BOWERS & CAMANO - [2018] FCCA 4042

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOWERS & CAMANO

[2018] FCCA 4042

Catchwords:
FAMILY LAW – Property – interim or urgent spousal maintenance – where Husband seeks sum of $25,000 – where Husband seeks sum be derived fro redraw of funds on mortgage of former matrimonial home, the Wife borrowing it or the Wife transferring a motor vehicle to the Husband so that it may be sold – where Husband operates small business which produces little or no net profit – where Wife proposes interim property adjustment Orders – where both parties seek 70 per cent of total property pool on a final basis – significant factual disputes between the parties - whether the Applicant is unable to support himself –whether the respondent has capacity to pay spousal support – where Court determines the Husband to be in immediate need of financial assistance.

Legislation:

Judiciary Act 1903 (Cth)

Family Law Act 1975 (Cth): part VIII, ss.72, 75, 77, 79; 81. 114

Cases cited:

Elei & Dodt [2018] FamCAFC 92

Kowaliw & Kowaliw (1981) FLC 91-092

Strahan & Strahan [2006] FamCA 1361

Applicant:

MR BOWERS

Respondent:

MS CAMANO

File Number:

ADC 2928 of 2018

Judgment of:

Judge Harman

Hearing date:

27 September 2018

Date of Last Submission:

27 September 2018

Delivered at:

Adelaide

Delivered on:

27 September 2018

REPRESENTATION

Counsel for the Applicant:

Ms Lewis

Solicitors for the Applicant:

D'Angelo Kavanagh

Counsel for the Respondent:

Ms Dickson

Solicitors for the Respondent:

Tindall Gask Bentley

ORDERS

Each of the parties shall and forthwith and by close of business 4 October 2018 make joint application to Bank B to seek to redraw from their mortgage account (being the mortgage encumbering the property C Street, Suburb D) a sum of $40,000 and each party shall, if able to do so, then forthwith do all things sign all documents and give all consents, authorities and instructions as may be necessary to cause the sum of $20,000 to be paid to each party, such funds to be paid by way of interim property adjustment pursuant to the Family Law Act 1975.
In the event that the parties are not able to redraw against the above mortgage then:
(a)The Wife shall, by close of business 12 October 2018, pay to the Husband by way of interim property adjustment order the sum of $20,000; and
(b)In the event that the Wife shall fail, neglect or refuse to pay that sum within that time (and time shall be of the essence) then the Wife shall forthwith do all things necessary to list for sale one of the two motor vehicles in her possession (it being the Wife’s election which vehicle is sold) and to cause the sum of $20,000 or the net proceeds of sale then resulting (noting that after discharge of any finance arrangement encumbering the vehicle the nett proceeds of sale may be less than $20,000) to be paid to the Husband by way of interim property adjustment.
Remove from the list of cases awaiting hearing the Interim Applications contained respectively in the Initiating Application 23 July 2018 and Response 20 September 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2928 of 2018

