BLUM & BLUM
[2019] FCCA 3346
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLUM & BLUM | [2019] FCCA 3346 |
| Catchwords: FAMILY LAW – Spousal maintenance – where Applicant has need – where Respondent has capacity. |
| Legislation: Family Law Act 1975 (Cth), ss.72, 74, 75 |
| Cases cited: In the Marriage of Mee & Ferguson (1986) 84 FLR 179 |
| Applicant: | MS BLUM |
| Respondent: | MR BLUM |
| File Number: | SYC 2319 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 12 June 2019 |
| Date of Last Submission: | 24 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr O'Sullivan of O'Sullivan Legal |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | Barry Nilsson Lawyers |
ORDERS
PENDING FURTHER ORDER, THE COURT ORDERS:
That the Husband pay to the Wife the sum of $5,027.00 per month as spousal maintenance, the first such payment being payable by the Husband on 22 November 2019 into a bank account nominated for that purpose by the Wife to the Husband in writing, and thereafter payable monthly on the 22nd of each month until a final payment pursuant to this order on 22 March 2021.
That the Husband pay to the Wife lump sum spousal maintenance of $35,189.00 (being seven payments of $5,027.00 for the months of April to October 2019 inclusive), such payment to be made by the Husband into a bank account nominated for that purpose by the Wife in writing to the Husband by a payment of $10,054.00 by no later than 31 January 2020, a payment of $10,054.00 by no later than 30 April 2020, a payment of $10,054.00 by no later than 31 July 2020, and a payment of $5,027.00 by no later than 31 October 2020.
That each party’s application for the costs of the interim proceedings are reserved to the final Hearing.
IT IS NOTED that publication of this judgment under the pseudonym Blum & Blum is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2319 of 2019
| MS BLUM |
Applicant
And
| MR BLUM |
Respondent
REASONS FOR JUDGMENT
Introduction
On 12 June 2019 I conducted an interim Hearing on the issue of spousal maintenance between Ms Blum as Applicant Wife (“the Wife”) and Ms Blum as Respondent Husband (“the Husband”). I apologise to the parties for my delay in making Orders and delivery of my reasons.
In her Initiating Application the Wife sought an interim order that the Husband pay her $5,055 per month spousal maintenance until and including March 2021 or such further time as the Court orders, payments to commence from March 2019, the backdated amounts to be paid by the Husband to the Wife as a lump sum within 14 days of Orders.
In his Response the Husband sought that the Wife’s Application for interim orders be dismissed.
Each party sought that the other party pay the costs of the application.
Background
The parties met in about November 2011, commenced cohabitation in June 2012, married on 3 October 2012 and separated on 16 March 2018. In her affidavit relied upon at interim Hearing the Wife deposed that the parties separated in March 2016, but all of the context of the evidence of both Wife and Husband, and the statement as to the date of final separation at paragraph 27 of the Wife’s Initiating Application indicate that the parties are in agreement that the date of separation was 16 March 2018.
The Husband is 37 years of age and the Wife is 41 years of age.
There are no children of the relationship.
At the commencement of cohabitation the Husband was employed by a company. The Husband changed employers to another company on 1 July 2014. The Husband was in employment throughout the whole of the parties’ cohabitation.
When cohabitation commenced, the Wife was not in employment and was caring for her ailing Mother who passed away in August 2012. The Wife had a number of short-term employments between February 2014 and late 2016.
The Wife was primarily responsible for the homemaker role – cooking, cleaning, ironing, washing, shopping – and the Husband undertook the financial management of the household and provided the parties’ financial support.
The Wife has suffered from anxiety and depression since her high school years. She presented evidence at interim Hearing from Dr A, Consultant Psychiatrist, who has been the Wife’s treating psychiatrist since October 2017, that she suffers from recurrent Major Depressive Disorder, Panic Disorder and a phobia, that she displays symptoms consistent with Post Traumatic Stress Disorder, and that she is medicated.
