BYRNES & BYRNES

[2015] FCCA 2260

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYRNES & BYRNES [2015] FCCA 2260

Catchwords:
FAMILY LAW – Parenting – impact of father’s behaviour upon children –gradual increase in time and gradual decrease in supervision to no supervision.

FAMILY LAW – Property – preservation of assets – wife’s claim for spouse maintenance.

Legislation:

Family Law Act 1975 ss.60CC, 72

Applicant: MS BYRNES

Respondent: MR BYRNES

File Number: SYC 7398 of 2014

Judgment of: Judge Henderson

Hearing date: 2 July 2015

Date of Last Submission: 2 July 2015

Delivered at: Sydney

Delivered on: 2 July 2015

REPRESENTATION

Counsel for the Applicant: Mr Dura

Solicitors for the Applicant: Haller & Grad Business Lawyers

Counsel for the Respondent: Mr Gould

Solicitors for the Respondent: Slater & Gordon Lawyers

Solicitors for the Independent Children’s Lawyer: Legal Aid Nsw Sydney Central Family Law

ORDERS

1. The matter be listed on 29 February 2015 at 9:30am following the release of the family report.

2. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 1 February 2016.

3. The Family Report to deal with the following matters:

   (a)The benefit to the children of a meaningful relationship with each parent and any significant adults in their lives.

   (b)The capacity of each parent to protect the children from harm.

   (c)The impact on the children and on each parent’s capacity if the allegations they each make against each other of poor behaviour and family violence are found to be correct by the Court.

   (d)The capacity of each parent to promote the psychological, emotional and educational well being of the children.

   (e)The insight of each parent into the children’s needs.

   (f)The attitude of each parent to the responsibilities of parenthood.

   (g)Any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes.

   (h)Any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

4. The parties send copies of all of their court documents to the family report writer within 7 days of being requested to do so by the family report writer.

5. The Family Consultant has leave to view all material produced under subpoena and released for inspection.

6. The Family Consultant has leave to view all material filed in the proceedings before or after the release of the family report.

7. The Family Consultant be at liberty to contact the children’s school, treating health practitioners and the parent’s treating health professionals.

8. The mother is to cause the children X born (omitted) 2006, Y born (omitted) 2009 and Z born (omitted) 2010 to telephone the father at approximately 6:30pm each Friday or at such other times as the parties agree.

9. The father to telephone the children on at approximately 6:30pm each Tuesday or at such other time as the parties agree.

10. Forthwith the father’s time with the children on Thursday after school be unsupervised.

11. After 6 such occasions as set out in Order 10 the father’s time with the children on Saturday and Sunday be unsupervised.

12. After 6 occasions of unsupervised time on Saturday and 6 occasions on a Sunday the father’s time with the children is to extend from 10am on Saturday until 4pm on Sunday each alternate weekend being the first Saturday after Order 11 has been complied with one of the paternal grandparents to be present for overnight time from 5pm Saturday to 8pm Sunday.

13. After overnight time on 4 occasions all the father’s time is to be unsupervised and to occur each alternate Thursday from 3pm to 7pm in week one and each alternate weekend from 9am Saturday to 5pm Sunday in week two.

14. For the school holidays in December 2015 and thereafter the father’s time with the children to commence at 9am Thursday until 9am Friday in week one and 9am Saturday to 9am Tuesday in week two.

15. The husband is to pay $220.00 per week to the wife, or as she directs by way of interim spousal maintenance.

16. The husband is to sign all documents necessary to permit the wife to be solely entitled to make all arrangements for renting of the property at Property L with an agent of her choosing and with rent from that property to be paid to the wife.

17. Thereafter the wife be responsible for all aspects of the leasing of the property including appointing an agent, entering into a new tenancy agreement with new lessees in the absence of consent or otherwise of the husband.

18. The wife to pay from the rental received, interest on the loan in respect of that property, all outgoings for the property, with the balance to be retained by her by way of a spousal maintenance order.

19. The wife to account to the husband each three calendar months in respect of the rent received for the property, the disbursements paid on the property and the income received and retained by her from the property.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7398 of 2014

MS BYRNES

Applicant

And

MR BYRNES

Respondent

REASONS FOR JUDGMENT

1. The matter of Byrnes was a parenting and property application.

2. The husband sought a sale of property and parenting orders in relation to the parties’ three children, X, Y and Z.

3. The documents I read for the interim hearing were as follows.

   a)The mother’s amended initiating application.

   b)Financial statement and affidavit dated 26 June 2015, together with the case outline prepared by her counsel.