MR BOWERS

Applicant

And

MS CAMANO

Respondent

EX TEMPORE REASONS FOR JUDGMENT

These proceedings are commenced by way of Application in a Case filed 23 July 2018. By that Application in a Case, the Applicant Husband, Mr Bowers, seeks an Order in the following terms:
That the Respondent do pay the Applicant by way of urgent and/or periodic spouse maintenance at the rate of $800 per week until the Husband secures full-time employment commencing forthwith.
Further Orders are then sought with respect to disclosure and valuation. Those issues have been addressed by the docketed trial judge before whom the matter came on 25 September 2018 and when an extensive set of Orders addressing those matters were made, including Orders which will facilitate negotiation between the parties and their legal representatives at the Court’s expense in the nature of a Conciliation Conference, if it might be so described.
By a Response to an Application in a Case filed 20 September 2018, the Respondent Wife, Ms Camano, opposes the Orders that are sought. Orders are sought therein with respect to valuation and disclosure. As regards the issue of interim or urgent spouse maintenance, it is simply sought that the Application be dismissed.
Beyond that, an Order is also sought by the Wife in the following terms:
That the Husband do all such things as may be necessary to close his sole trader business, E, within 28 days and arrange for all assets of the business, including and not limited to plant and equipment and stock, to be sold with the proceeds of sale to be deposited in an account in trust for the parties and the parties be restrained from dealing with the proceeds of sale pending final Order or the written consent of both parties.
That Order is not ultimately pressed at interim hearing, and perhaps thankfully so. I am not satisfied the Court would have jurisdiction to make such an Order. The Court’s jurisdiction must, as the Judiciary Act 1903 (Cth) makes clear, be firmly established before the Court can proceed. It would not be an Order by way of interim property adjournment under Part VIII of the Family Law Act 1975 (Cth), nor would it appear to fall within the Court’s ability to address injunctive relief under section 114 of the Family Law Act (supra). In any event, the point is now rendered nugatory by the Application not being pressed.
The parties have spent some time in discussion this morning but have not been able to resolve their controversy. It has, however, resulted in amended pleas of relief.
In the Husband’s case, the Husband seeks that he be paid a sum of $25,000 and that this be derived from one of three possible sources.
Firstly, the matter may be addressed by the parties making application to the mortgagor of the former matrimonial home to seek a redraw of funds. The parties are not agreed as to whether that is, in fact, possible. That amended plea arises from comments made by the Bench to the parties that there may be a means by which both parties could address their needs pending final hearing - each asserting that their expenses exceed income.
The parties are agreed that two separate parcels of real estate have been sold by them in relatively recent times. The Wife’s evidence is perhaps more extensive with respect to those issues, although that is not to suggest criticism of the Husband, nor to suggest preference of one party’s evidence over the other.
The proceedings are dealt with as an interim or interlocutory hearing. Accordingly, the matter proceeds without cross-examination or testing of evidence. The evidence of each party is accepted as, on its face, more probably correct than not. However, the Wife asserts at paragraph 37 of her affidavit that in December 2016, a property at Suburb F was sold and the net proceeds of roughly $140,000 received. Those proceeds were applied for a variety of purposes, including reduction of a mortgage over a further property at Suburb G.
The Wife at paragraph 38 then deposes to the sale of the Suburb G property in June 2017, ,and as a consequence of the sale of that property, the majority of funds being applied in reduction of the mortgage encumbering the former matrimonial home. It is unclear exactly how much was applied towards that reduction, although the affidavit indicates that the majority was applied and that a sum of $90,000 was retained for other purposes. Thus, the majority must exceed that retained and, accordingly, the payment must have been at least $90,000.
Shortly after that transaction, and in March 2018, the parties separated.
The other significant issue with respect to the proceedings is the establishment by the Husband of a business - that referred to in the Orders proposed above - E. It is a small business in relatively tiny accommodation. The premises are rented by the Husband. From those premises, the Husband undertakes his business. The business was established in the latter part of the relationship. Each of the parties leads evidence in relation to that reality.
The parties are agreed that portions of funds from the sale of at least one of the above parcels of real estate were applied towards meeting expenses in the set-up of the business of at least $60,000 and that the business was commenced and continues to operate.

