BOND & DALTON

[2020] FCCA 2177

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOND & DALTON [2020] FCCA 2177

Catchwords:
FAMILY LAW – Spousal maintenance – where the Applicant seeks urgent spousal maintenance – where the Respondent contends that the Applicant’s application is in fact an application for interim spousal maintenance – where the Applicant makes an oral application during the hearing for interim spousal maintenance – Applicant’s application for urgent spousal maintenance dismissed – oral application for interim spousal maintenance listed for face to face hearing to include cross-examination.

Legislation:

Family Law Act 1975 (Cth), ss.74, 77, 90SE, 90SG.

Cases cited:

Chapman and Chapman .

Gyopar and Gyopar (1986) FLC 91-769

Hall & Hall (2016) 257 CLR 490

Applicant: MR BOND

Respondent: MS DALTON

File Number: ADC 5490 of 2019

Judgment of: Judge Kari

Hearing date: 28 July 2020

Date of Last Submission: 28 July 2020

Delivered at: Adelaide

Delivered on: 7 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Cocks

Solicitors for the Applicant: Jacqui Ion Lawyers Pty Ltd

Counsel for the Respondent: Ms Pyke QC

Solicitors for the Respondent: Diane Myers Family Lawyers

ORDERS

1. That the Applicant’s application for urgent maintenance be dismissed.

2. That the Applicant’s oral application for interim maintenance be listed for hearing (with the same to proceed as a face-to-face hearing and to include oral evidence) on 2 September 2020 at 2.15 pm (half day allowed).

3. That within 7 days the Applicant do file and serve an Amended Initiating Application setting out the specific orders she seeks with respect to interim maintenance.

4. That no later than 4.00 pm on 21 August 2020 each party be at liberty to file and serve an amended Financial Statement.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5490 of 2019

MR BOND

Applicant

And

MS DALTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These interim proceedings arise as a consequence of an application for urgent maintenance by the de facto wife.

2. The de facto husband opposes the application and asserts that the application is fundamentally flawed as it is not, and never has been, an application for urgent maintenance. Rather, he asserts that the application is really an application for interim maintenance, which is an application that the de facto wife has not made, and was only made orally during the course of the present hearing in response to the criticisms made during submissions on behalf of the de facto husband.

Background

1. The brief background of the parties and their relationship is as follows:

   a)The de facto husband was born 1976 and he is 43 years of age.

   b)The de facto wife was born 1982 and she is 38 years of age.

   c)The parties began living together in a de facto relationship on 10 December 2009.

   d)There are two children of the relationship namely X born 2011, who is 8 and a half years of age, and Y born 2015, who is 4 and a half years of age.

   e)There is some conjecture between the parties as to when they actually separated.  The de facto wife asserts that separation took place on 16 December 2017, whereas the de facto husband asserts that separation took place on 11 May 2017, there having been a brief period of separation between 2 to 13 November 2016.

   f)There appears to be no dispute between the parties that from approximately December 2017 the children have lived and continue to live between the parties in a shared care arrangement, whereby they spend eight nights per fortnight with the de facto wife and six nights per fortnight with the de facto husband.

The Litigation

1. So far as the litigation is concerned, there are only financial issues before the Court. From that I would have to infer that the parties are content with the parenting arrangements and that they each anticipate that they will continue in the long term.

2. The de facto wife commenced proceedings when she filed an Initiating Application on 13 December 2019. She did so just prior to the expiration of the two year time limitation period provided for in s 44(5) of the Family Law Act 1975 (Cth) “in order to preserve the position in respect of the property settlement”[1] and hopeful that the parties would ultimately “be able to resolve matters without the involvement”[2] of the Court.

   [1] Applicant’s Affidavit filed 13 December 2019, paragraph 2.

   [2] Ibid paragraph 3.

3. In her Initiating Application, the de facto wife sought various interim orders, including the order for urgent maintenance which is the focus of the present proceedings as follows:

   That the Respondent do pay to the Applicant by way of urgent spousal maintenance the sum of $1,800 per week.

4. When the proceedings first came before a Registrar of the Court in the discrete property list on 17 February 2020 a raft of orders were made by consent to progress the matter towards a mediation.[3] The Registrar was invited and indeed also made an order to thereafter list the matter for mention before a Registrar on 26 May 2020.

   [3] The “discrete property list” sees the first hearing of proceedings dealing solely with financial issues coming before a Registrar of the Court as against a listing before the docket Judge.

5. When the matter came before the Registrar on 26 May 2020, a request was made of my chambers for an argument date to be provided. Rather than have the matter dealt with by the Registrar on that occasion, I heard the matter briefly and made orders listing the matter for a contested hearing (1 hour allowed) on 24 June 2020. In addition, orders were made at the applicant de facto wife’s behest to allow her to file an Amended Application for interim orders, a further Affidavit and an Amended Financial Statement if required. Similarly, orders were made allowing the respondent de facto husband to file further documents if required.