4. For the father, I read.

   a)His case outline prepared by his counsel.

   b)Amended application, minute of the orders he sought.

   c)Affidavit and financial statement filed 18 June 2015 and 15 May 2015.

5. The Independent Children’s Lawyer produced a minute of orders in relation to parenting issues and they formed a part of the evidence at the trial. I was also referred to the financial statement of the husband filed in January 2015 in the course of the trial.

6. As to parenting. The father currently spends time with the children by virtue of orders made by me on 5 February 2015 from after school or 3 pm to 6:30 pm on Thursday, from 11:30 am to 5 pm Saturday and in week 2, from 8.30 am to 2 pm Sunday. His time is to be supervised by one of the paternal grandparents or Ms J.

7. The Independent Children's Lawyer’s proposed minute of order provided that, after the father completed some courses, which I accept he is well on his way to completing, instantaneously the children would spend overnight time with him, and there would be no supervision.

8. I raised with the Independent Children’s Lawyer my concern that such a radical change for the children merely because of the completion of a course may not necessarily be in their best interest, and that a completion of a course does not mean anyone has learnt anything. Further that if time was unsupervised and was to be overnight that there should be some gradual regime rather than it just suddenly happening one day when it had not happened the day before.

9. The Independent Children’s Lawyer, the mother and the father could all see some sense in that.

10. The parties are in agreement in relation to the time the father should ultimately have with the children, namely overnight and unsupervised time. They disagree as to when this should occur.

11. I also read for the mother, in relation to the property dispute, her Exhibit 1, which is a profit and loss statement of the father’s business when he was a sole trader. He has now incorporated his business.

12. Father’s Exhibit 1, were two letters from his current clinical psychologists.

13. I read the Child Dispute Conference Memorandum dated 5 December 2014.

14. There were issues that the mother raised in the CDC memorandum and these continuing in her affidavit of what might be called the father’s frightening behaviour. The mother described aggressive and angry behaviour and family violence during the relationship. She also said he was physical with the children and handled them roughly and in particular with Y, who has difficulty with toileting. The mother said the father would yell at her when she had an accident and this would cause the child further anxiety. This behaviour is an issue the father is addressing by way of attending a clinical psychologist and various courses that I will refer to later.

15. The mother did describe violent, coercive, controlling and rough behaviour by the father to her and the children during the marriage. That is central to her case and she is not certain that this behaviour has abated at this stage.

16. The short history is as follows.

17. The parties commenced cohabitation in 2001.

18. They were married in 2005.

19. X was born on (omitted) 2006, Y on (omitted) 2009 and Z on (omitted) 2010.

20. In 2012, Y developed signs of anxiety and the mother took her to Dr F. The child was bed wetting and not able to toilet without stress, which she had previously been able to do.

21. There are various incidents described by the mother in her affidavit material of the child wetting or soiling herself and the enraged reaction to this rather than trying to understand that there was an issue with his daughter. Of concern to this Court, in particular, given the mother’s allegation of the father’s overzealous and difficult behaviour during the relationship are that the emails attached to the mother’s affidavit from February 2015 to May 2015 and in particular to Y soiling herself.

22. I think in about 15 February 2015 or so, the mother sends an email after the children have returned from being with their father. The mother says:

    Y has a poo in her pants. Said she did it at your house but was too scared to tell you.

23. The father responds:

    That’s not true. We checked before we left. Stop making up stories. She isn’t scared of me at all. Your crazy stories are ridiculous.

24. The mother responds:

    I’m just saying what she told me.

25. The father responds:

    Sure, just like all the other stuff you’ve said in the past. Go away, Ms Byrnes, and focus on the kids. They have been amazing all day. We had a ball. They have laughed and had a great time.

26. The mother responds:

    Great. Glad to hear it, but it’s important you know she said she was too scared to tell you about her accident, so it can be addressed next time.

27. The father responds:

    She isn’t scared to tell me anything. When she opened the door at (omitted) this morning, the first thing she told me was she had an accident, and you had not helped her get changed. That is the truth, so how is she scared to tell me anything? She only seems to have accidents with you. We checked five minutes before we left for home. She hadn’t had one. I love my kids. They love me.

