Brewer and Brewer

FAMILY COURT OF AUSTRALIA

BREWER & BREWER

[2018] FamCA 5

FAMILY LAW – SPOUSAL MAINTENANCE – Interim order – where the wife seeks the husband pay $2,300 per month by way of interim spousal maintenance – where the husband opposes the order – where the husband has recently resigned his position with his company as at 5 January 2018 – where the husband has health issues – where the husband has chosen to resign from his employment in circumstances where the medical evidence does not substantiate any case that he cannot work – where the wife is unable to support herself adequately – where the husband has a greater earning capacity than the wife – where the children live with the wife and spend time with the husband – where the husband is reasonably able to maintain the wife – where the husband has capacity to contribute to the wife’s support – order that the husband pay the wife $2,300 per month by way of interim spousal maintenance.

Family Law Act 1975 (Cth) ss 72, 74, 75(2)
Family Law Rules 2004 (Cth)

Bevan & Bevan (1995) FLC 92-600

Curnow & Curnow (unreported, FamCA, 28 April 1997)
Hall & Hall (2016) 257 CLR 490
In the marriage of Redman & Redman (1987) FLC 91-805
Maroney & Maroney [2009] FamCAFC 45

APPLICANT:

Ms Brewer

RESPONDENT:

Mr Brewer

FILE NUMBER:

MLC

7271

2017

DATE DELIVERED:

11 January 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

12 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Atkinson

SOLICITOR FOR THE APPLICANT:

Coote Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Teicher

SOLICITOR FOR THE RESPONDENT:

Garland Hawthorn Brahe

Orders

BY CONSENT AND PENDING FURTHER ORDER IT IS ORDERED THAT:

The husband continue to pay all repayments toward the finance associated with the Motor vehicle registration number … as and when they fall due.
The husband continue to pay private health insurance for the wife at the current rate.

IT IS ORDERED THAT UNTIL FURTHER ORDER:

The husband pay to the wife interim spousal maintenance of $2,300 per month into an account nominated by the wife.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7271 of 2017

Ms Brewer

Applicant

And

Mr Brewer

Respondent

REASONS FOR JUDGMENT

The applicant wife brings an interim spousal maintenance application for the respondent husband to pay $2,300 per month. This is opposed by the husband who has recently resigned his position with his company effective 5 January 2018.
The parties are engaged in substantive property settlement proceedings which have not yet been listed for trial.
It is important to highlight that there are controversial facts in dispute which cannot be determined in an interim hearing. The following matters are based on documents relied upon by the parties.

Background

The parties were married in 1999 and separated in March 2015 according to the husband or in November 2015 according to the wife.
The husband is technical adviser and was a company director aged 47 years.
The wife is employed part-time in administration and is aged 42 years.
There are two children of the marriage aged ten and seven. The children live with the wife and spend time with the husband four nights per fortnight. The younger child suffers from a genetic disorder and the wife receives a carer payment for him. The parties dispute the extent of the younger child’s needs, but he will require ongoing management by an endocrinologist.
The husband is a director of B Pty Ltd (“the company”) which is a trustee for the B Unit Trust (“the unit trust”) which has three unit holders, one of which is the trustee for the parties’ family trust (“the family trust”), the Brewer Group Pty Ltd. The unit trust obtains the benefit of the profits of the business of the company. The parties’ family trust has a 33 per cent interest in the unit trust and has a loan account as a consequence of the drawdowns made throughout the year by way of distribution to the family trust.
The former matrimonial home in Suburb C was sold in July 2016. The wife received net proceeds of $76,440.44 on 25 November 2016. The husband received $100,000 of those proceeds which have been invested in a term deposit account. Both parties deposed that the term deposit is security for the company.
The wife used the net proceeds of sale to purchase a property in D Street, Suburb C (“the Suburb C property”) which is subject to a mortgage. The husband and wife are co-borrowers for the NAB mortgage.
The wife deposed and it was agreed that the current balance of the mortgage over that property is $401,726 and that since December 2016, she has made all of the loan repayments which are approximately $2,295.90 per month. The wife has depleted her capital to make the payments. She deposed to having savings of approximately $28,253.80 in a bank account which represents the balance of the payment she received from the sale of the former matrimonial home.
The husband is the registered proprietor of a property acquired during the marriage at E Street, Suburb F (“the Suburb F property”) which is tenanted. The husband deposed that this property is valued at approximately $500,000. He deposed to a mortgage on this property and the current equity in that property being $150,000. However in his latest Financial Statement the husband refers to a mortgage estimated at $290,000 on that property. The rent received by the husband is recorded by him as $416.57 weekly. The equity in the Suburb F property is $210,000 on the evidence in the husband’s latest Financial Statement.
When this matter was first listed in the Judicial Duty List on 6 December 2017 the husband filed a Financial Statement on 2 October 2017 indicating that his weekly income was $9,502 and his weekly personal expenditure was $7,182.
The wife’s application was adjourned to the following day due to the matter not being reached late in the day on 6 December 2017.
Subsequently on 7 December 2017, counsel for the husband successfully sought an adjournment of the interim hearing before it began on the basis that the husband had a medical condition and had decided to resign his position with the company. Counsel also submitted that the husband’s Financial Statement which had been filed by his solicitors was inaccurate because the husband had completed it incorrectly. Counsel maintained that the husband misunderstood parts of the Financial Statement and sought to file a revised Financial Statement and an affidavit about his medical condition.
The husband then filed a Financial Statement on 11 December 2017 and three affidavits.