Material considered

In dealing with the proceedings today, I have read and considered each of the documents that have been identified by the parties, comprising, in the case of the Husband, his Application, Financial Statement and affidavit filed 23 July 2018, and in the case of the Wife, her Response affidavit and financial statement filed 20 September 2018.
In addition to the material filed by the parties, there are a number of profit and loss statements with respect to the business, E, which are tendered and marked exhibit A. Those profit and loss statements cover the 2017/18 financial year as well as the months of August and September, 2018.
To the extent that it is suggested that the Husband’s evidence as to his earnings has been disingenuous, (he suggesting that his net takings and thus payment to himself by way of wages and salary has been nil), the statements do not necessarily support that proposition. Certainly, it is true that for the month of August 2018, that a small net earnings profit is reported - $2,561, or something in the order of $700 to $750 dollars per week net profit.
Nothing is shown within the profit loss statement for the month as to wages or payment to proprietor, and thus one can one infer that that is money that was available to the Husband. It must be borne in mind, however, that his affidavit was sworn or affirmed on 23 July, thus prior to August, and thus it is not possible for the Court to find that the Husband’s evidence was other than frank on the basis of the conduct of the business at the time of swearing. That there has been an increase in profit since is perhaps desirable, but does not impugn the credit of the Husband.
The profit loss statement for July 2018 does bear out the Husband’s assertion, reporting a net loss of $952, or a little less than $200 per week. Thus, the business could not yet be optimistically described as having turned the corner, having rendered a small profit in one particular month after a month of loss and, indeed, the prior financial year also demonstrating loss - $13,841.77 for the year, or a little over $1,000 per month. It does suggest, however, that some greater income has been received for August and September. Whether that continues or not is yet to be seen.
The Wife is in full-time paid employment, participating in employment activities that require her to be interstate at the time of this hearing and thus participating by telephone whilst represented by counsel. The Husband appears in person, represented by counsel.
There would appear to be a myriad of factual disputes between these parties which are, to say the least, curious. Each seeks, on a final basis, that they would receive Orders in their favour with the effect that they would each receive 70 per cent of the total property pool. One would think that if there was no factual controversy, such a broad range of dispute could not exist in our common law system in which all disputes are addressed through the application of settled principal to established facts.
It is clear, however, that there are significant factual disputes between the parties, particularly in relation to the introduction of property during or at the commencement of the relationship. There is no dispute that the Husband introduced a parcel of real estate - the first of the parcels referred to above as having been sold in recent past.
The Husband, however, asserts - and it is not suggested to impugn his credit at this point - that whilst he owned that property, the Wife did not own anything of any substance. He suggests that in addition to owning the Suburb F property, two motor vehicles and a motorbike - portions of which evidence are put into issue by the Wife - that the Wife held:
Very little by way of assets or savings, had about 30 to 40 thousand dollars in credit card debts, as well as legal fees from an earlier property settlement.
The Wife, for her part, is clear in asserting that she held substantial assets at the commencement of cohabitation, including equity in a property at Suburb H - subsequently disposed of during the relationship - a sum of savings of $70,000 or thereabouts and a motor vehicle, as well as her income. She does not refer to any debts.
No doubt, the Orders made by the docketed judge with respect to disclosure - informal as the disclosure is to be at this point, no declaration as to the administration of interrogatories, or permitting formal discovery having been made - will address some of those controversies.
The Wife also asserts that, during the relationship, she received substantial compensation funds as the consequence of realisation of a chose in action that arose either prior to the relationship or very early in it. Again, that is not referred to in the Husband’s evidence. Disclosure will hopefully address those matters.
The Husband seeks to move upon his Application for urgent spousal maintenance and, as indicated above, now seeks to crystallise that Application as a lump sum payment of $25,000, either derived from redraw, the Wife borrowing it from some other source, or, if necessary, transfer to him of the motor vehicle so that he might sell it, realise funds and pay himself that which the Wife may not have done.
There is some controversy as to the value of that vehicle as well as sentimental attachment asserted with respect to it, at least on the Wife’s part. There is controversy as to who drove the motor vehicle until recent past, although no dispute that post-separation, the vehicle was retained by the Husband but ultimately removed from his possession by the Wife, the vehicle being registered in her name.
