Bonney and Bonney
[2005] FMCAfam 546
•12 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BONNEY & BONNEY | [2005] FMCAfam 546 |
| FAMILY LAW – Spousal maintenance – interim or urgent application – nature of application brought pursuant to section 77 of the Family Law Act – whether wife has immediate need of financial assistance – whether wife has failed to establish threshold issue regarding husband’s capacity to provide such financial assistance – what is reasonable in all the circumstances. |
| Family Law Act 1975 – ss.72, 74, 75, 77, 79 |
| Redman and Redman (1987) FLC 91-805 Bevan & Bevan (1995) FLC 92-600 |
| Applicant: | MS BONNEY |
| Respondent: | MR BONNEY |
| File No: | ADM 2575 of 2005 |
| Delivered on: | 12 October 2005 |
| Delivered at: | Darwin |
| Hearing date: | 10 October 2005 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Forde |
| Solicitors for the Applicant: | RJ Cole & Partners |
| Counsel for the Respondent: | Mr Tredrea |
| Solicitors for the Respondent: | Southern Vales Legal |
ORDERS
That until further or other order the husband pay to the wife the sum of $125.00 per week by way of urgent spousal maintenance pursuant to section 77 of the Family Law Act such payment to commence on
6 October 2005 and to be payable weekly thereafter either to a bank account to be nominated by wife or her solicitors or to such other place or in such other manner as the wife or her solicitors may nominate.That the legal representatives for the husband pay the wife’s costs wasted on 5 October 2005 such costs to be fixed in the sum of $380.00.
IT IS NOTED that publication of this judgment under the pseudonym Bonney & Bonney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM 2575 of 2005
| MS BONNEY |
Applicant
And
| MR BONNEY |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceeding is MS BONNEY “the wife”. The respondent in the proceedings is MR BONNEY “the husband”. On 14 July 2005 the wife commenced proceedings in this court seeking orders in respect of the division of the parties’ marital property pursuant to section 79 of the Family Law Act. In brief the wife seeks the transfer to her of the husband’s interest in the parties’ former matrimonial home and the payment to her by the husband of a yet to be determined sum of money. At the same time as her final property application the wife brought an application for interim spousal maintenance to be paid to her by the husband in the sum of $200.00 per week until such time as her principle application for property settlement has been finally determined by the court. The application was said to be brought pursuant to section 77 of the Family Law Act.
The husband responded to this application on 23 September 2005. In his response the husband proposes, in settlement of the wife’s application for property orders, that he pay her a sum of $70,000.00 in exchange for the transfer to him by the wife of two pieces of real property (including the former matrimonial home) currently owned jointly owned by the parties. However in response to the wife’s application for spousal maintenance he seeks the dismissal of her claim. It is his position that he currently does not have the financial capacity to pay her any sum of spousal maintenance at all. He does not dispute that she is currently in straightened financial circumstances. However it is his position that his circumstances are equally dire and he is unable to pay the wife any sum of money whatsoever.
These proceedings are directed to the resolution of this issue of interim spousal maintenance. Section 77 of the Family Law Act reads as follows:
“Where in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practical 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 or other sum as the court considers reasonable.”
As a matter of practice, interim spousal maintenance proceedings are usually heard on the papers. This is because any order made under the section is intended to be reconsidered at some stage in the future, particularly when other proceedings relating to the division of matrimonial property are to be considered. Hence the fact that such an interim spousal maintenance application is limited in its temporal application imports to it different procedural considerations for the court.[1]
[1] See Redman and Redman (1987) FLC 91-805 where the Full Court of the Family Court held that the Court has a greater degree of flexibility in applications for interim maintenance than it has in applications for maintenance intended to last an indefinite period. An application for interim maintenance is intended to be reconsidered.
Orders for spousal maintenance made under section 77 have been described by the Full Court as having:
“…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.” [2]
As a consequence, such applications necessarily invite somewhat “ad hoc” procedures and “a somewhat wider scope or discretion” than is ordinarily the case in applications related to final maintenance orders.
[2] See Chapman and Chapman (1979) FLC 90-671 at p 78,569
Background to the hearing of the applications
The wife’s application first came on for mention before the court on 22 August 2005. The wife had filed the following documents in support of her application:
i)An affidavit deposed by herself filed on 14 July 2005;
ii)A statement of her financial circumstances also filed on 14 July 2005.
