BINGHAM & BINGHAM

[2017] FCCA 2998

FEDERAL CIRCUIT COURT OF AUSTRALIA

BINGHAM & BINGHAM [2017] FCCA 2998

Catchwords:
FAMILY LAW – Where wife seeks interim spouse maintenance – periodic and lump sum – orders made – children’s expenses not considered in spouse maintenance claim.

Legislation:

Family Law Act 1975, ss.72, 74, 75

Bevan & Bevan (1995) FLC 92-600
Kajewski & Kajewski(1978) FLC 90-472
Mitchell & Mitchell (1995) FLC 92-601
Nutting & Nutting (1978) FLC 90-410
Stein & Stein(2000) FLC 93-004

Applicant: MS BINGHAM

Respondent: MR BINGHAM

File Number: SYC 1525 of 2017

Judgment of: Judge Sexton

Hearing date: 11 October 2017

Date of Last Submission: 11 October 2017

Delivered at: Sydney

Delivered on: 5 December 2017

REPRESENTATION

Counsel for the Applicant: Ms Cantrall

Solicitors for the Applicant: Pigdon Norgate Family Lawyers

Counsel for the Respondent: Mr Guterres

Solicitors for the Respondent: Kd Holmes Solicitors

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Husband pay to the Wife’s nominated account, by way of interim spouse maintenance, the sum of $400 per week, first payment to be made no later than 7 days after the date of this Order, and weekly thereafter unless alternate payment arrangements are agreed.

2. Within 7 days, the Wife’s solicitors provide the Husband with details of the Wife’s nominated account.

3. Within 7 days of providing an invoice to the Husband’s solicitors for the following repairs on the Property A property, the parties do all things necessary to cause funds to be released from the controlled monies account to pay each invoice, limited to the amounts in brackets after each item:

   (a)Fence repairs ($3,000);   

   (b)Wood rot repairs in the deck and stairs ($10,000);

   (c)Leadlight windows and window frames repairs where rotted ($6,000).    

   (d)Shower replacement (5,000).

   (e)Gardening services ($1,457.50). 

4. The Wife’s application for costs of these proceedings be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1525 of 2017

MS BINGHAM

Applicant

And

MR BINGHAM

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Wife seeks interim financial relief from the Husband in the form of interim spouse maintenance and an interim distribution from the parties’ controlled monies account, being the net sale proceeds of the parties’ property in (country omitted). 

2. When the matter was before me on 11 October 2017, the Court made orders for the substantive property proceedings to be adjourned to 27 February 2018 for mention before Judge Kemp.  A number of orders were made by consent, including orders for further disclosure, a restraint on the parties from diminishing the value of their current assets, and for the valuation of the Husband's (country omitted) Retirement benefits. The court was asked to determine the issues relating to interim financial relief.

3. Each party was represented by counsel.

Orders sought

1. In her Minute of Order provided at the commencement of the interim hearing, the Wife seeks $1,100 a week in interim spouse maintenance, payable by the Husband, or, if the Court finds the Husband lacks the capacity to pay, payable each week from the parties’ controlled monies account. It is not clear to me from the Wife’s Financial Statement how the sum of $1,100 was calculated, as on the figures she provides, the Wife’s expenses total $858 a week.  It appears that the Wife seeks interim spouse maintenance to cover the shortfall in the expenses she claims are needed for the parties’ daughter X, as well as for herself.  I do not include X’s expenses in my calculation of the Wife’s needs.  This difficulty in the Wife’s case was not raised by either counsel at the hearing.  In Kajewski and Kajewski[1], a decision since followed by the Full Court[2], Lindenmayer J dealt with an appeal from a magistrate's order for the payment of spousal maintenance. One of the matters argued was whether or not it was appropriate for the magistrate to have taken into account expenses of the wife which related to the children. His Honour said at 77,426-7:-