Relevant Law

The right to spousal maintenance is outlined in s72

of the Family Law Act 1975 (Cth) (“the Act”). It provides:
72Right of spouse to maintenance
(1) 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 reason 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 subsection 75(2)
...
Section 74 of the Act provides:
74Power of court in spousal maintenance proceedings
(1) In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
The matters to be taken into account in relation to spousal maintenance are set out in s 75(2) of the Act. The following factors are relevant to the circumstances of this case:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)the commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
…
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
…
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person - the financial circumstances relating to the cohabitation; and
…
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(n)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
In Bevan & Bevan (1995) FLC 92-600, the Full Court of the Family Court of Australia outlined the four general principles (at 81,982) that an award of spousal maintenance requires:
a)a threshold finding under s 72;
b)consideration of s 74 and 75(2);
c)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
d)discretion exercised in accordance with the provisions of s 74, with “reasonableness in the circumstances” as the guiding principle.
In Curnow v Curnow[1], the Full Court of this Court held that even where the threshold has been met under s 72 of the Act, an obligation to pay spousal maintenance only arises if the party from whom the payment is sought is reasonably able to maintain the other party.
[1]Curnow & Curnow (unreported, Family Court of Australia, Ellis, Kay and Moore JJ, 28 April 1997)
In Hall & Hall (2016) 257 CLR 490 at paragraph 7 the High Court discussed the long established distinction between the Family Court’s power to make an interim order under s 74(1) of the Act and the power to make an urgent order that is separately conferred by s 77 of the Act.
The High Court pointed out that unlike a court exercising a power to make an urgent order conferred by s 77 of the Act, a court exercising the power to make an interim order under s 72 of the Act “must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant”.[2]
[2] Hall & Hall (2016) 257 CLR 490 at 8 citing In the marriage of Redman and Redman (1987) FLC 91-805, 76,081.
The High Court went on further to state:
…No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order[3]. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).[4]
[3]In the marriage of Redman and Redman (1987) FLC 91-805 at 76,081.
[4]Hall & Hall (2016) 257 CLR 490 at 8.
In Maroney & Maroney [2009] FamCAFC 45 at [56] Coleman J said:
…The “capacity” to meet an order for interim spousal maintenance is not confined to income. Once a party, such as the wife in this case, establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.

The Evidence

The wife relied upon the following documents:
·Amended Initiating Application filed 27 September 2017;
·Affidavit of the wife filed 29 November 2017; and
·Financial Statement of the wife filed 29 November 2017.
The husband relied upon the following documents:
·Response to Initiating Application filed 2 October 2017;
·Affidavit of Dr G filed 11 December 2017;
·Affidavit of the husband filed 11 December 2017;
·Financial Statement of the husband filed 11 December 2017; and
·Affidavit of the solicitor for the husband Ms H filed 12 December 2017 annexing a letter from consultant cardiologist and international heart failure specialist Professor J.
The interim hearing proceeded by way of submissions only in the Judicial Duty List and the evidence remains untested.