28. Now, despite what the father may think, I find those emails quite offensive. The mother raises a very important issue which has been an issue throughout this relationship and since before 2012. The father does not respond in a way to indicate he accepts what the mother says or understands the position from the child’s point of view; rather, he responds in a way that this is all about him. Well, it is not about him. It is about Y.

29. Therefore, as short a time ago as February 2015 and perhaps continuing, I find the father was still behaving in what I would regard as an overbearing and controlling manner and not showing any respect of the mother as the primary parent of the children.

30. Now certainly these series of emails that I have just read out which were only sent three weeks ago, indicate the father still does not have the best capacity to control his negative view of the mother and that he does have anger issues, particularly where the mother is concerned. Maybe he does not so behave with the children now, but where the mother is concerned, he does, and Y is still suffering from anxiety.

31. Certainly, the mother could have said something like, “Y told me this, but I said, you can tell dad anything, so what do you suggest we do next time?” Perhaps the mother could have responded in that way. The father could have responded with something like, “Thanks for telling me. I checked her before we left. She seemed to not have to go. I will have to have a chat with her about not worrying about it”. Nothing like that comes from the father. Nothing. His response is about the mother making up stories about him. Thus, as I see it he has a way to go to gain some insight. Who suffers from this poor communication? Not the parents, only Y and no one else.

32. These emails support the mother’s position that the father demeans her, takes little notice of her concerns and that they cannot communicate. The mother is not an angel either. In her affidavit at paragraph 49 and 50, I criticised her for her behaviour. For example paragraph 49:

    9 April 2015, Mr Byrnes arrived at (omitted) to collect the children X was wearing a dress, she does not like to wear runners with a dress.

33. The father told X to go and put her runners on:

    Mr Byrnes insisted she change into her runners. He was starting getting obsessed and angry about it. X started crying.

34. I said:

    Can’t she just come wearing her boots? Where are you taking them? Why do they need runners?

35. An argument ensues with the children about runners. Now, the way to resolve that was just give the father the runners. Let him sort it out with her. However, that is not what happened.

36. These children observed their parents again arguing about an absolutely unimportant issue: runners or boots.

37. At paragraph 54, I criticised the mother.

38. The father arrived to collect the children on 18 April to take them to an event. Upon their return the children told their mother they had been taken to (omitted) with Ms Byrnes and her two children. It would have been nice to see in that paragraph words such as, “I said to the children, ‘Did you have a lovely day? It is nice dad took you to a nice place’”. However there was not.

39. So the difficulty as I read each parent’s affidavit is that there is very little positive encouragement by either parent to the children when they are in the other parent’s care. Perhaps the positive encouragement has been omitted or maybe it is never said.

40. The mother is anxious about the children in the father’s care. She has her reasons which are based upon her experience.

41. The father is so obsessed with protecting his honour, dignity or his whatever that he cannot be positive about the mother to the children when in her care, and clearly the children pick this up. The reality is the children love each of their parents.

42. Similarly and as Mr Dura says the father has not made any acknowledgment in his material that, whatever he thinks of his behaviour he accepts his behaviour may have been threatening or frightening to the mother or children or both. It does not matter if the father does not think his behaviour was frightening or threatening. What is important, in family law proceedings, is the reflective parent who can reflect on their behaviour and see how it has had an impact on the children from the children’s point of view or the other parent’s point of view.

43. Not only is there nothing in his affidavit about that, but when I go to Father’s Exhibit 1 a report from his clinical psychologists, which are pleasing at one level being the progress he has made, and the effort he puts into attending these appointments to maximise his parenting and understand, perhaps, where things have gone wrong – the clinical psychologist says he presents as someone who does not have anger management issues.

44. If she read these affidavits, she might have formed a different view. That is a worry because these clinical psychologists can only rely upon what they are told by the person giving the information, which is the father.

45. That does not mean that the father has not taken on board recommendations and therapies as he is certainly engaging in therapeutic intervention. Mr Gould said that is what I should take into account as evidence of his acknowledgment of his poor past behaviour, namely his attendance at therapeutic intervention.

46. However, as night follows days and it is clear in order to maximise the benefit of any therapeutic intervention, one must acknowledge the behaviour for which you are having the intervention. That is still an issue that the father has not specifically addressed to my satisfaction. I take the point he is doing as many things as he could do, that he should do, and I give him credit for his effort but the insight he has gained is likely a matter, perhaps, for a final hearing.