   "...it is quite clear that the figures taken by the Magistrate as the wife's expenses are the expenses which relate not only to herself but also to the two children who reside with her. …In my opinion, the Magistrate was in error in so approaching his task in the circumstances of this case. There were no proceedings before him in relation to the maintenance of either of the children, and his only legitimate concern therefore was with the needs of the wife in respect of her own maintenance. Such a strict approach may be thought to involve some hardship upon the wife, but any other approach would involve an injustice to the husband. The wife chose to seek an increase in her own maintenance only, and not that of the child M. If, as a result of the strict approach which I propose, the wife were to feel herself disadvantaged, the remedy would lie in her own hands in the form of an application for increased maintenance for M..."

   [1] Kajewski and Kajewski (1978) FLC 90-472

   [2] Stein & Stein(2000) FLC 93-004

2. The Wife also seeks a lump sum distribution from the parties’ controlled monies account in the sum of $26,000 to meet the cost of repairs and improvements to the parties’ Property A property.  The Wife’s counsel submits that the Wife’s primary position is that such a payment be characterised as spousal maintenance, but otherwise its characterisation be left to the Trial Judge.

3. The Husband seeks an order for the sale of the Property A property, an interim distribution of the sale proceeds in an amount of 25% to each party with 50% to be held in the controlled monies account, and otherwise the dismissal of the Wife’s application for interim financial relief.

4. On a final basis, the Wife seeks to retain the Property A property and the balance of any funds remaining in the controlled monies account. The Husband seeks an order for the sale of the Property A property and for an approximately even division of the parties’ total net assets.

Background facts

1. The parties commenced cohabitation in (omitted) 1989, separated for approximately a year in 1992, married on (omitted) 1994 and separated between August and November 2014 (The Husband says August, the Wife says November). They were divorced on 19 August 2017.  The parties have 3 children. Mr B is 21 years of age, Mr P 20 years and X 16 years.  

2. The Wife is 49 years of age and self employed as a (occupation omitted) in her own business which includes a contract with (employer omitted). She also has casual employment with (employer omitted), but has no work as yet.  She is living in the parties' jointly owned home at Property A with the three children, the pet dog and 3 cats. The Wife has not repartnered.

3. The Husband, aged 57 years, is an (occupation omitted) at (employer omitted), employed on a contract basis. He is living at (omitted) with his new partner. The Husband has another adult child from a previous marriage, now in his thirties.

Wife’s case

1. The Wife relies on her Initiating Application filed on 1 September 2017, her Affidavit and Financial Statement, both sworn on 31 August 2017, as well as written and oral submissions of counsel.

2. The Wife says that with the agreement of the Husband, she managed the household and cared for the parties' children while the Husband pursued his career, which involved overseas postings. The Wife contends that the Husband largely managed the family’s financial affairs during the marriage. Until December 2016, the Husband paid the mortgage and expenses on the parties' Property A home and deposited approximately $2,000 a month into the Wife's account for hers and the children's support.  In December 2016, the Husband stopped contributing funds to the Wife’s account, and paid child support for X only.

3. The parties discharged the mortgage on Property A in April 2017, after selling their (country omitted) property ((country omitted)).  The Wife says that she suffers from anxiety and depression as a result of the Husband's behaviour during the relationship. The Wife alleges the Husband has a history of addictions including a gambling addiction. As a result of her compromised health and the long period she has spent out of the workforce, as well as her need to care for X who suffers from a serious mental illness, she says that she cannot adequately support herself. The Wife contends that if the Court finds that the Husband lacks the capacity to meet her reasonable needs, her support should be paid from the parties’ controlled monies account.