6. On 24 June 2020, unfortunately due to pressing parenting proceedings before the Court that day, the intended argument was unable to proceed. A new date for argument on 28 July 2020 was allocated and indeed the argument proceeded that day.

7. Since the filing of her Initiating Application on 13 December 2019, the de facto wife has filed two amended Initiating Applications. The first was filed on 3 June 2020, some three weeks prior to the intended interim hearing, and the second was filed on 22 July 2020, a mere six days prior to the rescheduled hearing.

8. Importantly so far as the application for urgent maintenance is concerned:

   a)The first amendment made on 3 June 2020 was to reduce the amount sought by way of urgent maintenance from $1,800 per week to $656 per week; and

   b)The second amendment made on 22 July 2020 was to increase the amount sought by way of urgent maintenance from $656 per week to $759.50 per week.

9. Throughout all incarnations of the maintenance application, the de facto wife has always asked the Court to make the orders for maintenance on an “urgent” basis. At no stage in any of the versions of her applications before the Court has the de facto wife ever sought either an order for interim maintenance, or an order for maintenance on a final basis.

10. When the matter came before the Court for argument on 28 July 2020, counsel for the de facto husband took umbrage as to whether the Court even had jurisdiction to hear the application for urgent maintenance in circumstances where there are no other maintenance proceedings before the Court.

11. Faced with this objection, I heard submissions on behalf of the de facto wife and ultimately indicated that I would accept the oral application that was made in response to the criticism to have the matter listed separately for consideration of the de facto wife’s oral application for interim maintenance. Ultimately, the de facto husband did not take objection to that path, particularly as it became clear that this was an oversight on the part of the de facto wife’s legal representatives and not of the de facto wife’s making.

12. Be that as it may, the hearing proceeded on the basis of the de facto wife’s application for urgent maintenance as that was the application the de facto husband had come to court to meet given the litigation history that I have just surmised.

The Law

1. The source of power to make an order for urgent maintenance where parties have been in a de facto relationship is found in s 90SG of the Family Law Act 1975 (Cth) (“the Act”) which provides:

   If, in proceedings with respect to the maintenance of a party to a de facto relationship in accordance with this Divisions, it appears to the court that:

   (a)The party is in immediate need of financial assistance; and

   (b)It is not practicable in the circumstances to determine immediately what order, if any, should be made;

   The court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.

2. The power in s 90SG mirrors the provisions that apply to urgent spousal maintenance applications for parties to a marriage found in s 77. Accordingly, it is relevant to consider the relevant authorities that relate to spousal maintenance pursuant to s 77 and s 74 (s 90SG and s 90SE respectively for a de facto relationship).

3. By its nature the discretion to make an order for urgent maintenance requires different considerations to those to be made if the application was made pursuant to s 74 or s 90SE, which would require a more fulsome enquiry.

4. Having said that, the exercise of discretion to make an order for the provision of urgent maintenance, as identified by the Full Court in Gyopar and Gyopar (1986) FLC 91-769 at [75-610]:

   … is to be read in conjunction with sec. 72. Section 77 is not intended to entitle a spouse to maintenance in circumstances where a spouse does not establish a right to maintenance pursuant to sec. 72. None of the reported authorities considering sec. 77 suggest to the contrary. See Malcolm and Malcolm ; Rouse (unreported F.C. Melb. 31.8.78); Williamson and Williamson ; Chapman and Chapman .

   It follows that a spouse (usually a wife) is not entitled to urgent maintenance unless she establishes that she is in immediate need of financial assistance because she is unable to support herself adequately by reason of a circumstance provided for in sec. 72.

5. In addition, the authorities establish that orders for urgent maintenance should be made for a relatively short duration, and are stop gap orders until such time that there can be a more fulsome enquiry. In Chapman & Chapman (1979) FLC 90-671, the Full Court discussed the nature of applications for urgent maintenance at [78-569] as follows:

   I think it must be clearly understood that sec. 77 applications have particular characteristics about them: they are intended to deal with urgent situations; they are normally relevant for a defined or definable period of time; and they are in the nature of stop-gap orders. That of course does not mean they have to be bread-line orders. What the appropriate quantum is depends on the particular circumstances of each case and the financial background and history of the parties.

6. The approach to be taken when considering spousal maintenance applications has been considered by the High Court in Hall & Hall (2016) 257 CLR 490 in the following terms:

   3.…The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That subsection 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, the 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 crystallised by the making of an order under s 74(1). That subsection 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 (s 75(1)). 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 requirement 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 the relevant matters referred to in s 75(2).

   (Footnotes omitted)

Discussion

1. In the present proceedings, I am told by the de facto husband’s counsel that there is a very real dispute firstly as to whether or not the de facto wife has a “need” for maintenance and secondly whether or not the de facto husband has any capacity to pay an order for maintenance. Moreover, the de facto husband asserts that there is no urgency to the application as the de facto wife has been able to support herself over the considerable post-separation period. That is to say, all issues that require consideration are contested between the parties.

2. At first glance, it would appear that the de facto wife may have some need for maintenance given:

   a)She deposes to her income being limited to Centrelink entitlements and child support, the former being an amount that I am required to exclude from consideration; and

   b)She deposes to being unable to find employment in recent times despite numerous applications.

