BOWDEN & ALEBHIM
[2012] FamCA 318
•4 May 2012
FAMILY COURT OF AUSTRALIA
| BOWDEN & ALEBHIM | [2012] FamCA 318 |
| FAMILY LAW – PRACTICE AND PROCEDURE - Section 82 application after periodic order expired - Section 44(3) application where facts insufficient. |
| Acts Interpretation Act 1901 (Cth) Family Law Act 1975 (Cth) |
| Aguilar &Aguilar [2009] FamCA 1343 Caska & Caska [2001] FamCA 1279 Collins & Collins (1993) FLC 92-343 Hedley and Hedley [2009] FamCAFC 179; (2009) FLC 93-413 Sharp and Sharp [2011] FamCAFC 150 Whitford and Whitford (2979) FLC 90-612 |
| APPLICANT: | Ms Bowden |
| RESPONDENT: | Mr Alebhim |
| FILE NUMBER: | MLC | 8231 | of | 2007 |
| DATE DELIVERED: | 4 May 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 1 May 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Davis |
| SOLICITOR FOR THE APPLICANT: | Robinson Gill |
| COUNSEL FOR THE RESPONDENT: | Mr Werner |
| SOLICITOR FOR THE RESPONDENT: | Kenna Teasdale Lawyers |
Orders
That the application of the wife filed 11 April 2012 (seeking interim or procedural orders) and the response thereto filed by the husband on 1 May 2012 (as to interim orders) are adjourned for a one day hearing before me on 12 July 2012 at 10.00am subject to any part-heard case that day.
That the application of the wife for urgent spousal maintenance this day is dismissed.
That the husband do all acts and things necessary to authorise his accountant to speak to and make available to the solicitor for the wife such information as may be required by her about his current financial position.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowden & Alebhim has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8231 of 2007
| Ms Bowden |
Applicant
And
| Mr Alebhim |
Respondent
REASONS FOR JUDGMENT
In this urgent interim spousal maintenance hearing, counsel for the applicant wife described the husband’s approach to the wife’s claim as callous. If all of the facts asserted by the wife are true, she has significant physical, emotional and financial difficulties. That situation however, does not permit a court to go outside its powers and make orders beyond its jurisdiction. In this case, it is not appropriate to make the orders immediately sought by the wife. That is not to say that on a proper hearing, the wife’s difficulty will continue.
This is an urgent application under s 77 of the Family Law Act 1975 (Cth) (“the Act”) by the wife for $2000 per calendar month for the next two months. It was described by her counsel in opening her case as a variation of orders made on 11 May 2009 by this Court.
The husband sought that the wife’s application be dismissed.
The husband served unsealed copies of his documents upon which he intended to rely on, the previous day to the hearing. They revealed the husband’s assertion of not only impecuniousity but also impending bankruptcy. The wife is sceptical about all of that but both sides agree that discovery needs to take place. It was suggested that two months would be needed. The husband’s position was that the wife’s solicitor (but not the wife), could attend upon his accountant to undertake that task. With some reservation about that because the wife is a litigant who could be self-represented if she so chose, I intend to make the order. This matter otherwise needs at least a brief contested hearing.
The husband and wife had married in 1986 and had two adult sons. Separation occurred in 2005 and on 11 May 2009, the Court made final property orders as well as spousal maintenance orders at the request of and consent of, both parties who were then represented by lawyers.
An important provision in that order read:
That the husband pay to the wife into (a bank account) the following money on account of final maintenance to the wife:
(a)from 15 May 2009 until 15 April 2010 the sum of $41,604.00 payable by twelve instalments of $3,467.00 on the 15th day of each calendar month;
(b)from 15 May 2010 until 15 April 2011 the sum of $31,200.00 payable by twelve instalments of $2,600.00 on the 15th day of each calendar month;
(c)from 15 May 2011 until 15 April 2012 the sum of $26,000.00 payable by twelve instalments of $2,167.00 on the 15th day of each calendar month.