4. The Wife deposes to both X and Mr P suffering from “crippling depression and anxiety” as a result of their exposure to the Husband’s behaviours, and to neither of them spending time with the Husband since separation. The Wife says she has been under significant financial stress since the parties’ separation. She has limited capacity to earn an income.  She cannot afford to meet the costs of X’s medical treatment or many of hers or X’s day to day needs. She has been slowly depleting the inheritance she received from her mother’s estate in (omitted) 2016.  Until consent orders were made at the time of this hearing, restraining the dissipation of the parties’ joint assets, the Wife was concerned that the Husband would diminish their joint assets including his (country omitted) retirement benefits. The Husband’s decision to sever the joint tenancy on the Property A property without her consent led to her concern that he would deal with his share of the property unless restrained from doing so. As already noted, the restraints sought by the Wife were made by consent at the time of this hearing.

Husband’s case

1. The Husband relies on his Response filed 10 October 2017, his Affidavit and Financial Statement sworn on the same day.  The Husband contends that the Wife is earning more than disclosed and that she has an even greater earning capacity.  The Husband’s counsel argues that the Wife has not established the basis for a number of the expenses she claims.  For example she adduces no medical evidence as to X’s treatment needs.  In relation to the lump sum sought for repairs to the Property A property, except in relation to fence repairs, the Wife fails to adduce evidence to support her contention that the repairs/works are required.  The Husband would agree only to the cost of the fence repairs being paid from the Controlled Monies Account. 

Brief chronology    

1. In (omitted) 1997, when Mr P was a few weeks of age, the family moved to (country omitted) for the Husband’s employment.  The Wife was not permitted to work and she cared for the children. 

2. In (omitted) 2000, the parties returned to live in Sydney. In (omitted) 2000, the parties purchased the Property A property in joint names. In (omitted) 2000 they moved to that home. The Wife says she planned to return to work but found she was pregnant with X and the parties decided it was more cost effective for her to care for the children.

3. In (omitted) 2002 the family moved to (country omitted), (country omitted) for the Husband’s employment, and in (omitted) 2003 the parties purchased the (country omitted) property.  The Wife was not permitted to work until 2008 when she undertook casual (omitted) work.  

4. In 2011, the Husband accepted voluntary redundancy and soon after, the parties returned to Sydney. The Wife established her own (omitted) business known as (business omitted).   From (omitted) 2011 until (omitted) 2012, the Husband was unemployed.

5. In (omitted) 2013, the Husband commenced employment as a (occupation omitted) with (employer omitted).

6. In (omitted) 2013, the Husband engaged in a 4 week residential programme for compulsive gambling behaviours and related issues.

7. In November 2014, (the Husband says August 2014) the parties separated. The Husband left the Property A property to live with his parents.

8. By early 2015, the Wife says that both Mr P and X were suffering from serious mental health issues. 

9. In approximately mid-2015, the Husband set up an arrangement with the Wife that she would pay living expenses from her own account and he would transfer $2,000 to $2,500 a month to her account. The Husband continued to pay all regular bills and mortgage.   He said at around that time, he received (country omitted) tax refunds of approximately $15,000 (omitted) which he used to fund the ongoing costs of the (country omitted) property.

10. In November 2015, after being mentally unwell for many months, X attempted suicide and was admitted to hospital until 1 December 2015.  In January 2016, a provisional AVO was made to protect the Wife from X. A final order was never made. She was readmitted in March 2016 because of a panic attack and suicidal thoughts.  Between June and December 2016, X received treatment from (omitted), from psychologists and counsellors.  

11. In April 2016, the Wife wrote to the Husband confirming her agreement to the Property A home being prepared for sale.  The Husband then paid $13,300 to repaint the home ready for sale, and repaired the deck.  A few weeks later, the Wife advised she was not willing to sell the home.  The Husband says he asked the Wife to agree to vary the mortgage payments to interest only, but she took no steps to do so. 

12. On 22 April 2016, the Wife received an inheritance from her late mother in the sum of $108,499.68.  The Husband deposes to the Wife’s deliberate deception in relation to her receipt of these funds for many months.

13. From approximately October 2016 to 12 April 2017, the (country omitted) property was untenanted and the Husband met the costs including mortgage payments on the property.  That property was later sold.

