Carey and Jacobs
[2009] FMCAfam 1353
•21 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAREY & JACOBS | [2009] FMCAfam 1353 |
| FAMILY LAW – Interim spousal maintenance – whether “reasonably able to maintain” the other party? |
| Family Law Act 1975, ss.72(1), 74, 75, 80(1) |
| DJM v JLM (1998) FLC 92-816 Plut & Plut (1987) FLC 91-834 |
| Applicant: | MS CAREY |
| Respondent: | MR JACOBS |
| File Number: | MLC9363 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 11 December 2009 |
| Date of Last Submission: | 11 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Salamanca |
| Solicitors for the Applicant: | Meerkin & Apel |
| Counsel for the Respondent: | Dr Ingleby |
| Solicitors for the Respondent: | Taussig Cherrie & Associates |
ORDERS
That the husband pay to the wife $300.00 per week interim spousal maintenance for the period 1 September 2009 to 23 August 2010.
That the spousal maintenance be paid monthly in arrears with the first payment to be made on Thursday 24 December 2009.
That the arrears from 1 September 2009 until 24 November 2009 (being 12 weeks) are to be paid in six equal instalments, the first instalment to be paid by 24 January 2010, and fortnightly thereafter.
That the wife’s interim application for her pension benefit to be paid from her entitlement in the [Mr Jacobs] Superannuation Fund is adjourned to the final hearing on 23 August 2010.
IT IS NOTED that publication of this judgment under the pseudonym Carey & Jacobs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC9363 of 2009
| MS CAREY |
Applicant
And
| MR JACOBS |
Respondent
REASONS FOR JUDGMENT
This is an application by the wife for interim spousal maintenance until final determination of the proceedings which is listed for hearing on
23 and 24 August 2010. Mr Salamanca appeared for the wife and
Dr Ingleby for the husband.
The parties married in September 2002 and separated in October 2008.
The wife is 68, and retired in July 2003. She has health difficulties. The husband is 70 and retired. He has an income of $600.00 per week from the [Mr Jacobs] Superannuation Fund and $40.00 per week from casual [work in the Education Industry].
His documents show income as follows:
a)Financial Statement signed 9 September 2009 (Exhibit A2, para.16), $1,116.00 per week being allocated pension of $1,107.00 plus casual tutoring of $40.00. These figures total $1,147.00 per week.
b)The Snowball eWRAP Investment Account statement 10 December 2008 – 10 December 2009 Exhibit A3, shows net earnings of $14,615.44.
c)
The Account Snapshot of the eWRAP Investment Accont – [Mr Jacobs] Superannuation Fund statement 10 December 2008 –
10 December 2009 Exhibit A4, shows net earnings of $72,229.63, which included income of $38,461.34.
Based on (b) and (c) above the husband had an annual earnings for the year December 2008 – December 2009 of $86,845.00: with income of $1,147.00 per week.
The husband had a closing balance in the Snowball account on
10 December 2009 (Exhibit A3) of $81,326.00. The husband claims to have a net weekly income of $357.00 after paying rent. After deducting motor vehicle expenses he has $289.00 per week.
After reducing the husbands allocated pension from $1,116.00 to $577.00 per week (Financial Statement filed 10 December 2009 para.15), he still had an income for calendar year 2009 of $647.00 per week (Ibid 16) plus interest on investments of $14,615.00p.a ÷ 52 = $281.00 per week (Exhibit A3).
Income per week
647
Less rent and motor vehicle expenses
–
$289 per week
Plus income from investments
281 per week
Balance per week
$570
Dr Ingleby conceded that the wife’s claim for $300.00 per week is not excessive and represents the amount that most people would require to live on. Dr Ingleby did not argue that the wife should return to work.
Section 72(1) of the Family Law Act 1975 (the “Act”) provides:
(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).
Dr Ingleby’s argument centered on submitting that the husband is not “reasonably able to” maintain the wife. He did not argue that the wife is able to support herself adequately. In any event, the Court finds that the wife is not reasonably able to support herself. She has little or no income, a debt to her daughter of $30,000.00, and a debt to her brother of $3,000.00
Section 74 of the Act provides:
(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.
(2)If:
(a)an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b)either of the following subparagraphs apply to a party to the marriage:
(i)when the application was made, the party was a bankrupt;
(ii)after the application was made but before the proceedings are finally determined, the party became a bankrupt; and
(c)the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and
(d)the court is satisfied that the interests of the bankrupt's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the bankruptcy trustee as a party to the proceedings.