It was common ground and for which the husband was given credit by the wife, he has met all of those obligations.
On 15 April 2012, the wife’s solicitor wrote to the husband requesting that because of the wife’s inability to resume full-time employment, he consider providing her with “further financial assistance”. The husband did not respond.
On 11 April 2012, the wife filed her application. She sought a number of orders but the significant claim was for $2,167 per calendar month. Underpinning that claim, the wife said the Court had power to make the order based on s 83(1) of the Act which provides that if there is in force an order with respect to the maintenance of a party to the marriage, relevantly, the Court may vary it so as to increase or decrease any amount ordered to be paid provided that the requirements of s 82(2) are first met. The relevant words are “in force”.
In the alternative, the wife argued that she could rely on s 44(3) of the Act which provides that an application to commence a claim for spousal maintenance cannot be made except by leave of the court more than 12 months after the expiration of a divorce taking effect and if such an application is made, the court must not grant leave unless it is satisfied:
(a)that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
(b)at the end of the period within which the proceedings could have been instituted without leave, the circumstances of the applicant were such that she would have been unable to support herself without an income-tested pension, allowance or benefit.
Section 44(3) is relevant here because the revival or variation of spousal maintenance is excluded from its operation. If as I shall find, there is no power for the Court to exercise a discretion and vary the orders made in 2009 under s 83(1) because the order is no longer in force, the provisions of s 44(3) become important.
Section 44(3) and specifically s 44(4) do not assist the wife in this case because there is not sufficient evidence on the untested material that would enable me to give the wife leave to commence the spousal maintenance claim and in turn, apply for urgent maintenance under s 77 of the Act.
For the sake of completeness, it should also be said that the wife applied under s 66G for maintenance of $300 per week for the older of the parties’ two children who is now 24 years of age. Leave is not needed for that application but that provision relates to the Court’s power generally. The application is in fact made under s 66L and that requires the Court to be satisfied that maintenance is necessary because of the child’s mental or physical disability.
On the disputed evidence before me, I could not make any finding about those matters such that I could find that a child maintenance order is proper (see s 66G).
The facts relied upon for the purposes of this application by the wife were that when she entered into the original arrangement for maintenance, she considered it was likely that she would be fully employed by the expiration of the payment period. She said that she was also confident that the eldest child would mature and deal with his drug dependency and mental health issues during that time. She said she hoped to use the settlement monies for the child’s rehabilitation and she felt positive about his commitment. Her optimism was misplaced because she said the child had regressed and resisted both rehabilitation and treatment. She said he was becoming increasingly unstable and more dependent upon her emotional and financial support.
In respect of her own development, the wife said that she had undertaken training in computers and fashion as well as hairdressing but the son’s health and her own, as well as other factors, had affected her ability to work other than for sporadic and limited periods. She did not specify what these other factors were. She mentioned that she had worked casually for friends and she estimated that her income for the financial year ended 30 June 2011 would be less that $10,000.
In detail, she set out her problems associated with the adult son. She said she was unable to return to full-time employment giving reasons such as that she was experiencing sleepless nights and being subjected to violent behaviour from the son. She said he was suicidal and had threatened her if she were to abandon him. She said that he behaved in an erratic and unpredictable manner. To support her contention in relation to her son’s health, the wife attached to her affidavit medical reports from the earlier proceedings. I am not convinced that I could conclude anything at this stage from that medical report material having regard to its age.
The extent of the wife’s financial position and the impact upon her capacity to work as a result of the problems of the elder son are not at all clear. That is particularly important in situations in which the husband disputes what the wife says. I shall turn to his evidence below.
The wife’s major expense is asserted to be food but a large component of that appears to be for the two adult sons each of whom weighs more that 130 kilograms. The husband’s position was simply that the wife was pandering to the sons and exacerbating the problem.