The Wife, for her part, resists any sale of the particular motor vehicle referred to and proposes a lesser payment of $20,000 to the Husband and a corresponding payment of $20,000 to herself. The Wife proposes that those payments would be typified as interim property adjournment Orders - thus, to some extent, one might infer that the Wife seeks leave to amend and join issue, there being no Application before the Court at the time of its listing with respect to interim property adjustment relief.
The Wife proposes that those funds would be derived from either redrawing upon the mortgage, assuming that were possible - again, the parties being at odds as to whether it is. If that is not possible, the Wife will seek to borrow funds independently from family members, and if that cannot be achieved within such time as the Court might permit, that one of the motor vehicles be sold, although, clearly, it is the Wife’s preference that it would not be the one to which she is sentimentally attached.
I do not refer to that sentimental attachment to be in any way offensive or dismissive of that which the Wife asserts, merely to acknowledge that it is yet another issue in dispute between these parties.
The property pool of the parties in its totality is not vast. That is not to suggest the parties are impoverished – far from it. The wealth which they hold would place them within the top two per cent of wealthy people in the world. That perhaps reflects, more than anything, the relative poverty of the vast majority.
On any reading, the assets of the parties have a value approaching $1 million, but there are a number of debts which must also be met, including a substantial mortgage encumbering the former matrimonial home. Thus, the net assets available to these parties, at least on the Wife’s allegation, and not dramatically at odds with that alleged by the Husband, are $271,875, or thereabouts.
The parties will, if they continue in their present vein of being unable to resolve relatively simple controversies such as this, or unable to agree on basic facts which can be readily documented and corroborated, incur significant legal fees that will further reduce that available to divide between them.
The Wife otherwise primarily opposes the relief sought by the Husband, and the above proposal can and should be taken as a proposal in the alternative.
The Husband’s statement of financial circumstances asserts total weekly expenditure of $900 per week. That is comprised of the expenditure that is alleged within part G and part N combined.
On its face, none of the expenses that are alleged by the Husband would appear excessive, save and except that some issue might arise as to whether the payment of $200 of rent for the Husband’s business premises can or should be included. I accept it is an expense incurred by the Husband and that it is an expense that he needs to meet for the purpose of that business operating, even though it is producing little or no net profit.
In any event, even if issue were taken as to its inclusion - although the Husband operates the enterprise as a sole trader and thus it is his expense rather than belonging to a corporate entity - there is the reality on the Husband’s evidence that he is presently “couch surfing,” such that he has no permanent place of abode and is dependent upon the largesse of others to have a roof over his head. One might unkindly suggest that he could have slept in his car, although that was removed from him – thus, not even that option is available.
The Wife is in occupation of the former matrimonial home. That is no criticism of her. She is entitled to be so – she is a joint registered proprietor and the Wife’s indefeasible title to the property permits it (indeed, the Husband as well, although thankfully the parties have not sought to inflict living under the one roof upon each other). She is entitled to do so without payment of rent, fee or occupation charge.
The Wife does service the mortgage encumbering that property. On the Wife’s evidence, that is a not insubstantial amount. The Wife also services a number of other debts including credit cards, various expenses in relation to the two motor vehicles, health insurance and the like.
The Wife’s expenses, by combination of part G and part N, are substantial as well. By reference to the summary in part B of the document, the Wife’s expenses exceed her income by a modest amount, less than $50, but sufficient to warrant and justify the borrowing of funds by the Wife from family members which are also referred to as a debt.
As the Full Court has been clear, in dealing with an Application for spousal maintenance, one cannot include with respect to the party who is seeking to be maintained, costs with respect to others. It is less clear from settled authority as to whether the Court is entitled to include, and I accept that the Court would be entitled to include, expenses that are met for others. Indeed, that would appear inherent from the wording of the relevant provisions of the Family Law Act (supra), together with the authority to which the Court is referred by counsel for the Wife, being the decision of Ryan J, sitting as a single judge as the Full Court, in Elei & Dodt [2018] FamCAFC 92.
The issues between the parties are considerable. The Wife suggests that the Husband has not discharged his burden of proof in showing that he cannot meet his own needs, particularly through seeking alternate employment if the business that he is operating is not generating sufficient income or any income to meet those needs. The Wife otherwise asserts that, even if that threshold were met - although it is far from conceded - she simply cannot afford to contribute.