The Wife also presented evidence from Dr B, Consultant Psychologist, who administered the Depression, Anxiety and Stress Scale (DA SS 21) test to the Wife in August 2017 with results indicating depression in the extremely severe range, anxiety in the extremely severe range, and stress in the severe range. Dr B indicated in his report that he had been “counselling [the Wife] since 30 August 2017”,[1] but did not give detail of any appointments or tests administered after 30 August 2017. Dr B offered the opinion “that [the Wife] suffers from Post-Traumatic Stress Disorder with episodic experiences of Major Depression.”[2]
[1] Affidavit of Dr B sworn or affirmed 11 April 2019, annexure B.
[2] Affidavit of Dr B sworn or affirmed 11 April 2019, annexure B [63].
In paragraph 34 of his affidavit, the Husband acknowledges that the Wife has suffered from anxiety and depression and that those conditions were exacerbated by the passing of her mother in 2012.[3]
[3] Husband’s affidavit sworn or affirmed 2 May 2019, [34].
The Wife gives evidence that she assisted the Husband to further his career by providing care and comfort to him, particularly whilst he worked from home and that he asked her not to engage in paid employment. The Husband denies that the Wife assisted him in his career or that he asked her not to work.
During the relationship the Wife took up a couple of social pastimes inclusive of sports competition and, when injury forced her to give up that pastime, dancing classes.
At about the time of the separation, the parties agreed informally that the Husband would pay to the Wife $5,050.85 per month for her support. The Husband made such payments from March 2018 until February 2019 and then on 14 March 2019 he paid the Wife $3,434.93.
Over the period from March 2018 until March 2019 the Husband paid the Wife the additional sum of $11,800, being a total payment of $70,794.93. The Wife deposes that she was only able to survive financially during that period because of the monies so received by her from the Husband.
The Husband continues in his employment as a sales professional and Team Leader.
Following separation the Wife gained part-time employment in late March 2019 as a healthcare worker on a part-time basis three hours per week earning, on average, $86.43 per week.
The Wife has training and experience in the personal services industy. The Wife deposes that she is not able to work any more than three hours per week and that she is not able to work in the personal services industy due to her mental health issues. There is no specific evidence by either Dr B or Dr A as to the Wife’s current capacity to engage in gainful employment.
The Wife deposes that during cohabitation she was subjected to family violence by the Husband in the nature of repeated derogatory taunts and denial of financial autonomy. I am not able to find on the basis of the evidence presented on interim Hearing that any such behaviour by the Husband, if it occurred, has contributed to the current state of the Wife’s mental health issues and the consequent effect on her ability to engage in appropriate employment.
The Evidence
At interim Hearing, the Wife relied upon
a)Her Initiating Application filed 11 April 2019;
b)Her affidavit sworn 30 May 2019;
c)The affidavit of Dr B sworn 11 April 2019;
d)The affidavit of Thomas O’Sullivan (attaching the report of Dr A) sworn 13 May 2019;
e)Her Financial Statement sworn 10 April 2019; and
f)Her Financial Statement 30 May 2019.
Documents were tendered on behalf of the Wife and admitted into evidence, being:
a)A Case Outline as exhibit A1; and
b)A bundle of emails as exhibit A2. The bundle of emails included an email dated 9 September 2018 from a person offering the Wife eyelash extensions training and attaching a print of a chain of SMS messages, undated and unattributed, in relation to which a misunderstanding arose at Hearing, dealt with at the end of these reasons.
At the interim Hearing objection was taken by the Husband through his Counsel, Mr Dura, to the affidavits of Dr B and Thomas O’Sullivan and certain paragraphs in the affidavit of the Wife, as detailed in the Husband’s Case Outline document (tendered into evidence as exhibit R1). I was invited by Mr Dura to consider those objections in Chambers and no objection to that course was raised by Mr O’Sullivan as solicitor advocate for the Wife. I took submissions from both parties’ representatives in relation to the admissibility of the affidavits of Dr B and Thomas O’Sullivan and of the medical reports annexed to each.
The Husband’s objections to the affidavits of Dr B and Mr O’Sullivan were principally in relation to the medical reports annexed to those affidavits and were made under section 135 of the Evidence Act 1995 (Cth) (‘the Evidence Act’), that their prejudicial effect on the Husband’s case outweighed the probative effect in the Wife’s case.