14. In July 2016, the Husband stopped making payments to the Wife’s account.

15. On 7 October 2016, the Husband was made redundant from his employment at (employer omitted) and received a termination payout of $86,700. 

16. In December 2016, the Husband stopped paying the mortgage and outgoings on Property A.  The mortgage on Property A fell into arrears and in January/February 2017, the Wife received notices from utility providers regarding overdue charges.

17. In January 2017, the Husband’s solicitors advised the Wife’s solicitors that because the Husband was unemployed, the Wife should assume responsibility for the payment of all utilities and rates and half the mortgage on the Property A property, the car insurance and half the costs associated with the (country omitted) property.  The Wife’s solicitors questioned how the Husband had applied his termination payment received only two months earlier. The Wife did not accept the Husband’s explanation of how the funds had been applied.

18. On 22 March 2017, the Husband received a child support assessment to pay $527.73 a week for X.

19. In March 2017, the parties sold the (country omitted) property for (omitted)$550,000.

20. In April 2017, the parties discharged the (country omitted) and Property A mortgages and the Husband’s credit cards, from the sale proceeds of the (country omitted) property, and deposited the balance in a controlled monies account.   

21. On (omitted) 2017, the Husband commenced employment as (occupation omitted) for (employer omitted).

22. In May 2017, the Wife says that X was diagnosed with dyslexia and dysgraphia and that the Husband refused to pay the costs of her therapy.

23. On 20 May 2017, Mr P was involved in a car accident in the (omitted) car the parties purchased during the marriage.  The car was written off  and the Wife used the $5090 she received from the insurer as well as her inheritance money to buy another car for $23,016.98. 

24. On 25 July 2017 while working, the Wife fell, damaging her (equipment omitted). She was $1,000 out of pocket after claiming on her insurance.

25. As at 31 August 2017, the Wife was meeting all the outgoings on the home and for the family with the exception of the Property A home’s building and contents insurance policy.

26. On 1 September 2017, the Wife initiated these proceedings for urgent restraints and financial relief. In September 2017, the joint tenancy on Property A was severed, against the wishes of the Wife. 

27. As at the date of hearing, the Wife had expended over half her inheritance.

Legal principles – interim spouse maintenance

1. The Wife seeks interim spouse maintenance of $1,100 a week from the Husband, or in the alternative from the parties' controlled monies account.

2. Section 72 of the Family Law Act 1975 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 himself or herself 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 s. 75(2).

3. Section 74 provides that the court may make such order for spouse maintenance as it considers proper. The Full Court in Bevan[3] held that an award of maintenance should not be at a subsistence level and should pay proper regard to the factors set out in s.75(2). The Full Court held that “reasonableness” is the guiding principle.

   [3] Bevan & Bevan(1995) FLC 92-600

4. S.72 establishes a threshold question before the power in s.74 can be exercised. The applicant must prove that she is “unable to support herself …adequately” by reason of (a) (b) or (c) above “having regard to any relevant matter in s.75(2)”. These matters include age and state of health, the financial circumstances of each party, capacity of each party for appropriately gainful employment, a standard of living that is reasonable in all the circumstances, the extent to which the party seeking maintenance has contributed to the income, earning capacity, property and financial resources of the other party, the duration of the marriage and the extent to which it has affected the earning capacity of the party seeking maintenance, and the terms of any order proposed to be made under s.79.   In Nutting and Nutting (1978) FLC 90-410 at 77,094, Lindenmayer J said:

   By sec 72 of the Act, the husband is liable to maintain the wife only to the extent that she is incapable of supporting herself adequately, and again “adequately” imports a standard of living which is reasonable in the circumstances…

   In Mitchell and Mitchell[4] the Full Court said:

   the days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself “adequately”.

   [4] Mitchell & Mitchell (1995) FLC 92-601

Can the Wife adequately support herself?