3. The de facto husband however asserts that the Court cannot be satisfied about the wife’s assertions in that regard and in the absence of cross-examination of her in circumstances where:

   a)He does not accept the de facto wife’s assertions that she is not deriving income from her own exertions in her business known as A Pty Ltd, given the de facto wife has failed to supply to the de facto husband primary source documents by way of discovery (despite repeated requests to do so) to satisfy his questions in that regard;

   b)He asserts that some of the de facto wife’s personal expenses are met from her business and are not paid personally by her making it impossible for the Court to decipher the quantum of her need if any; and

   c)He does not accept that the de facto wife has been genuine in her efforts to find alternate employment.

4. In addition, and so far as the de facto husband’s capacity to meet any order for the payment of maintenance, it would appear at first glance of his Financial Statement that he has no such capacity given his expenses of $4,287 per week exceeds his weekly income of $4,244.

5. The de facto wife however does not accept these assertions on the de facto husband’s part, and to that end:

   a)Almost 5 pages of her Affidavit filed 22 July 2020 was devoted to an intricate dissection of the de facto husband’s asserted income and expenditure which was more akin to the submissions that might be made after cross-examination of the de facto husband, rather than admissible evidence on the de facto wife’s part; and

   b)The submissions made on behalf of the de facto wife during the course of the hearing were implicitly on the basis that the Court accept the wife’s analysis and dissection in the absence of cross-examination.

6. What became obvious during the course of the hearing was that the de facto wife was attempting to deal with the matter by pursuing the more fulsome enquiry and analysis that would be required if the hearing was dealt with on the basis of an interim application for maintenance.

7. Indeed that submission was put on behalf of the de facto husband, and it has some significant force.

8. In addition, the de facto husband submitted that given the way the current application has come before the Court, it is not and never has been an application for urgent maintenance, taking into account in particular that:

   a)The parties have been separated for at minimum over 2 and a half years;

   b)The de facto wife only filed proceedings to preserve her ability to bring a claim and not because she deposed to any grounds of urgency with respect to her maintenance application;

   c)The de facto wife was content at the first return hearing to divert the proceedings to mediation, thus at least at that stage it might be observed that she abandoned the urgency of her application for maintenance.

9. In addition, the de facto husband asserts that when considering the wife’s material filed from the inception of these proceedings and in particular her two Financial Statements (the first filed 13 December 2019 and the second filed 3 June 2020), the de facto wife has not come before the court in a fulsome and frank fashion, and in particular:

   a)In her first Financial Statement the de facto wife deposes that her income is in the amount of $883 per week and her expenses are in the amount of $2,676 per week, a deficit of almost $1,800 per week;

   b)In her second Financial Statement the de facto wife deposes that her income is in the amount of $1,169 each week and her expenses are $1,825 per week, a deficit of $656 each week;

   c)In both documents the de facto wife deposes that each of her parents are meeting her weekly expenses in the amount of $115 per week for her father and $86 per week for her mother (a combined total of $201 per week), which are amounts insufficient to meet the totality of the de facto wife’s asserted weekly shortfall with reference to either of her financial statements;

   d)However, if regard is had to the de facto wife’s liabilities  between her first and second financial statement, there is no commensurate increase to her liabilities to account for the shortfall in her asserted expenditure, and in particular her credit card liabilities have changed insignificantly between each document, and other than a current liability for legal fees in the amount of $31,675, the de facto wife’s liabilities have only increased with reference to a loan to her father (which is the subject of dispute), but which the wife asserts was taken out in 2011 in the amount of $120,000 as asserted in her first Financial Statement, which has now grown to a balance of $156,550 in her second Financial Statement with no further explanation as to the increased amount.

10. Again a preliminary consideration of these arguments raised on behalf of the de facto husband would suggest that there is some force to the submission and there is a need to consider the application for maintenance in a more fulsome way; including cross-examination of both parties.

11. While I might assume that the de facto wife is presently only able to make ends meet with the assistance of her parents, it is not appropriate for me to make those assumptions in the absence of cogent evidence from the de facto wife. Moreover, where the de facto husband asserts that the de facto wife is deriving an income from her own exertions, given all of the matters to which I have already referred it is impossible for me to rule out the possibility that the wife is indeed meeting some of her expenses (whatever they might be) from income derived from her own exertions.

1. In addition, and while I accept that the generosity of the de facto wife’s parents is not one that displaces the obligation of the de facto husband to support the de facto wife if he is in a position to do so (something which I am unclear about at this juncture), it cannot be said that the wife has made out any basis for urgency requiring me to deal with the matter effectively summarily in an urgent hearing.

2. For all of these reasons, I decline to deal with the matter on an urgent basis and instead I propose to list the matter for a more fulsome enquiry at an interim hearing, which is to include oral evidence.

3. I accordingly now make those orders that appear at the commencement of these reasons.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Judge Kari

Associate: 

Date: 7 August 2020