Mr O’Sullivan is a solicitor in the firm acting for the Wife (and the brother of the Wife’s solicitor advocate at interim Hearing) and his affidavit annexes the report of Dr A. That report is, therefore, hearsay, but as the interim Hearing is an interlocutory proceedings and evidence was adduced in the affidavit of Mr O’Sullivan as to its source, it is admissible under section 75 of the Evidence Act.[4] It is not a business record as it was produced for the purpose of the proceedings, pursuant to section 69 of the Evidence Act.[5]
[4] Evidence Act 1995 (Cth) s 75.
[5] Evidence Act 1995 (Cth) s 69.
As to the Husband’s objection based on section 135 of the Evidence Act, both reports annexed to the affidavits are from the Wife’s current treaters and give evidence of her current medical condition, information highly relevant under section 75(2) of the Family Law Act 1975 (“the Act”) as a matter to which the Court must have regard. I cannot see the basis of a prejudice to the Husband’s case, other than that the evidence may assist the Wife’s case, and that alone is not a basis for finding the balance tips towards prejudice over probative value.
I find that both affidavits and the medical reports annexed are admissible in the interim proceedings and that their probative effect is, as always, a question of the weight to be given to each. As stated earlier, neither medical report directly addresses the Wife’s ability to engage in gainful employment at the current time or in the future.
In relation to the objections taken by the Husband to the Wife’s affidavit, I have considered those objections in Chambers and I have allowed all of those objections, except the objections to paragraphs 15, 16, 18, 20, 22 and 49.
At interim Hearing, the Husband relied upon:
a)His Response filed 3 May 2019;
b)His affidavit sworn or affirmed 2 May 2019; and
c)His Financial Statement sworn or affirmed 2 May 2019.
Documents were tendered on behalf of the Husband and admitted into evidence, being:
a)His Case Outline document as exhibit R1;
b)A bundle of 10 photographs with some surrounding text taken from the Wife’s Instagram account and depicting her engaging in her pole dancing pursuits (8 photographs) and at the seaside (2 photographs) as exhibit R2;
c)A bundle of bank statements from the Wife’s Bank C account ending #8090 for the period 1 May 2018 until 31 January 2019 as exhibit R3; and
d)A bundle of bank statements from the Wife’s Bank C account ending #8090 for the period 1 February 2019 to 30 April 2019 as exhibit R4.
I have read and considered all of the affidavit evidence and Financial Statements admitted for each of the parties and I have considered the evidence in the exhibits, particularly those parts of the exhibits to which I was directed in submissions.
The Submissions
Mr O’Sullivan as solicitor advocate for the Wife provided an outline of his submissions in his Case Outline document[6] and I have carefully read and taken into account those written submissions. Mr O’Sullivan made verbal submissions at Hearing in which he particularly referred me to annexure “E” to the Wife’s affidavit, being the PAYG payment summaries for the Husband from his employer for the financial years ended 30 June 2015, 2016, 2017 and 2018 and the Husband’s payslips from his employer for July 2018 to April 2019 inclusive, as evidence going to the Husband’s ability to pay spousal maintenance to support the Wife.
[6] Exhibit A1.
He submitted that on the basis of the evidence so presented, the Husband had a gross income of about $7,000 per week available to him and that after deduction in full of his asserted expenses he would have some $3,200 available to him as income in excess of expenses to apply towards the Wife’s asserted need for support by way of spousal maintenance.
Reference was made by Mr O’Sullivan in his submissions to the Wife’s financial circumstances as evidenced in her updated Financial Statement affirmed 30 May 2019 that she has a total weekly income of $86 by way of wages received from her employment as a healthcare worker and that she has reasonably necessary and unavoidable living expenses of $1,246 per week, with available capital of only some $457 in savings, being a shortfall of income to meet those expenses of $1,160 per week.
In relation to the Wife’s capacity to engage in appropriate gainful employment, it was submitted on her behalf that on the totality of the evidence of Dr A and Dr B as medical experts and of the Wife in her affidavit, the Wife’s current mental health difficulties prevent her from seeking employment beyond her current three hours per week. The bundle of emails tendered on behalf of the Wife and admitted into evidence as exhibit A2 include evidence that the Wife has sought and undergone further training in the personal services industy with a view to seeking and taking up employment of that nature at some time in the future.