In relation to the money received from the property settlement in 2009, the wife said that she had dissipated all but $20,000. It was said by her counsel that she still had $20,000 and was living on that. Some criticism was made of the wife for having failed to explain what had happened to all of the property settlement money having regard to the time that had elapsed. Although there was strong criticism of the husband for his adopting that position made by counsel for the wife, there is certainly no comprehensive explanation as to what happened to that money such that it put the wife into the impecunious position that she now has. In his affidavit in reply, the husband said that the wife had sent him text messages indicating that she was working and as such, I could not accept that the wife’s financial position was as dire as she made it.
The husband’s evidence was that the wife had been warned in 2009 about the difficulties she faced if she brought a further application for maintenance. He said that the wife had failed to explain how their son’s alleged health and drug additions had prevented her from working full-time. To some extent, this is where the callousness comes into play. The husband himself has an intervention order against his son. It may be open at a contested hearing to determine whether the husband seriously disputes the state of his son’s health. However in respect of the evidence before me, that is exactly what his position remains.
The husband’s evidence pointed to some cryptic text messages sent to him and they appear to be the foundation for his scepticism.
In his evidence, the husband said that to the best of his knowledge, the son smoked marijuana and did not work because that was his choice. He seemed oblivious as to any issue of the son harming himself.
The husband also complained that he had received no proof of details about the wife’s attempts to obtain employment and a he made very vague statement that on what the applicant had communicated to him, she took casual work for cash. He said he did not know what her explanation was for ceasing the employment that she had and that in his view, she was capable of finding employment. That indicates a clear dispute between the parties as to the wife’s capacity. The wife’s position seems to be that her capacity is limited by virtue of her responsibilities towards the son but the evidence as to how that impacts upon her capacity remains unstated. The husband makes no concession in respect of that issue.
In the husband’s view, the wife indulges the son.
Finally, the husband’s evidence was directed towards his own capacity to pay. That only becomes relevant if I am satisfied that there is a jurisdictional base upon which I could make an order and in this case I am not.
Section 77 of the Act permits a court can upon finding that a party is in immediate need of financial assistance and where that it is impracticable for the court to work out the finer details, make an order for the payment of maintenance pending the disposal of the proceedings. There can be no maintenance application however unless either of s 83 or s 44 are satisfied.
Counsel for the wife submitted that the wife was not caught by the provisions of s 44(3). That depends upon whether or not she can claim under s 83. He went on to submit that whichever way the case was examined, the wife was in need of basic financial support. It was submitted that if the maintenance was not continued, the wife would face a hardship because the husband had continued to provide her support since May 2009.
In a very succinct submission, counsel for the husband made five points if the Court accepted that there was no power under s 83 to make an order. Those five points were:
(a)There was no justification for the Court making a finding of hardship as required by s 44(4) albeit that such a finding might be made at trial;
(b)The wife still had the $20,000 in the bank and on the basis of what her expressed financial need was, that was nine months of support;
(c)To the extent that the wife might be successful at trial, retrospective orders could rectify any unfairness;
(d)An interim order pre-empted the final order because the wife would have no ability to repay any money that the husband might overpay on her own evidence; and
(e)In any event, there was no basis to make a finding that the husband could make any contribution by way of maintenance.
I have already set out above the s 83 provision. It is fundamental that there must be an order in force with respect to maintenance. In discussion, there was some debate about when an order was no longer in force in circumstances where the last payment had been made but the relevant period might be seen as prospective.
The Acts Interpretation Act 1901 (Cth) provision s 15AB(1)(a) allows for the use of extrinsic material to confirm the ordinary meaning conveyed by the text of the provision and to take into account its context in the Act. The dictionary meaning of “in force” is variously: “in effect, operative, binding” (Black’s Law Dictionary, 9th ed, 2009); “law operative, binding, valid” (Shorter Oxford English Dictionary, 6th ed, 2007); and “binding power, as of an agreement” (Macquarie Dictionary, 5th ed , 2009).
As a matter of statutory interpretation, words should be given their ordinary meaning where possible.
