D Bazzani

E Pty Ltd
F Pty Ltd

G Pty Ltd
H Pty Ltd
J Pty Ltd
K Pty Ltd
L Pty Ltd

M Pty Ltd

FILE NUMBER: ADC 2860 of 2015

DATE DELIVERED: 4 August 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 26 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Husband in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Wife in person

SOLICITOR FOR THE RESPONDENT:

UPON NOTING that the wife does not intend to make an application for assessment of child support for X Bazzani

Orders

1. That all previous orders for interim spousal maintenance be dismissed.

2. That as and from 20 April 2017 the husband pay to the wife spousal maintenance in the sum of SEVEN HUNDRED AND EIGHTY FOUR DOLLARS ($784) per week with such sum to be transferred into an account nominated by the wife.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bazzani & Bazzani and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2860  of 2015

Mr A Bazzani

Applicant

And

Ms B Bazzani

Respondent

And

Mr C Bazzani and Ms D Bazzani and E Pty Ltd  and F Pty Ltd  and G Pty Ltd  and H Pty Ltd  and J Pty Ltd  and K Pty Ltd  and L Pty Ltd  and M Pty Ltd 
Second and Other Respondents

REASONS FOR JUDGMENT

INTRODUCTION

1. By Application in a Case filed 20 April 2017, Mr A Bazzani (“the husband”) seeks to vary an existing order for spousal maintenance in favour of Ms B Bazzani (“the wife”).

2. By consent order made on 17 December 2015, the husband agreed to pay spousal maintenance to the wife in the following terms:-

   [3]That by way of interim spousal maintenance the Husband do cause to be paid to the Wife the sum of $1,200 per week in addition to such sums as the Husband currently pays to the Wife including but not limited to rates, taxes and utilities in relation to the former matrimonial home.

3. By order made 21 December 2016, paragraph 3 of the order of 17 December 2015 was varied by substituting the figure of $700 per week for the figure of $1,200 per week.  There was no amendment to the husband’s obligation to pay the wife’s household outgoings and expenses.

4. The husband seeks to further vary the current order by substituting an order in lieu as follows:-

   The husband to pay to the wife the sum of $400 per week by way of interim spousal maintenance inclusive of household and motor vehicle expenses.

5. By Application in a Case filed 16 June 2017, the wife opposes the orders to vary the spousal maintenance order as sought by the husband and she seeks orders by way of enforcement which as at the date of the application are asserted to be in arrears in the sum of $17,822.51.  By Response filed 23 June 2017 she further seeks that the husband resume paying her $700 per week by way of spousal maintenance.

DOCUMENTS RELIED ON

1. The husband relies upon his Application in a Case, Financial Statement and Affidavit in support filed 20 April 2017.

2. The wife relies upon her Application in a Case and Affidavit filed 16 June 2017, Response and Affidavit filed 23 June 2017 and her Financial Statement and Affidavit filed 20 July 2017.

3. On 4 July 2017 the proceedings were adjourned to the date of hearing to enable the wife to file a Financial Statement and Affidavit setting out her current employment circumstances and other relevant financial information.

INTERIM SPOUSAL MAINTENANCE

1. In the recent case of Hall & Hall (2016) 332 ALR 1, the High Court set out the appropriate approach in considering an application for interim spousal maintenance as follows:-

   [3]…the gateway to the operation of Part VIII in relation to spousal maintenance is in s 72(1).  That sub-section provides that “[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…having regard to any relevant matter referred to in [s] 75(2)”.

   [4]The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystalized by the making of an order under s 74(1).  That subjection provides that, “[i]n 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”.

   [5]A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters.  Those matters are presented as a comprehensive checklist.  They include what s 75(2)(b) refers to as “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”.  They also include, by virtue of s 75(2)(o), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.

   …

   [8]Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirements in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).

2. As noted, in Hall & Hall (supra), the High Court confirmed that an applicant seeking orders for spousal maintenance carries the evidentiary burden as set out in s 140 of the Evidence Act 1995 (Cth). This can be particularly challenging in the context of an application for interim spousal maintenance. As the Full Court recently said in Edgar & Strofield (2016) FLC 93-711 at paragraph [15]:-

   …The limits to an interim hearing are well known.  Disputed issues of fact cannot be resolved at an interim hearing.

3. In her Affidavit of 20 July 2017, the wife confirmed that she is engaged in casual employment which commenced on 24 October 2016.  Initially she worked 21 hours per seven day week but this has now increased to 28 hours per week.  Her average gross income is $720.  She considers that she would have the capacity to work more hours but that ability is hindered by her parenting obligations in respect of her 12 year old son who resides with her and spends time with the husband each alternate weekend, Wednesday afternoons and extended periods during the school holidays.

4. The wife continues to reside at the former matrimonial home.  Presently, the parties’ two adult children also reside with her.