1. The Wife is 49 years of age and was out of the workforce for over 20 years while caring for the parties’ three children, looking after the home, supporting the Husband in his career, including relocating the family to (country omitted) and later to the (country omitted).  While she was engaged in (business omitted) for a limited time in both (country omitted) and Sydney before the parties separated, the Wife’s income was minimal.  She was always financially dependent on the Husband. The Wife deposes to compromised health from depression and anxiety and polyarthritis[5].  She deposes to her daughter X suffering from mental health issues and borderline personality disorder, demanding her time and care. While the Wife received an inheritance in April 2016 of approximately $108,000, she has already spent over half that inheritance on expenses she claims she has otherwise been unable to meet. The Wife’s counsel argues that it is not reasonable for the Wife to utilise all her funds, in circumstances where she has minimal earning capacity and minimal ability to provide for her needs, and the children’s needs into the future[6].

   [5] Exhibit 5

   [6] Mitchell & Mitchell (1995) FLC 92-601 & Bevan & Bevan (1995) FLC 92-600

1. The Wife deposes to ceasing full time work in 1994, then significantly reducing her working hours to care for the parties’ first child, Mr B, born in (omitted) 1996.  While the Husband says, and I accept, that he supported the Wife to establish and maintain her (omitted) business before the relationship ended, I am satisfied on the basis of the facts set out in the chronology, that the Wife never had the opportunity to engage in full time, well paid employment, as the Husband always did. The Wife deposes to the Husband working long hours and travelling frequently for up to a week approximately once a month, which resulted in the Wife being responsible for the vast majority of domestic and child care tasks.  The Wife did not return to the workforce in any meaningful way until after separation when she worked in her own fledgling (omitted) business.  

Wife’s financial position    

1. In her financial statement sworn on 31 August 2017, the Wife deposes to an income from her (omitted) business of an estimated $100 a week, child support of $535 a week for X, and Family Tax Benefits of an estimated $59 a week.  Her taxable income was $3,002 in the 2015 financial year, $5,867 in the 2016 financial year and $22,824 in the 2017 financial year (assuming the draft provided is final).  I agree with the Husband’s counsel’s submission that the Wife does not explain how the $100 a week figure has been derived.  I also accept counsel’s submission that her income in the hand has been higher than disclosed as taxable income, given her depreciation expenses are not an actual deduction in dollar terms and would have been available to her.  So while her 2016 tax return[7] discloses a gross business income of $58,496 and a taxable income of $5,867, if her claimed depreciation expense of $17,193 is added back, she would have had more than $22,000 available to her in that year or more than $400 a week. I note the Wife’s 2017 financial year taxable income of $22,824, includes her share of a nett capital gain (from the sale of the (country omitted) property) of $10,880[8]. However, her net business income is disclosed as $11,457 with depreciation expenses of $3,297.  The income available to her was therefore $14,754 or $283 a week. The Husband’s counsel submits that the Wife’s financial position is therefore not as “dire” as she would have the Husband and the Court believe.

   [7] Exhibit 2

   [8] Exhibit 1

2. The Wife does not explain how she arrived at the figure of $100 a week, gives no details as to the nature of her employment, and no evidence as to whether she works to her full capacity or has otherwise taken steps to increase her income.  I find the Wife’s income from her (omitted) business is in excess of the $100 a week deposed to.  I accept counsel’s submission that it can be inferred her income is likely to increase given her recent employment with (employer omitted).  For the purpose of the calculations I am required to undertake in these proceedings, I conclude that the Wife is earning approximately $300 a week.