(3)If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.
(4)The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances.
(5)If:
(a)an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b)either of the following subparagraphs apply to a party to the marriage (the debtor party ):
(i)when the application was made, the party was a debtor subject to a personal insolvency agreement; or
(ii)after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and
(c)the trustee of the agreement applies to the court to be joined as a party to the proceedings; and
(d)the court is satisfied that the interests of the debtor party's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the trustee of the agreement as a party to the proceedings.
(6)If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement.
(7)The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances.
(8)For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when:
(a)the application is withdrawn or dismissed; or
(b)an order (other than an interim order) is made as a result of the application.
Section 75 (1) provides that in exercising jurisdiction under s.74, the Court shall take into account only those matters referred to in sub-s.2.
At 75(2) includes:
(b)the income, property and financial resources of each of the parties…
On the husband’s income figures he is reasonably able to pay the wife spousal maintenance of $300.00 per week.
Dr Ingleby submits that in assessing spousal maintenance the Court cannot have regard to finances other than income. He referred the Court to the decision in DJM v JLM (1998) FLC 92-816 at [17.16] where the Full Court stated that many of the subsections in s.75(2) make sense in the context of one of those three applications, (spousal maintenance, child maintenance and alteration of property interests) and not the others. He does not submit that the decision states that the Court cannot have regard to property and financial resources when considering spousal maintenance.
Mr Salamanca submits that the Court should have regard to those matters. He points out that under s.80(1)(ba) when a Court is dealing with an application for spousal maintenance it may
“order that a specified transfer or settlement of property be made by way of maintenance for a party to the marriage.”
He pointed out that s.80(1)(h) gives jurisdiction to make an order for spousal maintenance pending final disposal of the proceedings.
Section 80(1)(k) gives jurisdiction to
“make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice.”
The wife seeks interim spousal maintenance of $300.00 per week from the date that the husband ceased paying that amount to her, (being from
1 September 2009_ to the date of the final hearing of these proceedings on 23 August 2010. The claim is therefore for $300.00 per week for 51 weeks, a total of $15,300.00. The wife had income of $471.00 in 2008
(Tax Return for 2008 Exhibit R1) and there is no evidence of any income since. To meet her expenses she has borrowed $30,000.00 from her daughter and $3,000.00 from her brother.
The wife does not have the care and control of a child of the marriage and it is not contended that she should be in gainful employment s.72(1)(b).
The issue is whether the husband is reasonably able to maintain the wife [s.72(1)]?
The Court finds that pursuant to s.72(2) it can have regard to:
·The allocated pension of $577.00 plus casual [work in the Education Industry] of $62.00 per week = $639.00 per week.
·Plus the earnings in the investment account for the 2009 calendar year of $14,615.00 (÷ 52 = $281.00 per week)
Considering the figures including the above, the husband has a weekly income after rent and car expenses of approximately $570.00. He is therefore “reasonably able to” maintain the wife to the extent of $300.00 per week.
That sum will help her have no more than a standard of living that in all the circumstances is reasonable s.75(2)(g).
Having regard to the finding that the husband is reasonably able to pay the wife $300.00 per week out of his income, it is not necessary to decide the issue of payment out of property and other financial resources.
The husband paid the wife $1,300.00 per week for expenses from the date of separation until 1 September 2009. She has found it difficult to manage since the payments ceased.
The Court decides that an order that the husband pay the wife $300.00 per week interim spousal maintenance from 1 September 2009 until
23 August 2010 is proper for the provision of maintenance under Part VIII of the Act, and is necessary to do justice. The husband failed to support his wife from separation until 1 September 2009 in breach of s.72 of the Act.
The maintenance is to be paid monthly in arrears with the first payment to be made on Thursday 24 December 2009.
The arrears from 1 September 2009 to 24 November 2009 are to be paid in six equal instalments, the first to be paid on 24 January 2010.
Claim three in the interim orders sought in the Initiating Application is that the husband do all things…to ensure that the wife is paid her entitlements in the [Mr Jacobs] Superannuation Fund. Superannuation entitlements are property. This claim is for an interim property settlement under s.79 and to the extent, if any, that a claim for final orders is made as to the wife’s interest in the superannuation fund, that claim is adjourned to the final hearing on 23 August 2010.
The Court makes orders accordingly.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Erin Firns
Date: 21 December 2009
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