What must be observed at this point is that for the purpose of the determination of an interim or urgent spouse maintenance case, the Court is entitled to have regard not only to the income of the parties, but their resources and assets. Accordingly, if it is possible for the parties to redraw, then that would represent a basis upon which funding of any Order determined by the Court as appropriate could be met. However, before that point is reached, the Husband must demonstrate that required of him.
As is made clear by Ryan J in the above decision, it is important to consider each of the four steps necessary, being:
(1)Can the Applicant support himself or herself adequately?
(2)If not, what are his reasonable needs?
(3)What capacity does the respondent have to meet those needs; and,
(4)What Order is reasonable, having regard to section 75(2) of the Family Law Act 1975 (Cth).

(1) Can the Husband support himself adequately?

On an acceptance of the Applicant’s Financial Statement as, on its face, more probably correct that not, then, clearly, he cannot. However, issue is taken by the Respondent, by reference to her Honour’s above decision, as to what is meant by the phrase “unable to support themselves”. Of course, that is the test in relation to section 72 and section 75(2) of the Family Law Act (supra), not necessarily an urgent spouse maintenance case.
Section 77 of the Family Law Act (supra) provides that in proceedings with respect to the maintenance of a party, if it appears to the Court that the party is in immediate need of financial assistance and it is not practical in the circumstances to determine immediately what Order, if any, should be made, the Court may order payment pending the disposal of the proceedings of such periodic sum or other sums as the Court considers reasonable. The wording of the section makes irresistible that “other sums” must refer to a non-periodic payment, (in other words, a lump sum or transfer of property).
Consideration will still be given to the test in relation to section 75(2) irrespective of the different bases for address of jurisdiction under section 77 of the Family Law Act (supra).
As was considered in the above authority, the circumstances of which are, at the very least, analogous to this case, it is necessary for the applicant to show that they have taken reasonable steps to support themselves. That had been referred to by her Honour as requiring some evidence to demonstrate steps that had been taken to seek to ameliorate their own difficulties.
The business that is presently operated by the Husband was commenced during the relationship, albeit in its latter stages. That business is not presently producing significant income, and that could not be suggested to be the fault of the Husband. It is simply a start-up business in its early phases which, it would seem, the parties anticipated might not immediately generate significant income.
To the extent that issue is raised as to whether the Husband has been frank and candid as to the income he is presently earning, it need only be observed that:
a)It is addressed to some extent above; and,
b)There is no evidence to suggest that the Husband does other than disclose the income that he receives.
Gross takings and net earnings are two entirety separate concepts. The expenses of the business must be met. The balance sheets tendered in the Respondent’s case can be accepted on their face as more probably correct than not. They would paint a fairly dire picture of the Husband’s present financial circumstances.
Whilst there is no document in evidence, as has been referred to in submissions as to the numerous jobs that the Husband asserts that he has applied for to seek to obtain full time or at least substantial part-time employment earning a wage which would support him, I accept that such attempts have been made. The Husband, on his oath, asserts that it is so. His affidavit is clear that he has applied for numerous jobs and that it is a condition of his receipt of Newstart Allowance, not presently disclosed in his financial statement, but I accept the receipt of which commenced after the document was sworn, and in any event, would be disregarded as an income-tested pension or benefit from the Commonwealth.
The Husband’s conduct of the business need not be gone behind, nor need his application for numerous jobs. It is conceded that a statement of those which have been applied for has been disclosed, although it is not tendered. I am also conscious of the submissions put on behalf of the Respondent that the Applicant has applied for positions which are disingenuous, positions for which he holds no skills, qualification or training, and which inevitably he would be rejected from.
Whether that is so or not I need not determine, and cannot on the evidence as it stands. It is simply the allegation that is raised. In Elei & Dodt, her Honour was faced with a not dissimilar circumstance - a Wife who had employment skills but had been absent the workforce for some short time. One might analogously refer to the Husband’s position of being absent from the workforce and the area of the workforce in which he had previously been engaged and well remunerated - the passage of skills through their non-application and the like. It is certainly not dissimilar to that circumstance.
The Husband has demonstrated and given evidence on oath that he is taking active steps to address his employment. He has not been successful in doing so to date. It is unclear when he might be. That could be next week. It could be not before hearing. They are matters largely outside of the Husband’s control, (assuming for one moment that he is applying for jobs for which he is qualified - again, there is no specific evidence that would permit the Court to find that it is otherwise).
In those circumstances, I am satisfied, by reference to the section 72[1] test, that the Husband is not presently able to meet his expenses. By reference to the section 77[2] test, I am satisfied that the Husband is in immediate need of financial assistance. That is not ignoring the reality that his Financial Statement disclosed as at the date of its swearing in July that he held some funds in a bank account. They are far from substantial, however, and may well by this time - although I do not suggest a finding could be made that it is so - have been expended or substantially eroded through meeting expenses, noting that during that period his income has been modest and his expenses have certainly exceeded that which would be drawn against those amounts.
[1] Family Law Act 1975 (Cth).
[2] Ibid.
Those amounts can and should be used, and if they are, no doubt the parties can engage in strident argument as to whether they should be included, by reference to Baker Js decision in Kowaliw & Kowaliw (1981) FLC 91-092 - repeatedly affirmed by the Full court - as a premature distribution of an asset or an expenditure that is reasonable in meeting living expenses.