3. The Wife deposes to expenses of $1,949 a week (excluding home insurance fees in the sum of $46 a week, paid by the Husband, and the estimated $670 needed for the benefit of Mr P and Mr B) but including expenses related to X. As noted, the Court cannot include these expenses in the calculation of the Wife’s reasonable needs on a spouse maintenance claim. I will address this issue when considering s.75(2)factors. The Wife’s weekly expenses include $138 in rates, $19 in health insurance, $29 in registration and comprehensive car insurance. Her additional expenses for herself total $672. If I include the $45 a week claimed for pet expenses (included as a child expense at Part N of her financial statement but equally appropriately treated as one of her expenses) the total claimed weekly expenses for the Wife are $858 +$45 = $903 including expenses she cannot presently afford to meet. The Wife has been drawing on her capital to meet part of the shortfall. To the extent possible, she has been protecting her capital by limiting her expenditure, which is well in excess of her income.

4. If I accept all her claimed expense figures as reasonable, the Wife has a shortfall of $603 a week based on my finding that her business income is $300 a week, not $100 a week as deposed.    

5. The Husband challenges the Wife’s claimed expense of $200 a week in relation to medical/dental/optical gap. The Husband’s counsel submits that in the absence of any medical evidence, her claim for this expense must fail. The Wife deposes to suffering from post-traumatic stress disorder as a result of the Husband’s conduct during the relationship, but says she cannot afford either an assessment of her condition or treatment. She deposes to suffering from severe anxiety and stress as a result of her caring responsibilities for Mr P and X and because of the financial stress caused by the Husband’s lack of financial support since separation.  She suffers panic attacks.  In addition to counselling for stress related symptoms, she says she has been advised she needs a mouth guard to relieve headaches, neither of which she can presently afford.  

6. While I find some merit in counsel’s submission as to the absence of independent evidence, I find the medical expense claimed reasonable. I find it noteworthy that the Husband claims an almost identical sum for his own counselling needs. While the Husband’s counsel submits that other expenses claimed by the Wife are excessive, unreasonable or otherwise not actual expenses the Wife incurs, counsel does not specifically challenge other individual items claimed. Having regard to a standard of living to which the Wife was accustomed during the relationship[9] and noting a number of the expenses claimed by the Wife are considerably less than the same expense claimed by the Husband for himself, I am satisfied that the Wife’s reasonable expenses total $903 a week and that she is unable to meet expenses of $603 a week from her income.  

   [9] Nutting & Nutting (1978) FLC 90-410

Assets

1. The Wife deposes to owning the Property A home jointly with the Husband, to bank proceeds of $75,361 (excluding account held for X), $2,918 in a paypal account, $86 in a (omitted) share portfolio and $41,981 (50% of $83,962) in the parties’ Controlled Monies Account.  The Wife has a car with an estimated value of $23,000, a (omitted) business of unknown value (generating a small income), household contents with an estimated value of $5,000, and $4,000 in her solicitors’ trust account. She holds gold coins gifted to the three children by her mother. The Wife deposes to a superannuation entitlement held in two funds with a total value of $27,839. She has no liabilities. 

2. The Husband questions the accuracy of the Wife’s asset position. He relies in particular on her failure to disclose receipt of her inheritance in April 2016, until December 2016. He believes the Wife has held accounts she has not disclosed. While the Wife clearly failed in her legal obligation to fully disclose her financial position when withholding information about her inheritance, I find no evidence to support a finding that the Wife is hiding assets.

3. I do not accept the Husband’s counsel’s argument that the Wife’s asset position disqualifies her claim for interim spouse maintenance, and that the case of Mitchell[10] should be distinguished. I am not satisfied it would be reasonable to require the Wife to spend her only capital funds to meet her reasonable needs, while the Husband meets his expenses on the income made possible by the Wife’s domestic contributions made over a 20 year marriage.

   [10] Mitchell & Mitchell (1995) FLC 92-601

4. On the basis of my findings, I am satisfied that the Wife cannot adequately support herself and that her reasonable needs total a net $603 a week.

Does the Husband have capacity to pay?