47. The Independent Children’s Lawyer has interviewed the children three times. She says the children are enjoying their time with their father. They are not as frightened of him as they previously were. That comment alone should indicate something to the father. That it is good their grandparents are there. The grandparents calm things down.

48. The father is a large man. He is very big, and whether he thinks it or not he could easily be a frightening person for his children and very threatening to the mother without any intention on his behalf to be that way.

49. It is very important that the parents endeavour to focus on the children’s needs and not themselves in this dispute. Easy for me to say, very hard to do, and I accept the father is undergoing as much therapeutic intervention as he possibly can at this time.

50. If I go to paragraph 34 of his affidavit of 18 June 2015, this is what he tells me:

    In around late February, I began making inquiries with a number of organisations in relation to parenting courses, as recommended by the independent children’s lawyer.

    Around that time, I attended upon my general practitioner, Dr K, and obtained a mental health plan, so I could begin clinical psychological assessment.

51. That process has begun. In late May 2015, he made inquiries in relation to attending an anger management course which he now attends with Dr C who practises in the (omitted) suburbs. I accept the father is taking great strides to attend those courses.

52. I accept the father has enrolled in Parenting After Separation: Focus on Kids and Circle of Security courses. He has been unable to get into the Circle of Security course, but the Independent Children’s Lawyer indicates there may be a spot available in July and the father will take that up. All to the good.

53. The father needs to understand that categorising his behaviour as frightening or not frightening is not a matter for him to assess. It is the impact on the wife and his children of his behaviour that he has to assess, not what he thinks it is and if he can come to that understanding this may make relationships easier for him in the future.

54. The mother says, until he completes all the courses there should be no time in the absence of the grandparents. The mother does not say there should not be any overnight time, but the grandparents should be around. The father agrees that if overnight occurs it will take place at his home, but either his mum or his dad will be there if I so order.

55. The Independent Children’s Lawyer initially put the position that this instant unsupervised time would occur when all courses are completed. I said “Look, the father is doing all he can, all the courses he can attend, and I accept he misses his girls. I accept he misses time with them, and he understands now what it means not to have time with your children but I would prefer a graduated regime of time towards overnight time and unsupervised time.”

56. On the best evidence we have and I stand to be corrected on this – the father may be able to complete the Circle of Security course by about November 2015 even if the father can start the course in July 2015. This is a long period of time for ongoing supervised time be it overnight or not.

1. The father seeks effectively, as much time as he can have alone with the children, and he will accept any time because that is his desire.

2. I am not being asked today to determine whether there should be equal shared parental responsibility. That is a matter for a final hearing. I am still uncertain as to whether that responsibility can be shared if there is not a significant change in the way the father deals with the mother, and having read those emails, it is for him to deal with, not the mother to deal with.

3. Neither parent or the Independent Children’s Lawyer seeks an order for equal time or significant and substantial time and neither order would be practical or realistic at this time and not in the children’s best interest.

4. However, I must now look at the factors under section 60CC(2) &(3) of the Act to determine what orders for time I should make.

5. The orders I propose to make are for regular time weekly time on the weekend and overnight time with supervision slowly diminishing to nothing.

6. I find that the children do benefit from a meaningful relationship with each parent including their father but that they must be protected from what I regard as the father’s overbearing and coercive behaviour in the past, frightening the children, even if he did not intend to so do.

7. Y is a rather sensitive and anxious child and her needs must be catered for. The children wish to spend time with their father. They like the grandparents being there, but slowly, that will change, and the father is the only one who can demonstrate his capacity to care for the children and deal with them appropriately as an insightful and reflective parent.

8. The proposed orders are not too radical a change from the children’s usual time they spend with their father and ultimately will provide alternate weekends and one night during a school week on the off week, as well as an extended time in the school holidays, until we have a final hearing on these issues or unless the parties agree.

9. The mother is, at this stage, the children’s primary carer, and she demonstrates the best insight and understanding into the needs of the children. That has not been traditionally the father’s role. He has been the income-earner.

10. The mother has been the stay-at-home parent, and in those circumstances, I will be guided by the parent who is the primary carer, who has a greater understanding and knowledge of the children. However the father’s desire to be involved in his children’s life is a very good and positive thing and these are the reasons I have made the orders I have.

11. As to the property issues, the husband seeks the sale of the parties’ investment unit at Property L.

12. This investment property has been vacant since April 2015 because the husband wanted to sell it. On his own evidence it was rented for $785 or $780 a week prior to April 2015. That has been the loss of income suffered.