The Court is also entitled to look at the surrounding provisions for assistance and in this case, s 81 relates to the duty of the court to end financial relations between the parties (the “clean break” principle - see Aguilar &Aguilar [2009] FamCA 1343). The husband drew to my attention in his evidence that when making the final orders in 2009, I made reference to the difficulties the wife would have if she sought to bring another application for maintenance. That was a statement made because of the clean break principle.
However, in my view, s 83 can be interpreted upon its ordinary meaning. Under s 83 where a spousal maintenance order is “in force”, the Court has the discretion to “discharge”, “suspend”, “revive” or “vary” orders. All of these words suggest an application to an order that is current, active or operative. This is so because it is not possible to discharge, suspend, revive or vary an order that has been completed or complied with and is therefore not active or operative.
In Collins & Collins (1993) FLC 92-343 the Full Court (Fogarty, Strauss and Renaud JJ) heard an appeal concerning a lump sum child maintenance order which had been paid. The relevant provision then (s 66N) provided that a court could vary an order in specified circumstances provided that there was an order if force. The Full Court noted that the section appeared to contemplate the variation of orders where the time at which the payments were to cease had not been reached. That case concerned a lump sum payment rather than periodic payments and the Court noted there was no provision in the Act for variation of a lump sum but said that there were examples of injustice that would be caused if lump sum orders could not be varied. The Court went on to say that it did not have to decide the point. However, obiter though it may be, the Full Court contemplated the same wording now before me. Their Honours’ interpretation was a common sense reading of the provision.
Collins was referred to in Caska & Caska [2001] FamCA 1279 by Lindenmayer J who concluded, perhaps also without finally deciding the point, that “in force” only related to orders that have still to be complied with.
In my view, s 83 must be read as being only available where an order is still “in force” that is still capable of having effect and still having some unpaid obligation to be fulfilled.
The wife’s application must therefore be seen initially as relying on s 44(3).
In Sharp and Sharp [2011] FamCAFC 150 the Full Court (May, Ainslie-Wallace and Young JJ) referred to previous decisions of the Full Court including Whitford and Whitford (2979) FLC 90-612 and Hedley and Hedley [2009] FamCAFC 179; (2009) FLC 93-413. In Hedley it was observed (Cronin J) that if the applicant was able to establish hardship, the Court was obliged to then consider whether or not to exercise the discretion to grant the leave sought. The material relied upon had to include but was not limited to, the length of the delay, the adequacy of the explanation for the delay, the prejudice occasioned to the respondent by reason of the delay and the strengths of the applicant’s case. Those matters could be subject to cross-examination.
The first of the two questions therefore is whether the wife can satisfy the Court on the basis of her material, read in conjunction with that of the husband, that she would suffer hardship. Section 44(4) refers to not only the applicant but also a child of the marriage. A child of the marriage in this case would mean the elder of the two children but having regard to the husband’s evidence that the wife is pandering to the child, I do not accept that the hardship in this case could be established in respect of that child. Hardship (see Whitford) must be akin to severity, privation or that which is hard to bear or a substantial detriment. No particular guide can be fixed in stone and each case must be determined on its merits.
As counsel for the husband conceded, it is possible that the wife might succeed at trial but on the uncontested evidence, knowing that the facts are disputed, I could not conclude that, whilst the wife has $20,000 in the bank, refusing her application for maintenance would create a severe problem or deprive her of the daily requisites that she needs. Hardship is not established by showing that the wife would be marginally better off if she was successful in being given that leave.
In my view, the evidence does not satisfy the test at this stage. It is also important to point out that the evidence before me does not show that at the time that the divorce order became final, the wife could not support herself as must be proved under s 44(4) of the Act. It may be that there is some such evidence but it was certainly not before me.
Accordingly, the wife’s application for maintenance must fail because there is not sufficient evidence before me to justify giving the wife leave under s 44(3) of the Act to bring it.
I propose to make orders as otherwise indicated.
I certify that the preceding Forty Four paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 May 2012.
Associate:
Date: 4 May 2012
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