The wife has not filed any material in the period since. The husband was represented on 22 August 2005 by his counsel Mr Tredrea but by that stage had not filed any material in response. The matter was dealt with by Federal Magistrate Ryan. Her Honour ordered that the husband file a response, an affidavit in support and a statement of his financial circumstances by 23 September 2005. Her Honour also fixed the wife’s application for interim hearing before the court on 5 October 2005 at 10.00 am. It seems clear that the parties understood that limited time was available for the hearing on that day and that the application would be dealt with in a summary fashion on the papers.
The husband has now filed the following documents:
a)An affidavit deposed by himself filed on 23 September 2005;
b)A statement of his financial circumstances filed on 23 September 2005.
Regrettably neither Mr Tredrea nor the husband appeared before the court on 5 October 2005. The matter was stood in the list after it was first called on. Ms Forde, the wife’s counsel urged me to deal with her client’s application in the husband’s absence on the basis of Ms Bonney’s obvious financial need. I acceded to her request.
I determined that the husband should pay to the wife the sum of $125.00 per week by way of urgent interim spousal maintenance.
I also made procedural orders referring the parties’ competing applications for property settlement to a conciliation conference and directing that they exchange appropriate financial information regarding their views as to the value of jointly owned real property; exchange relevant medical information regarding their respective states of health; and directing that the husband supply appropriate financial information to the wife about a (omitted) business he presently operates. The conciliation conference was fixed for
21 December 2005.
Candidly Mr Tredrea has explained that he made a mistake about the date. It was not the husband’s fault that he did not appear. Mr Tredrea assumes full responsibility for the error. He mistakenly thought that the matter had been listed for hearing the following day. He wasted no time in alerting the court to his error. It was arranged for the matter to be re-listed before me during the morning of
10 October 2005. Mr Tredrea applied to have the interim spousal maintenance order discharged pursuant to the provisions of Rule 16.05 of the Federal Magistrates Court Rules. Ms Forde opposed the application.
I was of the view that the interests of justice dictated that Mr Tredrea’s application should be granted and that the prejudice occasioned to Ms Bonney in having the matter re-heard could be remedied by the making of an order for costs in her favour in respect of the costs wasted on 5 October 2005 and having an expeditious hearing of the matter. With this in mind, it was arranged for the matter to be heard later in the afternoon of 10 October 2005. Mr Tredrea conceded that an order for costs should be made in respect of Ms Forde’s wasted attendance at court on 5 October 2005. He did not agree that an award of costs should be made in respect of Ms Forde’s attendance on the morning of 10 October 2005 when the application to set aside the earlier order was made.
Mr Tredrea did not quibble with the procedural orders made on
5 October 2005. It was his view that, as both parties were experiencing a great deal of financial pressure, it was likely to be in both their best interest for them to attempt to resolve the issues between them regarding the division of their matrimonial property as soon as possible.
General Background
The wife was born on (omitted) 1959. She is currently in receipt of a disability pension in the sum of $290.00 per week. The husband was born on (omitted) 1957. He is self employed and operates a (omitted) business. His level of remuneration is a source of great controversy between the parties. The parties married in Adelaide on (omitted) 1978. It is common ground between them that they separated on 26 November 2003. The marriage between them is not yet dissolved.
When the parties separated, the wife moved out of the parties’ former matrimonial home situated at Property R. She moved to rented accommodation and is presently living in a unit in (omitted). Her rent is $130.00 per week. The husband continued to live in the Property R property, although he is not currently living there. It seems that he has recently moved in with a friend. The circumstances of this move and its financial implications for the husband are also the subject of some controversy between the parties. However neither has filed any specific affidavit evidence in regards to it.
The property is subject to a mortgage in favour of the (omitted) Bank. The required weekly mortgage payments amount to $120.00. The husband has been paying this mortgage since the parties separated. The parties disagree markedly about the value of the property. The range in values suggested by them is between $190,000.00 and $290,000.00 – the wife favouring the higher value. Neither has had it formally valued. However they do agree the mortgage on the property is in the vicinity of $73,000.00.
In 2002 the parties jointly purchased an investment property at
Property F. The parties agree that a sum of $30,000.00 received by the wife in respect of compensation for injuries she received in a fall was used to pay the deposit to secure the property and built improvements on it, although the husband disputes that the entire sum was used in this way. He asserts that the wife used some of the money for her own purposes.