1. The Husband’s counsel submits that despite his income and earning capacity, the Husband has no capacity to meet a spouse maintenance claim.   He asks the Court to note that the Husband has not been able to establish more permanent living arrangements, while the Wife has had the advantage of living in the former matrimonial home.

Husband’s financial position

1. The Husband is living with his partner and earning $220,000 a year (as assessed by the Child Support Agency), or $920 a day as an (occupation omitted) for (employer omitted). His contract expired on 7 November 2017 but there was no evidence before me that his employment situation was likely to change after that date. The Husband earned income of up to $300,000 per annum during the marriage. The Husband relies on his Financial Statement sworn on 10 October 2017. He deposes to an income of $3,809 a week made up of $3,732 in salary, $4 in dividends, $2 in interest, $71 in superannuation (a figure slightly different from given in his affidavit). He deposes to an income of $3,738 excluding superannuation. He deposes to his partner, Ms S receiving income of an estimated $1,731 a week and to her son receiving an estimated $350, but says neither meets any expenses for his benefit.

2. The Husband deposes to weekly expenses of $3,554 a week, made up of tax at $1,177, rent of $400, home insurance of $42, car insurance of $18, health insurance of $75, registration of $7, child support of $530.   His additional day to day expenses are estimated at $1,305 a week, including $40 for repairs and appliances, $105 for entertainment and holidays, $195 on medical and dental, $88 a week for gifts, $312 for cigarettes, gym membership and administration fee for (omitted). He pays Mr B’s car insurance and greenslip at $30 a week but otherwise has no other expenses for the children, except child support, because they spend no time with him.  If I were to accept all the expenses he claims, which are substantially higher than those of the Wife, the Husband would have a surplus from which to meet a spouse maintenance order of $184 a week.            

3. The Husband jointly owns the Property A home, holds $30,639 in bank accounts and 50% of the funds in the Controlled Monies Account. He owns an estimated $2,621 in (omitted) shares, $328 in (omitted) shares, an estimated $5,000 in household contents and $3,000 in his solicitors’ trust account.  He has superannuation entitlements in various accounts of $338,075.  He deposes to a credit card debt of $756.  He identifies financial resources with an estimated value of $264,159 by way of  (country omitted) retirement benefits.  

4. Until July 2016 the Husband was able to meet payments each month to the Wife and until December 2016, he paid the expenses on the Property A home including the mortgage.  He had received $86,700 when made redundant from (employer omitted) in October 2016 to cover his expenses when he was unemployed[11]. The Husband commenced work again on 2 May 2017 earning $920 a day[12] as well as superannuation.  He was able to pay $13,000 to have the Property A house painted and prepared for sale.  

   [11] Annexures B-11 & B-17 to Wife’s affidavit filed 1 September 2017

   [12] Annexures B-31 to Wife’s affidavit filed 1 September 2017

5. As already noted, on a comparison of each party’s claimed expenses, the Husband claims more for entertainment, for food, holidays, for car expenses, clothing and shoes, chemist, for gifts, for hairdressing and toiletries than does the Wife. In addition he claims $312 a week for other necessary expenses (including cigarettes, a gym membership, and an admin fee from (omitted)).  He pays $400 a week in rent to his landlord who is his partner.  If I allow $150 for food (the Wife claims $100), $25 for hobbies/entertainment (the Wife claims $25), $10 for gifts (the Wife claims $5) and $200 a week for other necessary expenses (the Wife claims $8), that reduces the Husband’s expenses by $274 a week but still allows him higher expenses than the Wife.  He already has a surplus of $184 a week on his own figures.  This would give the Husband a total surplus of $458 a week from which to pay interim spouse maintenance.

What order is reasonable having regard to relevant s.75(2) factors?

1. The Wife’s counsel submits that the Wife, at 49 years of age, has compromised health, including anxiety, depression and arthritis; the Wife has responsibility for caring for X who suffers from significant mental health issues.  Counsel submits that the Husband has the greater capacity to work and to earn a substantial income and that the Wife seeks a modest standard of living, considerably lower than the standard of living the parties enjoyed during the marriage. Counsel submits that even on his own evidence, the Husband enjoys a far superior financial position to that of the Wife.