Evidence of the wife

The wife deposed to a weekly income of $1,526 and weekly expenses of approximately $2,714. These expenses include mortgage payments for the Suburb C property of $530 weekly. This leaves a weekly shortfall of approximately $1,188.
The wife’s average weekly expenses under Part N of her Financial Statement are $934 and $1,233 for the children.
The wife deposed to using her funds in the bank account to supplement the cost of her and the children’s living expenses and to being concerned about depleting her savings.
The wife deposed that she is currently employed on a part-time basis as an office manager earning approximately $1,075 per week. Exhibit 3 was the wife’s contract of employment dated 16 October 2017 with a commencement date of 23 October 2017 . She deposed to receiving a weekly Centrelink carer payment of $62 for the care of the younger child and Family Tax Benefit of $113 weekly. The wife deposed to working part-time because of the needs of the children and in particular managing the needs of the youngest child. She also deposed to receiving $276 weekly child support from the husband. The child support has been assessed.
The wife deposed in paragraph 47 that she applied to the Child Support Agency for an assessment, and received an assessment of child support payable from the husband to the wife as equal to $2,141.50 per month (Annexure PB-2).
The wife submits in her affidavit that while the husband has paid her $1,200 per month since separation it is $941.50 per month less than the amount assessed.
The wife deposed that she has savings from the net proceeds of sale of the former matrimonial home of approximately $28,253.80 in a bank account with NAB because she has used the proceeds of sale for mortgage repayments, living expenses and to repay the balance of the loan from her sister-in-law for the deposit on the new property.
The wife deposed that she owns a motor vehicle which she currently drives and which is encumbered by a loan which is met by the husband. She deposed that the husband pays $667 monthly for the loan for that motor vehicle. She deposed to otherwise meeting all the other expenses for the vehicle including insurance, registration, servicing and petrol.
The wife deposed to a superannuation entitlement with a gross value of $25,538.

Evidence of the husband

In his Financial Statement filed 11 December 2017, the husband deposed to a total weekly income of $6,968.20 and personal weekly expenditure of $5,374.97. He has a weekly surplus of $1,593.25. He deposed to resigning from his position as at 5 January 2018 which will change his financial circumstances so that he will not receive any financial distributions from the company through the trust.
As outlined earlier the husband receives weekly rent of $416.57 from the Suburb F property registered in his name which has equity of $210,000.
As shown on his Financial Statement, the husband deposed in Part G to having personal expenditure of $506.97 per week which is paid to the wife as an “amount of assessment, agreement or order”. This amount is included in his total personal expenditure in Part G of $5,374.97 and is further broken down in Part H of his Financial Statement as being a cost of $501.73 per week to the respondent for “Maintenance payment” and $233 per week for “[Motor vehicle] payments and Health Insurance”. It is unclear if the amount of $501.73 is in error and if this amount is instead meant to be $506.97, as contained in Part G. This was not clarified during the hearing. However the wife maintains that she does not receive any “Maintenance payment” from the husband of $501.73 or $506.97. As discussed above, she deposed to receiving $276 per week in child support from the husband.
The wife’s evidence about receiving $1,200 monthly in child support seems to be supported by the affidavit evidence of the husband.
In his affidavit filed 5 December 2017, the husband deposed to making payments to the wife’s account equalling:
a)A monthly $1,200 deposit;
b)A monthly $670 payment for her Motor vehicle
c)Road toll fees;
d)Monthly health insurance fees of $309; and
e)$400 per month towards a joint credit card debt.
The wife had deposed that the husband had ceased paying the credit card debt.
The husband deposed to not having received notification of the Child Support Assessment until mid-November 2017, at which time he paid the full amount of child support at his next pay cycle on 1 December 2017.
The husband deposed that he has a balance of $4,910 in a joint NAB bank account with his new partner. He also has an amount of $100,000 held in a term deposit with NAB. The husband deposed that these funds were from the sale of the matrimonial home at auction in July 2016, and were required to be placed in a term deposit account as a guarantee against the company’s business debts previously guaranteed against the former matrimonial home.[5] There appeared to be a concession from counsel for the wife that these funds are not presently available to the husband because the funds are being used as security.
[5] Affidavit of the husband filed 2 October 2017, par 35.
The husband deposed to a total value of property owned by him of $926,208 and deposed to liabilities of $503,000. The husband deposed to a VISA Credit Card debt of $12,000 in his Financial Statement.
The husband deposed in his Financial Statement to an ANZ bank account in the sum of $3,798. Exhibit A is an ANZ bank statement which indicates that on 8 December 2017 that same account amounted to $44,084. The husband produced evidence (Exhibit 4) of a payment from him to his solicitors’ trust account for $38,070 in legal fees on 11 December 2017, which was the day before the hearing.
The husband deposed that he has a 33 per cent share in a business which amounts to $317,500. The husband deposed that in 2015 the parties were involved in obtaining a valuation of the company because the working relationship with his two business associates became strained.