Verbal submissions were made at hearing by Mr Dura for the Husband pointing out that the Wife did not present any evidence of attempts made by her to seek any employment other than the current employment since the parties’ separation. He referred to annexure “B” to the Husband’s affidavit, which is an historical Curriculum Vitae of the Wife indicating that she has experience in the personal services industy and that she has undertaken education and training in the personal services industy and the hospitality industry and obtained qualifications in those industries.
The photographs in exhibit R 2 showing the Wife engaged in her pole dancing pursuits and by the seaside were submitted to indicate that there was no truth in the Wife’s assertion in her evidence that she had difficulty being out in public places or being in any situation where she could be approached unawares from behind.
Mr Dura referred to the sum of $65,000 provided to the Wife by members of the family over time and that the Wife’s evidence did not particularise how the sums had been spent other than to assert that it had all been used for living expenses.
The Wife’s bank statements tendered and admitted into evidence as exhibits R3 and R4 were submitted to indicate, by reference to particular entries, that the Wife had taken a holiday at her own expense to Town D in Queensland in May 2018 and had paid for airline travel in August 2018 in relation to a holiday to Country E with her sister shortly before the interim Hearing. They were also submitted to show that the Wife, by making ATM withdrawals, was well able to undertake transactions in public places on a daily basis despite her assertions that her anxiety and depression problems prevented her from engaging in employment beyond what she currently does.
The Law
The issue in these proceedings is whether or not the Husband should pay spousal maintenance to the Wife and, if so, in what amount and for what period of time, all on an interim basis.
The Husband is liable to maintain the Wife, to the extent that the Husband is reasonably able to do so, if, and only if, the Wife is unable to support herself adequately by reason of physical or mental incapacity for appropriate gainful employment or for any other adequate reason, having regard to, and only to, any relevant matters referred to in subsection 75(2) of the Act.[7]
[7] Family Law Act 1975 (Cth) s 72.
The Court’s powers in spousal maintenance proceedings are set out in section 74 of the Act.[8] The Court may make such order as it considers proper for the provision of maintenance in accordance with that Part VIII of the Act.[9] In making that order the Court must take into account only the matters referred to in section 75(2) of the Act.[10]
[8] Family Law Act 1975 (Cth) s 74.
[9] Family Law Act 1975 (Cth) s 74(1).
[10] Family Law Act 1975 (Cth) s 75(1). See also Hall & Hall (2016) 257 CLR 490, [3]-[10], [52]-[58].
In In the Marriage of Redman,[11] the Full Court said that:
… on an application for interim maintenance the Court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: In the Marriage of Williamson (1978) 4 Fam LR 355 at 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of s 97(3), the Court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under s 83.[12]
[11] In the Marriage of Redman (1987) 11 Fam LR 411.
[12] In the Marriage of Redman (1987) 11 Fam LR 411, 415.
There is no fettering principle that the pre-separation standard of living must automatically be awarded and reasonableness in the circumstances is the guiding principle.[13]
[13] See In the Marriage ofBevan (1993) 120 FLR 283.
In Maroney & Maroney, Coleman J said at paragraph [56]:
[56] … The “capacity” to meet an order for interim spousal maintenance is not confined to income. Once a party, such as the Wife in this case, establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.[14]
[14] Maroney & Maroney [2009] FamCAFC 45, [56] (Coleman J).
In In the Marriage of Bevan,[15] the Full Court of the Family Court of Australia summarised the pathway to an order for spousal maintenance as follows:
[15] In the Marriage ofBevan (1993) 120 FLR 283.
1. A threshold finding under section 72;
2. Consideration of sections 74 and 75(2);
3. No fettering principle that pre-separation standard of living must automatically be awarded where the Respondent’s means permit; and
4. Discretion exercised in accordance with the provisions of section 74, with “reasonableness in the circumstances” as the guiding principle.[16]
[16] In the Marriage ofBevan (1993) 120 FLR 283, 290
The task of making the threshold finding in a spousal maintenance case, interim or final, may be regarded as involving three questions, with a ‘yes’ answer required to the first question before the Court can pass on to the second question, and a ‘yes’ answer required to the second question before the Court can pass on to the third question.