(2) If the Applicant cannot adequately support himself, what are his reasonable needs?

As already indicated, the statement of financial circumstances can, I am satisfied, for the purpose of this interlocutory determination, be taken on its face as more probably correct than not. There is no specific item of expenditure alleged by the Husband which is asserted to be inflated or unnecessary. The expenses are relatively modest, although noting that since the removal of the motor vehicle from the Husband’s possession - not to condone the action, but to acknowledge it has occurred - the Husband would not be needing $80 in petrol and maintenance of the motor vehicle.
He no doubt meets other expenses though - contributing to petrol for vehicles that he may borrow or have others drive, or public transport fees. Accordingly, I accept his expenses as alleged - $900, not including the cost of any residential accommodation - are reasonable, and reflect an amount that he would require to meet his expenses.

(3) What capacity does the Respondent have to meet those needs?

Applying the same test to the Respondent, that she has no capacity from her present income, in light of her expenses - which are not significantly challenged, nor could they be in the circumstances - income could not be a means from which either party could further address their needs, whether their own, each other’s, or any other person’s. However, the Court is not confined for the purpose of an interim or urgent spouse maintenance determination to a consideration of income. The Court is authorised specifically by section 75(2) of the Family Law Act (supra) to consider not only the income earning capacity of the parties but their property and financial resources.
As the Full Court has discussed in Strahan & Strahan [2006] FamCA 1361, any release of capital to parties must be typified at the time of its release. It cannot wait until hearing. Thus, these parties are in dispute as to whether there is to be an Order made purely in the Husband’s favour and typified as interim or urgent spouse maintenance or whether there is to be a release of funds to each party and on the basis of interim property adjustment.
Again, such a partial property settlement brings additional considerations beyond those required with respect to maintenance. The Court must still be satisfied that it is just and equitable to do so by reference to section 79 and section 75(2) of the Family Law Act (supra).
I am satisfied that if there is the ability for funds to be drawn and released on that basis, that it is certainly an appropriate path. Whether it is released in favour of one party or the other, on a different basis or not, is a different matter.
At the time that this matter was listed for determination, there was, of course, only an Application for interim or urgent spouse maintenance. I am satisfied that if an Order is made in the Husband’s favour, it should be typified in those terms. That would give rise to the potential for a release to be made in favour of the Respondent Wife and to be typified on the same basis or differently.
Of course, there is no Application by the Wife for interim or urgent spouse maintenance and, thus, it would appear to be somewhat mischievous to seek to categorise them on the same basis. If a release were made in favour of the Wife, it must be categorised as an interim property distribution - not to seek to occasion prejudice to the Wife, but it is the basis and only basis on which such a release is sought in the Court. I will return to those issues shortly.
On the basis that the parties have an ability to meet need, in the case of the Husband’s Application, from either redrawing against the mortgage - if that is possible or if not - or the disposal of an asset, I am satisfied that an ability or capacity to meet need is demonstrated.
In having regard to what Order is reasonable in the circumstances, I must turn to both section 75(2) and section 77 of the Family Law Act (supra). The Husband’s needs can be determined by reference to his evidence, and accepting that evidence on its face as more probably correct than not. In those circumstances, I am satisfied that it would be inappropriate to make an Order by way of urgent spouse maintenance. The very pre-condition - an ability to practically determine need - cannot be met. Thus, I propose to proceed by reference to section 72 and section 75 of the Family Law Act (supra).
I am satisfied, as would be apparent from the above discussion, that for other adequate reason, the Husband is unable to presently meet his needs and adequately support himself. The business that was established as a joint endeavour - or at least with the joint knowledge of the parties, (it could not be otherwise – the Wife gives clear evidence as to the use of joint funds to establish the business) - leads to the present controversy. The Husband is seeking to ameliorate those difficulties through seeking other employment, although I am not satisfied one could refer to that business endeavour, at this point or any, as a hobby.
The business was clearly established as a business and an intended means of support. However, at this point, the engagement in that process, the failure to have obtained more remunerative employment and the Husband’s absence from the field of endeavour in which he was previously engaged establishes, to my mind, other adequate reason.
In turning to section 75(2) of the Family Law Act (supra) and each of the factors therein, most can be dispensed with relatively quickly, save and except that they must be considered at least briefly.
The parties are of similar age and similar state of health. There is no suggestion that there is any health imperative which impacts upon the present income or earning capacity of either party.
The Court must have regard to the income, property and financial resources of both of the parties. At this point in time, it is trite to observe that the Husband does not have possession of any asset of the relationship save the business and its plant, equipment and stock as it is described in the evidence. The Wife has possession of all other assets. It is not a criticism of her, merely a reflection of reality.
There are no children of the marriage. The Wife does, however, have the care of a 16 year old child of a former relationship for whom she receives no child support. The Husband has thankfully not, through his counsel, sought to advance a similar argument to that with which the Husband has been met of the Wife being put to the task of demonstrating what steps she has taken to obtain some assistance. The simple reality is she does not receive it.