2. The Husband’s counsel submits that the court should have regard to the length of time since separation (3 years), and to the Husband’s financial support to the Wife until 12 months ago.

3. The Husband admits he has suffered from various addictions which has resulted in monies being wasted and has necessitated undertaking treatment in a residential facility. The Wife’s unchallenged evidence is that the balance of the mortgages secured on the (country omitted) and Property A properties would have been significantly less, and the value of the parties’ assets greater, had the Husband not gambled.  In December 2013, the Husband entered a rehabilitation programme at the (omitted) for 4 weeks, the discharge summary noting that he presented with “compulsive gambling behaviours”. I find this a relevant factor under s.75(2)(o).

Determination  

1. I have determined that the Husband will pay spouse maintenance to the Wife in the sum of $400 a week on an interim basis.  I have determined to dismiss the Husband’s interim application for the Property A property to be sold.  That will be a question for final hearing if the property matter is not resolved earlier.

Lump sum spouse maintenance

1. The Wife seeks a payment of $26,000 from either the Husband directly, or from the parties’ controlled monies account.  Neither party’s counsel addressed the Court on how this claim should be treated. The Wife’s counsel submits it is a claim for lump sum spouse maintenance or otherwise should be characterised by the Trial Judge when the matter is finally determined. The Wife discloses details of urgent repairs required to the former matrimonial home in which she and the children are living:

   a)The fence has collapsed and the dog gets out. Estimated cost of repair $3,000.

   b)Structural repairs to the home on the advice of an engineer because of the “house sliding”.  Estimated cost $20,000 plus.

   c)The deck and stairs need urgent repairs due to wood rot.  Estimated cost $10,000 plus.

   d)The leadlight windows are broken and the wooden frames have rotted, letting cold air into the home. Estimated cost  approximately $6,000. 

   e)There is no door to the shower.  Estimated cost $5,000 to replace the shower.

   f)The garden is seriously overgrown. Costs of gardening services (given the Husband has removed all gardening tools) is $1457.50[13].

   [13] Annexure B-9A to Wife’s affidavit filed 1 September 2017

2. The Husband agreed to a payment for the fence repairs from the jointly held funds, but to nothing more. 

3. The Husband relies on a real estate report[14] to contradict the Wife’s contention that the Property A home is collapsing. The Husband submits that the Court should reject the Wife’s claims that repairs are required urgently on the Property A property, and should conclude they are capital improvements the Wife wants the Husband to fund.  

   [14] Annexure H to Husband’s affidavit filed 10 October 2017

4. I am not satisfied a real estate agent’s report in relation to works required for sale equates to a building report. However, in the absence of any independent evidence from the Wife as to her estimates of costs, nor am I satisfied the lump sums sought are justified.  I find it reasonable for some items of the Wife’s lump sum claim to be met.  These are the fence, repairs to wood rot on stairs and deck, repairs to windows, cost of door to shower, cost of gardening services as quoted.  I do not find it reasonable for major structural work to be undertaken when the Wife adduces no evidence of the engineer’s opinion to which she refers.

5. The Wife will be required to provide an invoice up to an amount of no more than claimed in her affidavit for each item, before payment will be authorised from the joint account. If the invoice is for an amount higher than claimed, the Wife will meet the additional cost. These payments will be characterised by the Trial Judge if the matter proceeds to hearing. 

Procedural issues

1. While the Wife seeks costs of this Application, given my findings, and the Orders I have made, I do not propose to make any order for costs.

2. The matter has been listed for mention before His Honour Judge Kemp on 27 February 2018 at 9.30 a.m, when it is anticipated the balance sheet will be settled and the matter ready for conciliation or mediation.

I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date:  5 December 2017