The first question is “Does the Applicant for a spousal maintenance order have a need?” Put simply, the test is to ascertain the Applicant’s relevant income (bearing in mind section 75(3) of the Act)[17] and the Applicant’s reasonably necessary and unavoidable living expenses.[18]
[17]. Family Law Act 1975 (Cth) s 75(3):
In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
[18] See In the Marriage of Mee & Ferguson (1986) 84 FLR 179; In the Marriage of Gyselman (1991) 103 FLR 156.
If the Applicant’s said expenses are less than or equal to the Applicant’s relevant income, the Applicant does not have a need – a ‘no’ answer – and there the matter ends. If the Applicant’s said expenses are in excess of relevant income, the Applicant has a need – a ‘yes’ answer, one goes on to the second question.
The second question is “Does the Respondent have a capacity to pay?” The test is the same – ascertain the Respondent’s income and the Respondent’s reasonably necessary and unavoidable living expenses. If the Respondent’s income is the same as or less than the Respondent’s said expenses, the Respondent does not have a capacity to pay – a ‘no’ answer – and there the matter ends. If the Respondent’s income is in excess of the Respondent’s said expenses, the Respondent has a capacity to pay – a ‘yes’ answer – one goes on to question three.
The third question is, of course, how much of the Respondent’s excess of income over expenses should the Court order the Respondent to pay to the Applicant to assist the Applicant with his or her excess of expenses over income.
As I said, my description of the test for questions one and two is ‘put simply’. In each case, all of the relevant matters in section 75(2) of the Act, and only those matters,[19] must be taken into account – including any question relating to “earning capacity” of either party if asserted by the other party to be greater than the party’s income. Though section 75(2)(b) does not refer to “earning capacity” (unlike subsections 7(2)(h), (j) and (k)) it is a matter properly to be taken into account under section 75(2)(o).[20]
[19] Family Law Act 1975 (Cth) s 75(1).
[20] In the Marriage of DJM & JLM (1998) 23 Fam LR 396.
The Wife’s financial circumstances and reasonable needs
The Wife’s income disclosed in her Financial Statement is $86 per week from her average three hours per week employment as a healthcare worker.
There is no evidence on which I can make a finding that the Wife is in receipt of any income over and above that stated in her Financial Statement.
In the period between the parties’ separation in March 2018 and the interim Hearing in June 2019, the Wife had the assistance of the payments of $5,054.79 per month from the Husband for 12 months, a final payment of $3434.93 and other payments to a total of $11,800.00, being a total of $70,794.28.
In her Financial Statement affirmed 30 May 2019 she indicated savings of $457, down from $10,400 as stated in her Financial Statement affirmed to 10 April 2019. She also had the assistance of $15,000 received from her father on 6 March 2018, 10 days prior to the parties’ separation. It is the Wife’s evidence that the whole of these monies other than the $457 retained in her savings have been spent on her living expenses in the period between separation and interim Hearing.
For much of the period between separation and interim Hearing, the Wife was paying rent for the premises she occupied in a sum of $525 per week, being expenditure of $27,300 per year on rent.
The Wife was criticised by the Husband in the submissions made on his behalf for expenditure on holidays to Town D and to Country E. In her Financial Statement the Wife makes allowance in Part N for $20 per week for holidays, being $1040 per year. For his part the Husband in his Financial Statement in Part N makes allowance of $104.17 per week for holidays, being $5,416.84 per year. On the basis that the Husband puts forward this sum as his expenditure on holidays for the year I find that an expenditure by the Wife as asserted by her is reasonably necessary expenditure.
I have examined carefully the personal expenditure of the Wife set out in Part G and Part N of her Financial Statement and I find that all of that expenditure is reasonably necessary and unavoidable.
The Wife has savings of only $457 as at 30 May 2019 and no other assets besides her motor vehicle of modest value and her household contents. She has no capital assets that she could apply by liquidation toward her support.
I am satisfied on the basis of the evidence before me, and I find that the Wife’s current income amounts to $86 per week and her reasonable needs amount to $1,246 per week. On the basis of the medical evidence, the Wife’s evidence and paragraph 34 of the Husband’s affidavit, I find that the Wife suffers from mental health issues by way of a Major Depressive Disorder, Panic Disorder (anxiety) and may have post-traumatic stress disorder. The evidence presented by the Wife refers to traumatic events in her youth including long term sexual abuse and being in the care of a parent abusing alcohol.
