Boulton & Boulton

[2021] FamCA 155

FAMILY COURT OF AUSTRALIA

Boulton & Boulton [2021] FamCA 155

File number(s):	SYC 1491 of 2021
Judgment of:	REES J
Date of judgment:	25 March 2021
Catchwords:	FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Competing applications as to the quantum of spousal maintenance to be paid to the wife – Where the court finds the wife has reasonable expenses – Where the court finds the husband has significant excess of income over expenditure – Orders for wife to receive periodic and lump sum spousal maintenance.
Number of paragraphs:	26
Date of hearing:	22 March 2021
Place:	Sydney
Counsel for the Applicant:	Mr Richardson SC
Solicitor for the Applicant:	Pearson Emerson Family Lawyers
Counsel for the Respondent:	Mr Kearney SC
Solicitor for the Respondent:	Broun Abrahams Burreket

ORDERS

SYC 1491 of 2021

BETWEEN:

MS BOULTON

Applicant

AND:

MR BOULTON
Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	25 MARCH 2021

THE COURT ORDERS:

1.That the husband forthwith pay to the wife, by way of lump sum spousal maintenance, the sum of $3,657.

2.That the husband pay, by way on interim spousal maintenance, the sum of $1,375 per week, in addition to the payments which the husband will make pursuant to the orders made 22 March 2021.

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

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

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

REASONS FOR JUDGMENT

Rees J:

1. Ms Boulton (“the wife”) and Mr Boulton (“the husband”) commenced proceedings relating to parenting and financial matters on 4 March 2021.

2. The wife sought a suite of interim orders, all of which, except for spousal maintenance, were able to be resolved.

3. The interim consent orders made on 22 March 2021 provided, relevantly, for the children to live with the wife in the former matrimonial home at Suburb B, for the husband to leave the home and have day only, professionally supervised time with the children.

4. The orders provided that the parties sell two investment properties at Suburb C and Suburb D and from the net proceeds of sale pay any costs still outstanding in relation to the renovation of Suburb B; the husband’s tax liabilities including BAS and income tax and $100,000 to each of the husband and the wife. The balance of the proceeds are to be held in a controlled money account.

5. Pending further order, the husband is to pay:

   ·The mortgage, rates and insurance on Suburb B.

   ·The mortgage, rates, insurance and land tax on a unit at Suburb F where the husband will live.

   ·Private health insurance for the wife.

   ·Insurance and registration on the car driven by the wife.

6. The wife seeks spousal maintenance in two forms – a lump sum of $3,657 to cover specified expenses and periodic maintenance of $1,475 per week.

7. The husband concedes that the wife is unable to support herself but it is his position that he cannot afford to pay the amount the wife seeks.

8. There were a number of challenges to the wife’s expenses, specifically her claim to spend $100 per week on house repairs when the house is newly renovated; her claim for medical expenses which, it was suggested, must include, in part, her claim for lump sum maintenance which covers glasses and dental work; her claim for holidays which it was suggested are not likely to occur; her claim for cleaning which is a little less than the amount that the husband concedes was spent when he lived in the house and a claim of $232 for gym membership, pilates and barre which, it was submitted, should have been itemised.

9. The husband, in his affidavit sworn 18 March 2021, itemised the expenses of the household which included him and the children, as well as the wife.

10. The husband conceded that the cost of the wife’s counselling was $165 per week which suggests that her claim of $155 per week is reasonable.

11. They spent $660 per week on cleaning and pool maintenance. The wife claims $150 per week as referable to herself out of a total of $485.

12. The husband gave no evidence about the amount spent on family holidays while the family was intact. However, I do not regard the wife’s claim of $190 per week to be unreasonable.

13. The wife’s claim to expenditure of $232 per week on fitness does not fail because it was not itemised.

14. Overall, I regard the wife’s claimed expenses, other than the claim for house repairs, as reasonable and I assess her need to be $1,375 per week.

15. The husband’s stated income of $13,711 per week is, I understand, accepted. However, his claimed expenses are not.

16. The husband’s tax, estimated to be $6,451, will be paid from the sale proceeds of property and is not required to be paid from his weekly income.

17. The costs of holding the Suburb C and Suburb D properties will be expunged on sale.

18. The husband will no longer be required to pay the outgoings on the properties at Suburb D and Suburb C. The mortgage payments on Suburb B are $2,769 and on Suburb F $590. The  rates and insurance for Suburb B are $168. The rates and utilities for Suburb F are $174. In addition the husband will pay income insurance, private health insurance and life insurance totalling $321.

19. I assess the husband’s fixed expenses to be:

    ·Superannuation  $493

    ·Mortgage payments  $3,359

    ·Rates, insurance and Suburb F utilities  $342

    ·Insurance  $321

    ·Total  $4,515

20. I have not allowed the husband’s claim for credit card repayments which is a double counting as the expenses are either for fixed expenses or for Part N expenses and both are already taken into account.

21. The husband claims to pay $4,142 per week for the children’s expenses. Although there is some criticism on behalf of the wife because the husband gives no undertaking to continue to pay those expenses, for the purpose of assessing his ability to pay spousal maintenance, they will be included. The husband will also have to pay the costs of professional supervision and, for more abundant caution, I will allow those costs at $1,000 per week.

22. I therefore assess the husband’s fixed expenses to be $9,657. He claims Part N expenses for himself of $109 per week.

23. If I am in error in those calculations, then I note that the husband, in his Financial Statement claims income of $13,711 per week and expenditure, excluding only tax, of $11,377 leaving income of $2,334 to meet any spousal maintenance order.

24. The husband clearly has a significant excess of income over expenditure and I do not accept that he has demonstrated that he is unable to pay periodic spousal maintenance as claimed by the wife.

25. As to the lump sum claim, that is made up of the cost of a new tyre for the wife’s car ($707); replacing the wife’s lost reading glasses ($600) and necessary dental work ($2,350). I accept that those expenses are reasonable and necessary and the husband can clearly afford to pay them.

26. The orders will provide for the husband to pay lump sum spousal maintenance of $3,657 and interim periodic spousal maintenance of $1,375 per week.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       25 March 2021