13. The husband says he cannot afford to pay the mortgage on the matrimonial home, child support that he pays, costs of his business, as well as the costs of the investment property, and that selling this property would release much needed funds for the parties.

14. The wife opposes the sale and says that the husband can afford to maintain the matrimonial home, pay maintenance to her, an order she seeks, and continue, as he has always done, to support his family. The wife says that is what he did before they were separated and there should be little difference now.

15. The difference now, I suspect and it is a major difference, is that the husband is determined to rent a property at a cost of $1,550 a week. That was really a matter for him.

16. Going to the material filed, and particularly the financial statements. Despite Mr Gould’s submissions to the contrary, I find the wife, at present, fulfils the criteria under section 72 of the Act, in that she is a spouse, by reason of the care of the three young children of the marriage and the length of the marriage and the lifestyle the parties enjoyed and determined to have in their marriage unable to support herself at present.

17. That will not necessarily be the same position at a final hearing, but at this interim hearing, it is crucial that these children’s usual care regime is minimally interrupted, and they have been used to their mum looking after them all the time and spending time with their dad.

18. The wife has always been the stay-at-home mother, and given their young age – Z is only four – it is important that that is continued, if at all possible. Thus I find she fulfils the criteria as a spouse in need of maintenance being unable to support herself at this time due to that role.

19. Looking at the husband’s financial statements dated 20 January 2015 and 15 May 2015 one can see a significant difference in income. In January 2015 his income is $13,000 a week. His May 2015 statement gives an income approximately $2,000 a week. The difference is that the husband changed his arrangements for his business. He was a sole trader in January 2015 thus all the income from the business came to him. He has now set up a company structure and pays himself a wage.

20. Thus the income earned is now different but that does not mean that the turnover or the income generated from the husband’s clear skills and expertise as a (occupation omitted) has in any way changed or diminished. I understand that the structure has changed and thus the figures are vastly different.

21. The husband says, “Either way I look at it I’m going out backwards.” He says he had a deficit of about $3,000 per week of income over expenditure in the 20 January 2015 financial statement and in the May 2015 financial statement he is going out backwards to the tune of $4,000 a week.

22. He says, “It doesn’t really matter, whichever way you look at it, your Honour, I’m going out backwards. I can’t afford to maintain everything.”

23. However, is he really going out backwards?

24. Mr Dura says no for the following reasons.

25. On 20 January 2015, he had a tax debt of $98,000, it’s now $75,000, a reduction of $23,000.

26. His credit card debt is the same now as it was in January 2015.

27. He still has the same personal loan from his parents of $10,500.

28. More importantly, from looking at the financials of (omitted) attached to the husband’s 15 May 2015 financial statement, which are the most recent and updated financial statements being for the year ended 2013 and reading those figures with Wife’s Exhibit 1 which is the profit and loss for the same period of time to end 30 June 2013, Mr Dura says provide interesting figures.

29. Mr Gould said that the 2013 documents attached by the husband to his financial statement were irrelevant as they are 2 years old and relate to a different business structure. However they are the only documents we have and are the documents he relied upon. So I fail to see the irrelevance of them. This is a document the husband filed to support his case and I will rely upon it. It and Wife’s Exhibit 1 is all we have.

30. The net income from the business was $180,000. The husband now pays himself a wage of $80,000 with the new structure. As I have said, this does not mean that the income from the business is reduced or decreased just there has been a change in how it is paid in what I hope is a more tax effective way.

31. I accept that in 2013 the husband was sharing his income with the wife, which, again, is an effective and proper tax arrangement. That is no longer the case. It is all his income.

32. Looking at the profit and loss and the tax returns for 2013, the gross income for the business was $648,000. Of that gross income depreciation was $9,301, motor vehicle expenses were $6,594, repairs and maintenance $7,135. The husband made it clear that those car expenses relate to his car because he did not claim them in part N of his current financial statement. He claimed no car expenses currently because his business pays for those.

33. However, the depreciation of $9,000 is not an expense and that immediately comes back in as income.

34. Similarly, the husband claimed home office expenses in 2013 for electricity and other costs of $22,000 which, no doubt, will be expenses that continue for the home he is now renting and living in. The expenses were not broken down but were there and claimed as a deduction.

35. When I add $22,000 to the $9,000 we come to the $31,000 which I find is income available from his business after paying necessary expenses for the husband’s business.

36. Further, the husband did not disclose an income from his (omitted) business, which is about $200 a week, or about $10,000 per annum at minimum.