Does the Wife have the ability to engage in appropriate gainful employment to an extent greater than her current employment? I have found that the Wife suffers from mental health issues. It is the Wife’s case that her consequent health circumstances currently prevent her from working more than her current average of three hours per week and that in particular she finds herself unable to engage in any employment that requires her to “work in open spaces where men could unexpectedly approach her from behind, such as cosmetic counters, open plan offices, and classrooms.”[21]
[21] Affidavit of Dr B sworn or affirmed 11 April 2019, annexure B [66b].
In paragraphs 18 and 20 to 23 of his affidavit, the Husband gives evidence of the Wife’s employment history during their cohabitation and in particular that for various reasons, but including her anxiety state, she did not maintain any position of employment for any extensive period – one job he obtained for her with his employer for six weeks, but most lasting no more than one or two days.[22] He also, to his great credit, gives evidence in paragraph 35 of his affidavit of his concern for the Wife’s mental health during the breakdown of their relationship, raising a clear inference that his concern was in relation to her personal welfare under the stress of the emotions consequent upon relationship breakdown.[23]
[22] Husband’s affidavit sworn or affirmed 2 May 2019, [20], [21].
[23] Husband’s affidavit sworn or affirmed 2 May 2019, [35].
On the basis of all of the evidence I find that the Wife is currently engaging in paid employment to the extent of her current capacity.
Accordingly, I find that the Wife is currently unable to support herself adequately.
The Husband’s financial circumstances
The Husband deposes in his Financial Statement sworn or affirmed 2 May 2019 that his current weekly income is $3,846 per week from salary or wages and an additional $416.67 from a car allowance provided to him by his employer, being a total weekly income of $4262.62.
In his affidavit at paragraph 47 the Husband deposes
I have adopted my base salary of $200,000 plus superannuation in my Financial Statement. This is because it would largely distort my weekly financial position to adopt an income estimate that includes my commission payments.[24]
[24] Husband’s affidavit sworn or affirmed 2 May 2019, [47].
In paragraph 48 he deposes
My taxable income for the financial year ended 30 June 2018 was $395,573 and $390,557 for the financial year ended 30 June 2017. My taxable income for the 2018/2019 financial year will not be known until it is complete. My taxable income for the 30 June 2017 and 2018 years includes my commissions and it is not an accurate reflection of the actual funds I have available to me each week.[25]
[25] Husband’s affidavit sworn or affirmed 2 May 2019, [48].
Using the PAYG summaries annexed to the Wife’s affidavit I find that for the year ended 30 June 2016 the Husband’s gross pay, including car allowance (see below) was $459,156; for 2017 was $403,347; and for 2018 was $424,770. The average for the three years is $429,091 or $8,251.75 per week.
Using the Husband’s payslip for April 2019 annexed to the Wife’s affidavit, I find that the Husband’s gross earnings for the 2018/2019 financial year up to 30 April 2019 were $277,398.73, inclusive of car allowance and commissions. That is a period of 304 days. Extrapolating that amount of earnings at an average rate over 365 days the Husband’s gross income including car allowance and commissions for the year ended 30 June 2019 would be $333,060 or $6,405 per week gross income.
In Parts G and N of his Financial Statement that Husband asserts that his total personal weekly expenditure is $3,816.55. This includes $162.10 per week for motor vehicle expenses and it is on this basis that I have included the Husband’s car allowance in my analysis of his income. It also includes the amount of $104.17 per week expenditure for holidays ($5,416.84 per year) and $107.37 per week for entertainment and hobbies ($5,583.24 per year).
The Husband deposes to having credit card liabilities totalling $18,329, giving rise to weekly payments totalling $225. There may be some double-counting in relation to the expenditure of the Husband set out in Parts G and N of his Financial Statement, by reason of this weekly payment on credit cards possibly covering any of the other expenditure set out if it were paid on credit card, but there is nothing in the evidence or by way of submissions enabling me to make any finding in that regard.
No issue was taken by the Wife in submissions in relation to any particular item in the Husband’s claimed expenses.
The Husband deposes to savings totalling $4,570 at 2 May 2019. He owns a motor vehicle valued at $67,500, but subject to finance in the sum of $79,410, and he has household contents valued at about $15,000. Other than superannuation the Husband does not have any other assets.