Again the parties markedly disagree about the value of this investment property. The husband contending it is worth $170,000.00. The wife $250,000.00. There is also dispute about the extent of the mortgage on the property. It is somewhere between $115,000.00 and $140,000.00. The required weekly repayments are $194.00. It is common ground that the husband has been paying this mortgage too. The property has been tenanted from time to time for a rent of $180.00. The rent is applied to the mortgage. The property is apparently “negatively geared” for tax purposes. The wife has had no involvement with this property since the parties separated.
The parties are the parents of three children. The two oldest of these children are now adult and self-supporting. The youngest child is X who was born on (omitted) 1989. Considerable controversy surrounds the circumstances of her care and financial support generally in the period since the parties separated. It is clear that X remained living with the husband at the former matrimonial home. However it is common ground between the parties that X has recently left school and has two part-time jobs.
It is a matter of great concern to the wife that X has decided to leave school. She is concerned that X has left school for work because she has had no other means of financial support. It is a strong element of the husband’s case that he has assumed full financial responsibility for X in the period since the parties separated. The wife is not in a position to assert that she herself has provided a great deal of financial support for X as she has been in receipt of a disability pension. However she refutes that the husband’s financial support for X has been as great as he currently asserts, particularly since the husband has moved out of the former matrimonial home.
It seems to be the wife’s position that X has essentially been left to her own devices by the husband and, in the absence of financial support, has been forced into the workforce. The husband denies this and asserts that, in future, he will be responsible for providing X with a recurrent weekly sum of maintenance so she can house herself. He asserts that he has and will continue to pay her at least $70.00 per week. These are issues in respect of which there is little or no affidavit evidence currently before the court. The situation in regards to X seems to be a fluid and developing one.
In 1980 the parties established a (omitted) business. It was operated as a partnership. Mr Bonney did the actual (work omitted). Ms Bonney asserts that she had an active role in the business, keeping its books, dealing with invoices and generally attending to administrative matters. The husband disputes the level of her involvement. The partnership was dissolved following the parties’ separation. The husband has operated the business ever since as a sole trader. It is his position that the receipts from the business are in steady decline. The wife asserts that the business is capable of generating an income of up to $60,000.00 per annum for Mr Bonney. This is the major area of dispute between the parties.
For his part the husband deposes that he draws at best a weekly income of $412.00 from the business or $21,424.00 per annum. He has also indicated that he may receive additional taxation benefits of about $71.00 by way of allowances for business deductions. In support of his contention in this regard he relies on his three most recent income tax assessments for the years ending 30 June 2002; 2003; and 2004; which show a taxable income of $27,965.00; $19,042.00; and $17,287.00 respectively.
The husband asserts that the business has little real value. He puts it at around $4,000.00. The wife does not know but reserves the right to conduct a more rigorous examination of the business receipts, assets and liabilities at a latter stage of the proceedings. She has not as yet had the opportunity to pursue these matters. Basically it is her contention that it is easy for sole self-employed (occupation omitted), like the husband, to paint a dire picture of their financial position, particularly for taxation purposes, when the true position is very different. For obvious reasons she is dubious at the husband’s assertions in regards to his recurrent income.
The parties both have motor vehicles in their possession. The wife has a Hyundai. She asserts it is worth only $500.00. The husband retained possession of a Calais, a car the parties had during their marriage. The parties disagree as to its worth. It is subject to a finance agreement. In addition the husband has retained a Toyota Ute. This seems to relate to the business. Again the parties disagree markedly about the value of this vehicle. Neither has sought to obtain any independent source of valuation such as a second hand dealer’s guide.
The wife asserts that the husband has retained for his own use and benefit the vast preponderance of the parties’ matrimonial property and assets. The husband asserts that the wife has taken all the furniture and contents she has wanted to her new premises. However the husband concedes that he has been able to have the use of the parties’ former matrimonial home. The parties each apparently have superannuation of negligible value.
The wife has no savings. It is her position that her disability pension barely covers her recurrent living expenses and she is forced from time to time to borrow money from friends and relatives to get by. One of her major recurrent expenses is for medication for herself. The husband has a bank account in his name at the (omitted) Bank. It has a credit balance of $19,000.00. However he asserts that $14,000.00 of this sum has been earmarked to pay trade creditors.
As has already been indicated the wife is in receipt of a disability pension. It is her position that she currently suffers from a “major depressive disorder and anxiety, together with permanent damage to my back”. As a result of these injuries she asserts that she is incapable of all forms of paid employment and is likely to remain so for the foreseeable future. Presumably the relevant officials at Centrelink have accepted that she is so disabled by reason of the decision to award her a disability pension.