The husband deposed that the valuation of the company was between $750,000 and $1,150,000 with a midpoint value of $950,000. He deposed that accordingly, the value placed on the family trust holding was in the range of between $250,000 and $385,000 with a mid-point value of $317,500.
The husband has a superannuation entitlement of $44,176.95.
There is a prospect of a payment to be made by the husband’s two business partners for the parties’ interest in the company as foreshadowed in the email to the husband accepting his resignation which was annexed to the husband’s affidavit filed 11 December 2017 (Annexure MJB-3).

The husband’s medical condition

The husband deposed to resigning his position with the company on 7 December 2017, but agreeing to stay on for the purpose of handover until 5 January 2018. He deposed that his written resignation was accepted on 10 December 2017. He deposed that he will “cease receiving a distribution/drawings” from the company as of 5 January 2018.
Concerning his health, the husband deposed that he contracted a virus after returning from a business trip in about mid-2016. The husband deposed that he spent two weeks in hospital after being advised to attend emergency at K Hospital by a General Practitioner after he had been diagnosed with bronchitis by a previous General Practitioner.
The husband deposed that after catheter ablation surgery he found it difficult to return to work as he was constantly on medication which made him tired and that he suffered from “chronic headache most days”.
He deposed to being rushed to hospital on five occasions in October and December 2016, twice in January 2017 and once again in March 2017. He deposed to being admitted via ambulance to hospital on two of those occasions and finding each visit to hospital taking “a heavy toll on me mentally and physically. Each time I felt I was going to die”.
The husband deposed to his health affecting his work performance and limiting his capacity to work, particularly in circumstances where there was a further strain on his relationship with his business associates. He deposed to reaching the point where interacting with his business associates causes his heart rate to raise significantly which led to him working from home. He deposed that since returning to work in 2016 he has found it more and more difficult to deal with stresses and that he can usually only handle one work conference per day.
The husband deposed to the stress of litigation and financial disclosure causing further difficulties in his relationship with his business partners who became suspicious of his motives.
The husband deposed to travelling overseas at the end of September 2017 until the end of October 2017 for business, but extending the trip for three weeks for leisure.
The husband deposed to visiting his General Practitioner with an extremely bad headache which lasted for a number of days on 23 November 2017. He deposed to being advised that he had high blood pressure, was prescribed strong pain medication and was given a medical certificate for one week off work.
The husband deposed to becoming “extremely distressed” at Court on 6 December 2017 and suffering from a severe headache and high blood pressure. He deposed to making a decision on the evening of 6 December 2017 to remove the most significant stress from his life which is his work, because of concern about his health.
The husband filed an affidavit from his cardiologist, Dr G on 11 December 2017.
Dr G deposed that he first met the husband on 9 August 2016. He deposed that the husband “presented with a diagnosis of recurrent persistent atrial fibrillation with severe non-ischaemic cardiomyopathy”. Annexed to his affidavit is a letter from the doctor to the husband dated 2 October 2017. In that letter the doctor refers to the symptoms of cough and breathlessness with which the husband presented at K Hospital together with “acute decompensated heart failure managed with heart failure pharmacotherapy, anticoagulation, and cardioversion with amiodarone but developed recurrent persistent AF with ongoing left ventricular dysfunction”.
The doctor deposed that after treatment under his care and catheter ablation on 19 August 2016, the husband took some weeks to recover from the operation. The doctor noted that the husband subsequently developed “a paroxysmal palpitations due to recurrent episodes of atrial tachyarrhythmias (atrial fibrillation and flutter) lasting minutes to hours at a time, indicating that the procedure was partially successful”.
The doctor recommended a repeat procedure “to prevent recurrent AF and AF induced cardiomyopathy”. The doctor notes that the husband preferred a more conservative approach as he felt that he was able to control his symptoms by relaxing, meditating, and limiting exercise in the gym. The doctor noted that more recently the husband has been challenged due to “a number of psychosocial stressors including an ongoing divorce settlement and a very busy work schedule”.
The doctor was of the opinion that the husband has suffered recurrent palpitations which may simply reflect his “underlying anxiety or alternatively atrial arrhythmia”. The doctor strongly recommended that the husband consult his General Practitioner to discuss strategies to address his overall health and well-being and for a referral to a psychologist to provide professional support. The doctor concluded:
From the cardiac perspective, while stress reduction will have a positive impact on managing your cardiac condition, this is not a specific therapy for your condition, and you will require ongoing care under an electrode physiologist +/- heart failure specialist.