The Wife also has an adult child of the previous relationship living with her who receives some modest social security benefits and who has a child of her own. That now adult child is suggested to have some health issues which render her somewhat requiring support from her mother.
Thus, the duty which the Wife apprehends and acts upon with respect to her elder child does remain a duty relevant, albeit not under subsection 75(2)(c) of the Family Law Act (supra), but under subsection (o).
I must consider the commitments of each party that are necessary to enable them to support themselves or any other person they have a duty to maintain. Each of the parties has a duty to maintain themselves and, in the Wife’s case, the various others within her household at least to some extent.
Responsibilities of the parties to support others are addressed above.
The receipt by either party of Commonwealth benefits or superannuation pensions must be considered. The Husband is suggested to now receive a Newstart allowance in light of his modest income. That increases funds available to him. However, it is clearly income from a Centrelink source rather than from his own income and exertions. It can be considered in an interim determination. However, whilst it reduces the Husband’s needs slightly, it does not do so substantially, particularly as there are expenses that the Husband cannot presently meet and thus does not incur, to wit, housing.
I accept that both of these parties are financially pressured at this point in time. They are each very much stretched in relation to their income - in the case of the Wife, such that her income is entirely expended, with the possibility that she requires external assistance by borrowing from her brother; in the Husband’s case, having a significant shortfall and not advancing forwards.
The standard of living that each can maintain, however, is far more substantially disadvantageous in the case of the Husband, living from house to house at the largesse of friends. That would be a basis upon which the Court’s jurisdiction would be positively exercised.
The extent to which either party might undertake a course of education or training or establish themselves in a business is somewhat ironic in this case. It is the establishment of the business that leads to the present controversy. However, it does not assist in this determination.
The effect of Orders on creditors is not relevant. There will be none.
The extent to which either party has contributed to the income, earning capacity, property or financial resources of the other is relevant. Falling short of a finding that the parties have contributed to each other’s income, property or financial resources, they have clearly intermingled their finances for a significant period of time - their nine-year marriage, (although possibly as short as eight on the Wife’s evidence.) That is a factor which would lend support to the making of an Order, as the relief sought is a continuation of that circumstance.
The duration of the relationship and the extent to which it has affected the earning capacity of a party is relevant in that the Husband’s earning capacity is affected by having engaged in the joint and consensual establishment of the business which is not presently generating any significant income. He has also had significant periods, on his evidence, although very much cavilled with by the Wife, absent from paid employment, fulfilling a role of homemaker and parent. Whether that is so or not can be determined at final trial. It is, however, the allegation, and if one accepts the evidence on its face as at least possible and plausible, it would have some relevance.
It would certainly impact upon the above finding as to whether there are other reasonable grounds for the Husband to not presently be able to meet his own needs. He has been out of paid work for some little time during the relationship.
Whether a party wishes to continue their role as homemaker and parent is relevant, as the Wife does. She is able to do so and the making of an Order will not impact upon that ability.
Whether either party is cohabiting - neither is. There is suggestion in the evidence, at times somewhat unnecessary and possibly calculated to cause embarrassment, that the Husband may have formed a new relationship. However, at best, it is a new relationship of (whilst one hesitates to use the phrase with persons in their fifties), boyfriend and girlfriend rather than a cohabitation. Thus, it would not be relevant.
The terms of Orders and their impact upon creditors and bankruptcy is not relevant.
Any child support that a party to the marriage has provided is not relevant as there is no child of the relationship.
I am satisfied that there are no other facts or circumstances of vast significance, save and except to observe that it may be possible for these parties to draw funds from that which they have previously paid into their mortgage. It is possible that it is not a term or condition of the mortgage and that the payment, once made, is simply surrendered to the bank in reduction of the debt. The Wife has advanced the possibility of making application for and obtaining an additional loan – refinancing, as it were.
I am not satisfied that this Court has jurisdiction to compel such an application by the parties, jointly or severally. It would be contrary to the section 81 requirement[3] to seek to end the financial relationship of the parties, although it is proposed as only an interim or interlocutory order. However, it would not be an Order that could find its jurisdictional foundation in section 114 of the Family Law Act (supra), nor as an interim property adjustment Order. It is not an adjustment of property. It is requiring the parties to take steps to engage in further borrowing.
[3] Family Law Act 1975 (Cth).
For those reasons, I do not propose to make such an Order. However, it is a matter for the parties whether they wish to pursue that at some point to address the Orders that I do propose to make.
Whilst it is unclear whether the parties can redraw against the mortgage, it is possible that they can. Accordingly, I propose to make an Order for a lump sum payment in favour of each of the parties in the event that the redrawing can occur.