The husband does not accept that the wife’s condition is either as she states it or as severe as she maintains. He suggests that the wife has exaggerated her back condition and is not suffering from depression but rather an obsessive compulsive disorder. However he does not positively assert that the wife would be able to gain paid employment for herself if she actively sought it. Rather he deposes that he does not know what the true position is. The tone of his affidavit is that he is somewhat sceptical about the wife’s claims in this regard.
The wife is under the care of a psychiatrist, Dr T. It is a considerable weakness of the wife’s case that no expert evidence has been obtained for these proceedings as yet either from him or any other of the wife’s medical advisers in respect of her current medical condition and the implications of it so far as employment is concerned. However I cannot overlook the fact that the wife is aged in her middle forties; seems to have no specific skills to speak of; and has been out of the workforce for many years. As a result she belongs to a significantly disadvantaged section of the community, so far as employment prospects are concerned, even in times of full employment.[3]
[3] See Mitchell & Mitchell (1995) FLC 92-601 at 81,997
The husband also asserts that he has some medical problems relating to his kidneys; back; neck and shoulders. He asserts that he suffers from carpal tunnel syndrome and this has affected his working capacity. Again he has not provided any expert medical evidence in support of his contentions in this regard.
At this stage accordingly there are many issues in dispute between the parties:
·The husband’s weekly income and the income generating capacity of the (omitted) business;
·The position so far as recurrent financial support for X is concerned; Is she self-supporting and likely to remain so;
·The exact value of the parties’ assets, particularly their real property;
·The exact extent of the parties’ respective medical conditions and the implications of those conditions on their capacity to obtain paid employment.
Due to the summary or truncated nature of these proceedings, I am not in a position to make definitive findings of fact about these matters in the absence of cross-examination of the parties and a more thorough examination of the evidence concerned. However I cannot lose sight of the fact that orders made pursuant to the provisions of section 77 have about them something of a stopgap nature because of the urgency or pressing nature of the financial position of one or other of the parties concerned. Accordingly such applications have to be approached with a degree of both expediency and expedition. This is particularly so in circumstances when any maintenance order involved is to be for a finite period. In such cases the court’s discretion can be described as being less fettered, as, at a later stage, anomalies flowing from such a maintenance order can be corrected at final hearing. In this case the further progress of the matter cannot be predicted with any certainty. There will be a conciliation conference fairly soon. Obviously it cannot be guaranteed that the matter will resolve then. If not, the matter is likely to be fixed for final hearing in the second half of 2006.
In addition, in my view, although the application is brought specifically pursuant to the provisions of section 77 of the Family Law Act, I cannot loose sight of the actual provisions of the Act which deal with spousal maintenance. A balance must be struck between those particular provisions and the need to proceed in a summary and expeditious manner, as dictated by the provisions of section 77. The discretion provided by section 77 is a wide one but it is one which must be exercised judicially notwithstanding that it is less confined by reason of the summary nature of the proceedings and the fact that any order made pursuant to the section is to be for a specified period of time and so subject to correction at a later stage.
Legal principles applicable to orders for spousal maintenance
Pursuant to section 74 of the Family Law Act, the court may make such order as it considers proper for the provision of the maintenance of the wife in accordance with the provisions of Part VIII of the Act. In particular section 72 deals with the right of a spouse to maintenance and reads as follows:
“72 A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately 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 reasons 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 sub-section 75(2).”
Section 75(2) lists the matters to be taken into consideration in relation to spousal maintenance. The relevant matters in this case, pursuant to section 75 (2), seem to be as follows: the age and state of health of each of the parties; the income, property and financial resources of each of the parties and their respective capacities to engage in gainful employment; the care and control of a child of the marriage under the age of eighteen years of age; the duration of the marriage and its implications so far as the parties’ earning capacity is concerned; and what is a reasonable standard of living in the circumstances for both parties
Pursuant to section 75(3) of the Act the court is directed to disregard any entitlement of a party to the proceedings to an income tested pension, allowance or benefit.
The Full Court of the Family Court in Bevan & Bevan[4] determined that the approach to be taken in respect of applications for spousal maintenance was a four step process as follows:
1)a threshold finding under section 72;
2)consideration of section 74 and section 75(2);
3)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit;
4)discretion exercised in accordance with the provisions of section 74 with “reasonableness in the circumstances” as the guiding principle.