Submissions

Counsel for the wife in submissions highlighted the difference between the Financial Statement filed by the husband for the hearing on 6 December 2017 and the second Financial Statement filed by the husband for the hearing on 12 December 2017.
In his first Financial Statement the husband deposed to a weekly income of $9,502 and weekly expenses of $7,182. Therefore there was a surplus of $2,320. In his second Financial Statement the husband deposed to a weekly income of $6,968.20 and weekly expenses of $5,374.97. While his expenses decreased, this left a surplus of only $1,593.23.
In his first Financial Statement the husband deposed at Part G to payment to the wife of $278 per week for Maintenance payments/child support. In his second Financial Statement this amount was $506.97. It has already been highlighted that the wife denies receiving $506.97 from the husband. The amount in the husband’s first Financial Statement is more in line with what the wife deposes to receiving, being the amount of $276 per week.
Counsel for the husband submitted that an earlier Financial Statement filed by the wife on 20 July 2017 demonstrated that the wife’s Financial Statement filed 29 November 2017 has significantly increased average weekly expenses under Part N.
I accept that this is the case. In her earlier Financial Statement the wife deposed to expenses for herself under Part N as amounting to $502 whereas in her later Financial Statement she deposed to the same expenses amounting to $934. Counsel for the husband submitted that there is no explanation for the increased expenses as between the earlier Financial Statement filed and the financial statement filed 29 November 2017.
However I accept the explanation of counsel for the wife that after initially filing her Financial Statement in July 2017, the wife had an opportunity to review the weekly expenses in the light of an Amended Initiating Application and I note that some of the expenses claimed under Part N are similar to those claimed by the husband. For example the husband has claimed $275 weekly for food for himself and the wife has claimed $230. The wife has claimed $42 weekly for petrol and uses her car to travel to work. The husband has claimed only $18 weekly for petrol but has deposed to not knowing what expenses for his motor vehicle and phone are paid by the company under Part F of his Financial Statement.
Counsel for the wife relied on Exhibit A which comprised statements for the husband’s ANZ cheque account between June 2017 and early December 2017. These demonstrate a weekly payment by the husband to his new partner of $850. Exhibit B was a transaction history for the husband’s bank account which revealed a withdrawal of $38,070.
In his Financial Statement, the husband has deposed to not knowing what if any income is received by his current partner.
Counsel for the wife also referred to an expense included in Part H of the husband’s Financial Statement which the husband deposed was paid weekly to the wife. This amounts to $501.73. Counsel for the wife submitted that this is not being received by the wife and there is no evidence of this being paid by the husband to the wife. Again if the amount in Part H is meant to be $506.97, the wife deposed to only receiving $276 per week from the husband by way of child support.
Counsel for the husband whilst emphasising that the husband managed the business when he did not suffer from a heart condition said that “he does not say that he cannot work in the future”.
Counsel for the husband submitted that the wife’s Financial Statement includes as an expense an amount of $86 per week which is paid by her employer. I reject that argument because the wife included in her Financial Statement her gross weekly income which includes the superannuation paid by her employer. Exhibit 1 comprised recent payslips for the wife on 6 and 21 November 2017 and 5 December 2017.
Counsel for the husband also submitted that according to the wife’s bank statements (Exhibit 2) she has received payments from L Ltd on 9 November 2017, 17 November 2017 and 23 and 24 November 2017 which have not been explained. Counsel for the wife explained these amounts as outstanding from the wife’s previous employment and which were paid for hours that she had to work to comply with her notice period before leaving her previous employment.