37. Those 3 figures total $41,000. I accept that there is $41,000 that comes back to the husband’s which he can use to fund other things.

38. The husband says at paragraphs 46, 47 and 48 of his affidavit of 18 June 2015:

    I recently sought advice from my accountant after obtaining advice as a varied business structure.

    Upon varying the business structure, I opened up a new bank account in the name of the (omitted). I transferred the amount of $40,000 from the previous business account into the new account.

    The husband took $40,000 out of the business with little effect it seems.

39. That totals $81,000 as available:

    That was to cover wage, bills and other ongoing operating expenses for the business. I have intentions to expand my business. Ms Byrnes is aware we discussed them. Last year I secured finance through a company called (omitted) to enable me to commence renovations. The loan amount is approximately $220,000. I recently signed a new lease for the premises next door and I expect that renovations will commence once we receive the final bank guarantee and Council approval.

40. This is all to the good. I am pleased to see this expansion. However it is totally inconsistent with the husband’s asserted position he is going backwards. It just does not make sense. This is not a man who is foolish with money. He has been careful with money. He is skilled at what he does. He has provided solely for his family. His children and wife live in a comfortable home in a pleasant suburb of Sydney near the beach and have investment property. There was always money to provide for the children.

41. This is not a man who would enter into a loan for $220,000 for renovations and expand his business if he was going out backwards. Thus I have significant difficulty accepting the husband’s asserted figures of how his business is now going, his dire financial position or that he is going out backwards to the tune of $4,000 a week.

42. Thirdly, I find it inconsistent the husband would rent a property at $1,550 a week if he was going out backwards. That, again, is an inconsistent statement with what is actually happening. The husband has failed to make out a case that he is unable to maintain the payments on the investment unit and all the others costs he pays and I accept the wife’s position that she will now take over the renting of that unit.

43. The wife will engage with real estate agents and the husband will sign all documents necessary so she can do that. The wife will only be required to pay the interest payments on the mortgage which mortgage is only some $290,000 being a figure approaching $350 to $400 a week at most, interest only. The rent which she asserts could be $800 a week will provide a surplus and after payment of strata levies and agents fees the wife can use this surplus towards her own maintenance. For reasons beyond my comprehension, the husband has not had a tenant in the property since April 2015, not lived in it himself and income has been foregone.

44. Now, the wife seeks $823 week maintenance for herself. I am satisfied she has made out her need under the Act. The question is does the husband have a capacity to pay.

45. Of the wife’s claim some $300 to $330 will be provided for by the wife from renting out of the unit as best I can determine.

46. Thus, the question for me is can the husband pay to the wife the sum that she will need to get her to $823 if she nets say $330 from the unit. This is a figure of $500.

47. Currently the husband pays the mortgage on the home, the school fees for the children, rates, electricity, car costs, home insurance and activities for the children to his credit. The wife’s claim is for expenses for herself.

48. Whilst the husband is paying all these outgoings, the wife’s need must be moderate. I see little difference in the needs of each parent to support them. At this time caution is important to preserve assets.

49. The husband says he needs about $460 a week for his own personal expenditure. Looking at the wife’s financial statement, I disallow some of the claims she has made. I do not say they are not what she would like to spend, but this is an application for spousal maintenance and has to be reasonable.

50. The claim I disallow is the cleaning of the house at $150. That is just something I do not see is necessary. I reduce her claim for clothing and shoes of $80 to $20, which is what the husband is claiming and holidays to what the husband claims at $35 a week. The claim for repairs to furnishings and appliances, I do not see is an ongoing needs basis at this interim stage which totals $20. I will allow dry-cleaning and I will allow books and magazines.

51. Deducting this from her claim is a figure of some $545 per week of which I find she may receive some $330 from the rental of the property. I find these needs are reasonable.

52. This would leave the husband making up the shortfall of $220 a week. Question: can the husband afford to pay that sum? I find the husband has the capacity to pay to the wife the sum of $220 per week by way of her ongoing maintenance and continue to make the payments he currently does now, including the mortgage on the former matrimonial home.

53. The wife will take over the rental of the parties’ investment property. She will pay interest only on the mortgage and she will account to the husband each three months for the rental received, the outgoings on the property and what she has netted from the property, so that that is all open and known for the final hearing.

54. A copy of the orders about the property and the children will come out to you in the post.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Associate:

Date: 19 August 2015