[4]Bevan & Bevan (1995) FLC 92-600
The wife’s case
It is the wife’s position that her circumstances are such that it is patently clear that she is in urgent financial need. She has no income which the court is entitled to take into account. Her disability pension amounts to $15,080.00 per annum. Her rent takes almost 45% of this sum. On any view she argues that it is clear that the husband has retained the vast majority of the parties’ assets. He occupies the former matrimonial home and controls the investment property.
She points to the fact that on his own admissions the husband’s weekly income from the business and the investment property amounts to $663.00 or $34,476.00 per annum. A sum more than double her annual amount of disability pension. In these circumstances, Ms Forde points to this discrepancy and argues that her client amply fits the provisoes of section 77 and the court should make an ad hoc spousal maintenance order in her favour until at least the conciliation conference has been held.
As has already been indicated Ms Bonney queries the sum of $70.00 per week, which Mr Bonney asserts that he contributes in respect of the maintenance of X. By implication it is her position that this sum is available to be allocated to spousal maintenance. However I am not in a position to resolve this issue definitively at this stage of the proceedings. I do however note that the husband concedes that X has left school and does indeed have two part-time jobs. What her income from these jobs is and what are her financial needs and likely future plans has not been established.
It is also Ms Forde’s submission that the husband’s calculations of his income from the (omitted) business is likely to be fallacious. He asserts he receives a weekly income of $663.00 per week. Of this sum $180.00 per week relates to rent received from the investment property – an annual amount of $9,360.00. The annual expenses on the property amount to $10,764.00 – a shortfall of $1,404.00 or $27.00 per week. Accordingly his weekly expenditure amounts to $464.00 or $24,128.00 per annum. Accordingly it seems that his expenditure is greatly exceeding his assessed income for the last financial year in respect of which he has submitted a tax return. From this Ms Forde argues that the court should be very cautious about how it approaches the husband’s assertions that he is impecunious, particularly in the absence of any definitive valuation or assessment of the (omitted) business.
Finally it is Ms Forde’s submission that the court cannot overlook the fact that the husband has savings available to him. Even if it is accepted that some of these monies have been allocated to business expenses, on the husband’s own evidence, there still remains the sum of $5,000.00 available to him to allocate to spousal maintenance. Accordingly in a case where financial resources are scarce, this is the difference between a tight financial position, so far as the husband is concerned, and one which is in extreme crisis, so far as the wife is concerned.
The husband’s case
The husband, through his counsel Mr Tredrea, concedes that the wife is in immediate need of financial assistance. He also makes the important concession that she is not currently able to support herself adequately financially. However it is his position that the evidence in this case is insufficient for the wife to establish the other necessary threshold issue required under section 72 of the Family Law Act, namely that Mr Bonney has any financial capacity to pay spousal maintenance to Ms Bonney.
Mr Tredrea is somewhat critical of the fact that the parties had been separated for approximately eighteen months before the wife brought her application. By implication he suggests that the wife’s financial situation is not as dire as she would have the court believe it. He is also critical of the fact that the wife has not provided any detailed expert evidence in regards to her physical capacity to gain paid employment. As I have already indicated this is indeed a weakness in the wife’s case. However Mr Tredrea also accepted that the fact the wife is receiving a disability pension is of itself evidence of some physical incapacity to gain work.
However the essential thrust of Mr Tredrea’s submissions is that the evidence is clear that Mr Bonney has a limited income. In particular he points to the most recent assessment of taxable income made in respect of his client which shows an income of $17,287.00 a sum which is not greatly removed from the sum received by the wife. He argues that the wife’s assertion that the business is capable of producing an income of $60,000.00 per annum is based on innuendo only and lacks any credible documentary evidence. Accordingly it is his position that the evidence is clear that, regardless of the sympathy the court may feel for the wife, her case has fallen at the threshold issue and must be dismissed.
Conclusions
The marriage between the parties was a long one. It is clear that the husband has retained the vast majority of the parties’ substantial assets in the period following their separation. The husband concedes that the wife is in a dire financial position. He could hardly do otherwise. Ms Bonney has not worked since the parties separated. She is in receipt of a disability pension. She has no access to other funds. She is living in rented accommodation, the payment for which consumes a substantial proportion of her pension.