If the parties are compelled to make application to redraw, that is an Order in the nature of an interim property adjustment Order, at least as one possible jurisdictional ground. It is withdrawing the parties’ own funds rather than requiring them to engage in borrowing and enter into a contract, which I am not satisfied I have power to do. If such an application is successful, it would be possible for each to receive a sum of $20,000. On the basis that the Husband’s initial Application was framed as an Order for periodic maintenance and, in particular, an Order for periodic maintenance that would expire upon his securing full time employment, I propose to accede to the proposal that both parties receive that distribution as an interim property adjustment Order.
Whilst it is typified in these Orders, it is then open to the parties to agitate as they desire, and I have no doubt they will, as to how that property that each has received should be treated. Again, Kowaliw & Kowaliw does not automatically require that it be “added back” or, more correctly, considered by reference to section 75(2)(o) of the Family Law Act (supra). If, for example, Mr Bowers has received $20,000, has not obtained paid employment and expended it all on his expenses, he is perfectly entitled to present his case on the basis that the money would simply be “written off”, as it were, as having met his reasonable living expenses.
However, on the basis that what is to be withdrawn is the money of the parties, I am satisfied that is the preferable course. If the redraw cannot occur, then it will be necessary for funds to be paid. I would propose, on that basis, that the Order would then become that the Wife obtain and pay to the Husband, still typified as an interim property Order, a sum of $20,000. That is somewhat more problematic, however, as it does, in the same vein as the above, require the Wife to obtain finance, albeit not from a bank but from others.
However, it is the manner in which the Wife proposes the Order would be typified and, thus, it is how I would propose it. In those circumstances, I am not satisfied that it would be an appropriate exercise of jurisdiction to compel the Wife to borrow an additional $20,000 to pay herself. That is a matter entirely for her. If payment cannot be made on that basis, then I do propose to make an Order that the Wife cause one of the motor vehicles presently in her possession to be sold. It will be a matter of her choice.
One of the vehicles is encumbered, the other is not, although the unencumbered vehicle is that which the Husband previously drove and which the Wife wishes to retain on a final basis. If the financed vehicle is sold, based on the Wife’s evidence as to its value and the amount of financing, it is possible that an amount, if not the full amount to be paid, at least approximating it, will be available. The parties can do as they wish with respect to any shortfall, whether the Wife borrows the additional funds, draws them on a credit card or whether it is simply not paid and the parties, for example, get on with negotiating a compromise at the totality of the proceedings.
However, for those reasons, I make Orders as follows.

I certify that the preceding one hundred (100) paragraphs are a true copy of the ex tempore reasons for judgment of Judge Harman

Associate:

Date: 12 February 2021