5. The husband sets out his personal circumstances in his Affidavit of 20 April 2017.  He is employed with his father’s company G Pty Ltd.  He commenced in about January 2017 and his income is $2,307 per week together with employment related benefits being the personal use of a motor vehicle and related expenses of about $100 per week.

6. The husband pays spousal maintenance as ordered on 22 December 2016 together with household expenses between 3 January and 21 March 2017.  He estimates that the expenses of the wife’s household together with the motor vehicle expenses approximate $900 per week.  The obligation to pay the wife’s motor vehicle expenses does not arise by way of spousal maintenance but rather, as part of the interim order for property settlement.

7. The husband has prepaid the child’s private school fees until the end of 2017, but he now says that he is not able to pay the spousal maintenance payments, household and motor vehicle expenses from his earnings.

8. Whilst the husband has not paid the full amount as represented by the periodic sum and the household expenses, the wife concedes that he has paid on average $307 per week by way of lump sum and $204 per week by way of contribution to household expenses.  On average the husband has therefore paid a total of $511 per week.

WIFE’S CIRCUMSTANCES

1. The wife is in casual employment and has the primary care of the only child of the parties under the age of 18 years.

2. The wife concedes that by agreement the husband is not required to make an application for child support.  At this stage it is not her intention to seek a child support assessment.

3. The husband concedes that it is therefore appropriate for the wife’s financial circumstances to bring to account the costs of the child.

4. It is also conceded by the husband that he has a liability to maintain the wife to the extent that she is not reasonably able to do so.  There is no challenge by the husband to the hours that the wife works or to her assertion that at this stage her parenting obligations limit the extent to which she is able to seek employment beyond her current 28 hours per week.

5. Accordingly, the proceedings are of limited scope and are confined to determining the reasonable financial needs of the wife and then to focus on the ability of the husband to meet that sum.

6. The wife’s financial circumstances are set out with clarity in her Financial Statement filed 20 July 2017.  Her total salary is $720 per week.  The total of the Part G personal expenditure is $400 per week.

7. By reference to Part N expenses, the wife seeks $874 for herself and $290 for the child.  Whilst the document includes expenses for the adult children, for reasons that have been given I do not bring those expenses to account.  Accordingly, the total expenses for the wife are as follows:-

Fixed expenditure	$400
Part N Expenses (wife)	$874
Part N Expenses (child)	$290
Total	$1,564
Less wife’s income	-$720
Balance	$844

1. Whilst there was no argument in respect of the accuracy of the Part N expenses, I consider it reasonable to exercise my discretion and exclude $60 that relates to other necessary commitments being fitness, pets and donations.  Accordingly, the amount attributable to the reasonable needs of the wife taking into account her income is $784 per week.

HUSBAND’S POSITION

1. The husband relies upon his Financial Statement filed 20 April 2017.  He is employed by G Pty Ltd.

2. His income is $2,307 per week together with a further $100 by way of employment benefits, primarily in respect of the provision of a motor vehicle for his personal use.

3. The husband has not claimed motor vehicle expenses in Part N of his financial statement and as such I do not bring the $100 per week into account.

4. The husband’s gross salary is $2,307 per week.

5. The only personal expenditure item claimed in Part G of the financial statement is income tax in the sum of $663.  The husband also is obliged to pay the wife’s motor vehicle expenses pursuant to the orders of 21 December 2016.

6. Whilst the husband claims $1,110 by way of Part N expenses, this includes $570 attributable to expenses in respect of the child and on occasion the adult children.

7. I am not helped by any evidence which identifies the husband’s expenses in relation to the child, but I think it is reasonable that some expenses should be brought to account.  Considering a component for food, electricity and other activities, I propose to attribute $100 by way of reasonable expenditure for the child.

8. Accordingly, the expenses of the husband are as follows:-

Part G personal expenditure	$663
Part N weekly expenses (child)	$100
Part N weekly expenses (husband)	$539
Total	$1,302

1. Given that the husband’s gross salary is $2,307, the husband has available income of $1,005 to meet the interim spousal maintenance claim of the wife of $784.

2. At this stage the financial circumstances of the parties remain complex by reason of their inability to dispose of property and a potential loss that may arise in respect of various development projects.

CONCLUSION

1. I propose to order that as and from 20 April 2017 being the date upon which the husband filed his Application in a Case, he is to pay spousal maintenance in the sum of $784 per week inclusive of household expenses and outgoings.

2. Whilst the wife also seeks arrears of $17,822.51, I decline to make orders by way of enforcement at this stage of the proceedings.  Given the orders that I have made, it is a matter for the wife whether she intends to re-calculate the purported arrears of spousal maintenance taking into account the order that I have made back dated to 20 April 2017 and the concession by the wife that the husband has paid on average $511 per week over the relevant period.

3. I make orders as appear at the commencement of these reasons.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 4 August 2017.

Associate: 

Date:  4 August 2017