Conclusion

I am satisfied that even taking account of the payments that continue to be made by the husband for private family health insurance and the loan repayments for the wife’s car, that the wife is unable to adequately support herself by reason of her primary responsibility for the care of the children. The wife is restricted to part-time work largely because of the potential expenses for childcare during those school holidays when the husband does not have the children in his care and she is working.
The children are aged ten and seven and I accept that the wife also has additional responsibilities for the younger child such as taking the child for appointments, which might impact on her working hours.
The wife has also not been in the paid workforce before separation because of her role as the primary carer of the children during the marriage and the husband’s capacity to support the family from the trust income alone. Despite being out of the workforce during the marriage the wife has obtained part-time employment. However I accept her Financial Statement filed 29 November 2017 which is evidence that she has a deficit of $1,188 weekly which she cannot meet without depleting the funds held in her account.
I am satisfied that the amount of interim spousal maintenance sought by the wife of $2,300 monthly or $575 weekly reflects her reasonable needs as outlined in her Financial Statement.
I am satisfied that the wife is unable to support herself adequately having regard to her role as primary carer of the children and having the care and control of the children. I am satisfied that the wife meets the threshold for interim spousal maintenance under s 72 of the Act.
The husband paid his solicitors $38,070 immediately before the hearing which significantly depleted his bank account savings. The husband has also chosen to resign from his employment in circumstances where the medical evidence does not substantiate any case that he cannot work and indeed his counsel conceded that he can work in the future.
There is a dispute between the parties about credit card repayments and the husband’s tax liabilities which cannot be resolved in an interim hearing. However Exhibit C tendered by counsel for the wife was the husband’s itemised account from the Australian Tax Office which indicated a nominal amount of $4.86 outstanding as at 8 December 2017.
I am satisfied that the husband has a greater earning capacity than the wife and has a history of working with the company for some 13 years and recently earning approximately $400,000 per annum.
I have carefully considered the physical and mental capacity of the husband for appropriate gainful employment under section 75(2) of the Act. The legislation refers to “capacity” in addition to taking into account his income, property and financial resources. The husband has equity in the Suburb F property of approximately $210,000 and continues to receive the rent from that property.
I accept that the husband is being treated for his heart condition as previously outlined by his doctors and that he may require psychological treatment and that his health might improve with a reduction of stress in his life. However there is no medical evidence that the husband cannot be employed for reasons of his poor health. There is no evidence that his income capacity will be seriously affected and he has been successful in his business for about 13 years.
Until the husband’s payments to his new partner of $850 weekly were raised by counsel for the wife, and his counsel responded by tendering joint bank statements for the husband and his new partner, there was no evidence provided by the husband about his new partner’s income. From the joint bank statements tendered by counsel for the husband I infer that the husband’s new partner makes regular payments of $850 per week to the joint bank account. For reasons best known to himself the husband elected not to disclose the income of his new partner in his Financial Statement. This was so despite the husband filing a second Financial Statement after he claimed the first Financial Statement was completed incorrectly.
In considering the matters to be taken into account in relation to interim spousal maintenance under s 75(2) of the Act I have particularly had regard to the following factors:
·The disparity of income between the parties;
·The history of the husband’s high income earning capacity from his personal exertion;
·The ages of the children being ten and seven;
·The necessary weekly expenses of the parties outlined previously;
·The fact that there is no dispute that the wife has been the primary carer of the children throughout the marriage and post-separation;
·The duration of the marriage being about 16 years;
·The fact that the wife has received a payment of $76,440 from the net sale proceeds of the former matrimonial home;
·The arrangements for childcare significantly impact on the wife’s earning capacity;
·The financial resources of the parties set out in their Financial Statements. The husband based on his latest Financial Statement receives weekly rent from the Suburb F property and has equity of $210,000 in that property which is registered in his name;
·The wishes of the wife to continue in her parental role;
·The child support obligations of the husband;
·The husband has the care of the children for half of school holidays when possible and four nights per fortnight;