I find that the Husband’s gross income is in the range from $6,000-$8,000 per week and that his reasonably necessary and unavoidable expenses are $3,816.55 per week. If I take the Husband’s gross income as $6,000 and his said expenses as $3,816.55 per week, he has an excess of gross income over expenses of $2,183.45 per week and I accordingly find that he has an ability to provide support to the Wife.
Findings as to the section 75(2) matters to be taken into account
Husband is 37 years of age and the Wife is 41 years of age. The Husband is in good health and he is able to and does engage in appropriate gainful employment. There is evidence that the Wife suffers from mental health issues as outlined earlier in these reasons and I have found that those mental health issues are currently affecting the Wife’s ability to engage in appropriate gainful employment beyond her current part-time employment of an average three hours per week.
Neither of the parties has any capital assets that can be liquidated and applied toward their support, other than some modest savings held by the Husband and some very modest savings held by the Wife at the time of completing their Financial Statements for the interim Hearing.
It is asserted by the Husband in paragraphs 28 and 29 of his affidavit that the Wife has received funds from her Father, an assertion confirmed by the Wife in paragraphs 34 and 35 of her affidavit. Those funds were a gift of $50,000 in February 2017 and another of $15,000 in cash on 6 March 2018.[26]
[26] Wife’s affidavit sworn or affirmed 30 May 2019, [34], [35].
If there is any inference in the Husband’s affidavit that the Wife can have access to further funds from her Father it is not a matter that on the evidence I can take into account in any way. The Wife’s Father has, on the evidence, lost capacity to manage his own affairs, is in an aged care facility and his affairs are being managed under a power of attorney by the Wife’s sister.
I have found that the Wife’s income is $86 per week and that her reasonably necessary and unavoidable expenses are $1,246 per week, being a shortfall of income in relation to expenses of $1,160 per week.
I have found that the Husband’s income is at least $6,000 per week and that his reasonably necessary and unavoidable expenses are $3,816.55 per week, giving him an excess of income over expenses of $2,183.45 per week.
Neither party is responsible for the support of any other person. On the evidence, neither party is eligible for any pension, allowance or benefit under the law of the Commonwealth or of a state or territory or of another country or under the prevailing superannuation legislation, both being under the age of 55 years.
In the event that the Wife was eligible for and in fact receiving any pension allowance or benefit as described, I would be required to disregard such entitlement in exercising the Courts jurisdiction under section 74.[27]
[27] Family Law Act 1975 (Cth), s 75(3).
A standard of living for the Wife that is in all the circumstances reasonable is the standard of living reflected in the expenses listed by her in parts G and N of her Financial Statements. In comparing the expenses asserted in the Wife’s Financial Statement with those in the Husband’s Financial Statement, I find that the Husband has a higher standard of living than the Wife. It would seem on the evidence that the standard of living of the Wife is lower than that which she enjoyed during the parties’ cohabitation.
At the time of interim Hearing, when no payments by way of support were being paid by the Husband to the Wife, the Husband’s a standard of living was, on the evidence, about the same as that enjoyed by him during the parties’ cohabitation. However, in the event that an order is made for the Husband to contribute to the Wife support by way of periodic spousal maintenance payments in the sum sought by the Wife, then the Husband’s standard of living will also be below that enjoyed by him during the parties’ cohabitation. In the financial circumstances of each of the parties, a drop in their standard of living below that enjoyed by them during the cohabitation is, on this interim basis, to be expected.
The evidence on interim Hearing does not enable me to make a finding as to the extent to which the payment of spousal maintenance by the Husband to the Wife would increase the Wife’s earning capacity by enabling her to undertake any course or courses of education or training or to establish herself in a business or otherwise to obtain an adequate income.[28]
[28] Family Law Act 1975 (Cth) s75(2)(b), (h), (o).
However, any such order for payment of spousal maintenance by the Husband to the Wife would at least maintain, if not increase, her capacity to continue to consult her psychologist, Dr B, and her psychiatrist, Dr F, and so assist her to pursue improvement of her mental health conditions to a state where she is able to expand her ability to engage in appropriate gainful employment and seek more part-time work or engage in full-time employment and so substantially increase her income by increasing her earning capacity .