In my view the starting point of this application must be section 77 and the fact that this is a summary hearing designed to assess spousal maintenance for a limited period of time in circumstances where it has been found that one party to a marriage is in immediate need of financial assistance. On the facts available to me, I am satisfied that the wife is in need of such immediate financial assistance. Thereafter, given the nature of the hearing before me, which was limited in its scope and interim in its nature, the extent of my discretion is wider than it otherwise would be. I am entitled to proceed with some expedition given the extreme nature of the financial position currently confronting the wife.
I cannot however overlook the reality of the situation. The husband is not in a strong financial position either, albeit that in my view he is in a markedly superior position to that of the wife. He has employment and is in control of all of the parties’ jointly owned assets. He too is in a tight financial position but it seems to me that he has more room to move – in a financial sense – than the wife does. Of particular moment is the fact that he has access to a considerable sum of money in the bank. He has at least $5,000.00. On his own evidence there are question marks over his continued financial obligations to X.
I accept, notwithstanding there has been a considerable delay between the time the parties separated and the current application, that the wife is in urgent need of financial assistance. From these fairly lengthy reasons for judgement it will be apparent that I have not found this to be an easy case to decide, particularly whether it is appropriate for some of those needs to be met in the short term. The hardest cases are often those where the financial resources available to be divided between the parties concerned are scarce but their individual needs are great.
I approach this case on the premise that I am determining it on an interim and urgent basis and in circumstances where there are many areas of factual dispute between the parties, which I cannot resolve in the current proceedings. The conciliation conference has been fixed for 21 December 2005 – some eleven weeks away. The parties have some difficult decisions to make in the mean time, particularly as regards to whether or not the former matrimonial home should be sold. If the case does not resolve then it is likely to be heard in the latter part of 2006. On any view the wife is likely to be entitled to receive a substantial proportion of the marital assets. The marriage was lengthy. The wife worked, too some extent in the business. There were three children. The wife contributed substantial compensation monies which were used to acquire the investment property.
In the likely time frame available to the court to finalise the matter, it seems apparent that the case will be determined within a period of about a year, unless there is some unforeseen circumstance. As I originally assessed the husband’s liability to pay spousal maintenance – in a sum of $125.00 per week – if the case was finalised within a year, he would have a liability to pay the wife the sum of $6,500.00 in total. A sum which is greatly outweighed by the parties’ current net worth and a sum far less than the wife is likely to receive on the final disposition of the matter. Accordingly there exists the potential for the court to address any errors or injustices which my flow from such an award.
Nor in my view can it be said that the husband has no capacity to pay such a sum. He has a sum of at least $5,000.00 in the bank. The wife has no funds whatsoever. Accordingly, in the context of an application pursuant to section 77, I do not think the wife has failed to establish the necessary threshold issue that the husband has some financial capacity to provide spousal maintenance to her. I find that he does have such a capacity.
Section 74 of the Act authorises me to make whatever order for spousal maintenance that I think proper. I am satisfied that the wife is presently precluded from earning an income for herself. I accept that the evidence in regards to her health is inadequate. However she is in receipt of a disability pension. She is aged in her mid forties and has no particular skills to speak off. These matters indicate a likelihood that she will find it difficult to find gainful employment in the future. She was involved in the marriage between the parties for very many years.
In my view, in all the circumstances of this case, it is reasonable for there to be an award of some spousal maintenance. I reach this conclusion because there is a discrepancy in the income earning capacities of the parties – the husband has a trade, the wife does not; the husband has retained the vast majority of the parties’ assets; the wife’s financial position is dire and she has no savings. I accept that she lives from hand to mouth.
The award of spousal maintenance will be until further order and as such will remain in place only until the parties’ competing applications for final property orders are heard – an event likely to be about a year away. If there is an error in the award of spousal maintenance or a true examination of the evidence shows it to have been overly generous, the award may be corrected. The parties have ample assets to allow such a correction. In all these circumstances, it is not reasonable for the wife to live in comparative poverty to the husband. He may not be wealthy but his position is more comfortable than that of the wife. As a result of the consideration of all these matters and given the urgency of the wife’s situation, I have come to the conclusion that it is not appropriate for me to revisit the award of spousal maintenance I made in the absence of the husband on 5 October 2005. I do not propose to change the order for urgent spousal maintenance that was made on that occasion.
I have also determined that the legal representatives of the husband should pay the wife’s costs wasted on 5 October 2005 by reason of their non appearance to be fixed in the sum of $380.00. I have calculated this sum by reference to the schedule of costs set out in the Federal Magistrates Court Rules. Ms Forde was engaged in court for a period of approximately an hour and a half. There should be no other order as to costs.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 12 October 2005
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