·A standard of living that in all the circumstances is reasonable where the parties have enjoyed a high standard;
·The wife has contributed to the income, earning capacity, property and financial resources of the husband in her role as primary carer of the children during the marriage;
·The financial circumstances relating to the cohabitation of the husband with his new partner which amount to expenditure of $850 weekly in circumstances where his new partner also contributes $850 per week to the joint bank account which is used to pay living expenses and rent for the husband and his new partner; and
·The husband pays $500 per week in rent and the mortgage repayments to accommodate the wife and the children amount to $575 per week.
The legislation also requires that I take into account the husband’s capacity to pay the interim spousal maintenance sought by the wife and whether he is reasonably able to pay that interim spousal maintenance.
While the husband was employed, the husband’s excess weekly income allowed for the $850 weekly expense for his new partner. The rent paid by him of $500 per week is already taken into account in the husband’s weekly expenses. As discussed previously the husband deposed in his Financial Statement at Part G that he pays the wife $506.97 weekly but there is no evidence of this in his bank statements (Exhibit A). He is instead paying $276 on the evidence of the wife.
I accept the submissions of counsel for the wife that there is no current tax debt for the husband other than a nominal amount of $4.86 (Exhibit C).
In many respects this is an arbitrary process in circumstances where the husband has resigned his position, but I am satisfied that he has a higher income earning capacity than the wife. Doing the best I can on the untested evidence before me, I am satisfied that the husband has the capacity to contribute to the wife’s support and is reasonably able to do so. Taking into account the s 75(2) factors under the Act, it is reasonable and under s 74 of the Act it is proper in the circumstances for the husband to pay to the wife the sum of $2,300 per month or $575 weekly for interim spousal maintenance.
There is no evidence about how the husband proposes to support himself after the resignation, but I am satisfied that he has capacity to earn a significant income having regard to the history and that he is anticipating receiving a payment in settlement of the business from his partners which is referred to in the annexure to his affidavit filed 12 December 2017. An email from his business partner refers to the husband’s obligation to sell his equity upon resignation to his business partners. The email stated:
Dear [Mr Brewer]
Thank you for your email below, your resignation is accepted on that basis.
Let’s meet next week to talk about your handover duties. I am arriving in Australia next Monday, Dec 11^th and will stay in Melbourne for a week.
Thank you for also confirming your obligation as per our partner commitment to each other to sell your equity upon resignation to myself and [Mr M] at fair market value.
I look forward to seeing you and discussing and finalising these matters with you next week.
Best regards,
[Mr N] CEO
In his affidavit filed 11 December 2017, the husband deposed to holding a one-third share in BPL under his unitholder “Brewer Group Pty Ltd” as trustee for the Brewer Family Trust. The husband deposed at paragraph 33 of his affidavit that he is “unaware at this stage what will happen with the shares that the Brewer Group own in the business”.
However earlier in the affidavit, the husband deposed to having arranged for Company O to prepare a valuation of BPL in mid 2015 at a time he was intending to commence negotiations in order for his other two partners in the business to purchase the Brewer Group’s one-third share to enable the husband to exit BPL. In his affidavit, the husband deposes:
The valuation occurred shortly following my separation from [Ms Brewer]. We hoped that the valuation would be significant enough to enable [Ms Brewer] and I to each receive an amount that would be sufficient enough to allow us each to be able to support ourselves.
The valuation was received on 21 September 2015 with the figures as follows:
a)Valuation of company between $750,000 and $1,150,000 with a mid-point value of $950,000; and
b)The Brewer Group Pty Ltd holding value between $250,000 to $385,000 with a mid-point value of $317,500.

The husband deposed to being disappointed with the valuation and remaining involved with the company at that time as he had “recently separated” and was “paying for two separate households at the time. I thought it would be irresponsible for me to leave the business without receiving a payout substantial enough to support both houses”.
Further in the husband’s Financial Statement at Part I which relates to property owned by him, the husband estimates $317,500 as his interest in B.
It is therefore anticipated that upon the husband selling his share in the company to the remaining business partners, the husband will be in receipt of a significant amount of money.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 11 January 2018.

Associate:

Date: 11 January 2018

[2018] FamCA 5

11 January 2018

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Remedies

Procedural Fairness