The Wife asserts in her evidence that she contributed during the parties’ cohabitation to the Husband’s income and earning capacity, an assertion denied by the Husband. On an interim basis I am not able to make any finding in this regard.
The parties cohabited for just short of six years. It is asserted by the Wife in her evidence that family violence perpetrated upon her by the Husband by way of repeated derogatory taunts and financial control caused an exacerbation of her pre-existing depression and anxiety and have affected her earning capacity. The Wife’s assertions of family violence are denied by the Husband. On the basis of all of the evidence before me on interim Hearing I am not able to make a finding in this regard.
These are interim proceedings in relation to the issue of contribution by the Husband to the support of the Wife by way of payment of periodic spousal maintenance (with a lump sum component relating to payments for a period retrospective to any order) and I am not in a position to take into account any order that may be made under section 79 of the Act in the substantive proceedings between the parties for property settlement when considering the issue of spousal maintenance.
I have considered afresh the whole of the evidence before me on this interim Hearing and I do not find that there is any other fact or circumstance that in my opinion the justice of the case requires to be taken into account in exercising the Court’s jurisdiction under section 74 of the Act.
Conclusion
I have found that the Wife is unable to support herself adequately by reason of mental incapacity for appropriate gainful employment with a shortfall of $1160 per week, or $5027 per month. I have had regard to the relevant matters set out in section 75(2) of the Act in relation to the Wife’s need for support.
I have found that the Husband is liable to maintain the Wife and that he is reasonably able to do so to the extent sought by the Wife in the interim Orders set out in her Initiating Application, in that the Husband has an excess of available income over reasonably necessary and unavoidable living expenses of $2,183.45 per week, or $9,462 per month.
Accordingly, I find that it is proper to make an order for the Husband to pay to the Wife the sum of $5027 per month. I find that it is proper to make that order until and including March 2021 on the basis that that is the period of time sought by the Wife in her application and that it is likely that a final Hearing of the property settlement and spousal maintenance proceedings between the parties will take place at about that time.
The Initiating Application was filed by the Wife on 11 April 2019. A Notice of Address for Service was filed by the Husband’s former solicitor on 18 April 2019, indicating that the Wife’s Initiating Application was served on the Husband by at least that date and so I find that the Husband was aware of the interim spousal maintenance orders sought by the Wife by no later than 18 April 2019. The Wife’s Application for an interim spousal maintenance order was opposed by the Husband in his Response and the matter went to an interim Hearing on 12 June 2019.
On that basis, I find that is proper to commence the order that the Husband pay to the Wife a sum of $5027 per month by way of spousal maintenance as and from 18 April 2019, with the payments due for the period between 18 April 2019 and the first payment due on a monthly basis after the making of Orders in consequence of these reasons to be paid by the Husband to the Wife as a lump sum spousal maintenance payment, allowing the Husband a reasonable time to make that payment.
The Application in a Case Filed by the Wife
During the hearing it was asserted by counsel for the Husband that the print of an SMS exchange forming part of exhibit A2 was an exchange between the Wife and Ms G who had provided training to the Wife in an aspect of the personal services industy, and that the exchange evidenced an admission by the Wife that she was, at the time of the SMS exchange, earning “over $1200 weekly”.[29]
[29] Exhibit A2
After the interim Hearing, but still on 12 June 2019, an Application in a Case was filed for the Wife seeking that the interim Hearing be reopened to clarify that evidence. It became unnecessary so to do as an agreement was reached between the parties, that the print of the SMS message exchange in exhibit A2 could not be taken as evidence that the Wife was at any time in receipt of $1,200 per week, there being no evidence of when the exchange occurred or as to who the authors of the messages were.
I note from the clear context of the email sent on 9 September 2018 by Ms G to the Wife that the print of the SMS exchange is almost certainly the “attached ... little testimonial from a student of mine”[30] referred to at the end of the email and not authored by the Wife.
[30] Exhibit A2.
Costs Applications by Both Parties
Each party has sought an order that the other pay the costs of the interim Application.
I have not received any submissions as to why I would depart from the general rule in section 117 of the Act that each party pay his and her own costs and so I will reserve the question of each party’s costs to the final Hearing of the proceedings.
Accordingly I make the Orders as set out at the start of these Reasons.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 21 November 2019
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