COLES & COLES

[2019] FamCA 367

FAMILY COURT OF AUSTRALIA

COLES & COLES [2019] FamCA 367

FAMILY LAW – CHILDREN – Where 15 year old child expresses a wish to not have specific orders for time with the father – Child’s wishes respected - No specific order for time with father.

FAMILY LAW – SPOUSAL MAINTENANCE – Whether the wife is a spouse in need – Spousal maintenance ordered.

Family Law Act 1975 (Cth) s 60CC, 72, 75(2)

Bevan & Bevan [1993] FamCA 95
Hall & Hall [2016] HCA 23
Stein & Stein [2000] FamCA 102

APPLICANT: Ms Coles

RESPONDENT: Mr Coles

FILE NUMBER: SYC 5785 of 2018

DATE DELIVERED: 6 June 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 24 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bridger

SOLICITOR FOR THE APPLICANT: Jo-Anna F S Moy Solicitor

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: York Law Family Law Specialists

Orders

1. The husband is to pay to the wife directly, or as she may direct, the sum of $450 per week by way of spousal maintenance, pending further Order.

NOTATION

1. The Court notes that the time the father seeks to spend with X and to assure her of his genuine desire to maintain a relationship with her is alternate weekends, an evening meal and for holidays.

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 Coles & Coles 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 SYDNEY

FILE NUMBER: SYC 5785 of 2018

Ms Coles

Applicant

And

Mr Coles

Respondent

REASONS FOR JUDGMENT

1. This matter concerned an application by the wife for interim spousal maintenance and an application by the husband in his response for defined orders for time with the parties’ daughter X now aged 15 and to return to the formal matrimonial home if the wife relocates to Country G. A peripheral issue of the child’s school was also raised.

2. There are three children of the marriage. Mr D now aged 21 and X aged 15. Y was tragically killed in a motor vehicle accident in 2017 and this was a profound tragedy for all her family. Mr D has no relationship with his father at present as is evident from the Child Inclusive Conference Memorandum dated 23 May 2019 marked Court Exhibit 1, in which the mother, father, Mr D and X were all interviewed.

3. Miss Bridger of Counsel acted for the wife and Mr Campton, Senior Counsel acted for the husband.

4. The material I read the for the parties as follows:

   a)For the wife:

   i)Affidavits filed 7 September 2018, 28 February 2019, 3 May 2019 and 18 May 2019;

   ii)A Financial Statement sworn 28 February. I did not read the Affidavit of the parties’ son Mr D;

   iii)Wife’s exhibit 1 the wife’s tender bundle being correspondence between the wife’s lawyers and husband’s lawyers, the husband’s tax returns and his various credit card statements; and

   iv)Ms Bridger’s case outline was marked wife’s Exhibit 2.

   b)For the husband:

   i)Affidavits of 30 November 2018 and 1 March 2019 with annexures;

   ii)Exhibit 1 husband’s tender bundle being correspondence between the husband and wife’s lawyers and credit card statements and other bank accounts of the wife;

   iii)Exhibit 2 case outline prepared by Mr Campton;

   iv)Exhibit 3 screen shot of text messages between the husband and X; and

   v)Exhibit 4 wife’s Commonwealth bank Goal saver Account.

The short relevant facts

1. The parties commenced cohabitation in 1993 and married 1994.

2. The parties came to Australia in 1996

3. Z was born was born in1996.

4. In 1998 Mr D was born.

5. In 2004 X was born.

6. Mother was a full-time parent from the birth of Z until 2013.

7. On 23 July 2018 the parties separated under the one roof.

8. On 18 October 2018 a provisional ADVO is issued restraining the husband and for protection of the wife and X and husband left the matrimonial to rented accommodation.

9. The husband pays the mortgage on the matrimonial home and the child’s school fees together with child support which he paid in one lump sum in April 2019 in the sum of $12,307 and is now being paid on a regular basis.

10. The parties’ relationship is extremely poor.

11. It is particularly galling to the husband that between 13 and 17 October 2018 when he was in Canberra, the wife changed the locks on the matrimonial home, caused correspondence to issue to the husband that she would not permit him to re-enter the home and made a complaint to Suburb B police and achieved a provisional ex parte AVO. I accept the submission of Mr Campton an extraordinary order was attached to that AVO namely that X must reside with her mother.

12. The wife makes significant complaints of the husband’s violent behaviour towards her and the children throughout the marriage. Both X and Mr D speak of their father’s controlling behaviour whilst they lived with him. Mr D describes it as so bad it was at the point of being abusive.

13. The parties’ palpable dislike of each other is clear from reading the affidavits. One can only imagine how distressing the marriage breakdown was for each of them and their children. X and Mr D have suffered significant emotional losses in their lives. The death of their older sister, separation of their parents, these proceedings and Mr D has no relationship with his father at present. I describe a tragedy.

14. However, despite the numbers concerning allegations of domestic violence, coercion and control by the father echoed by Mr D at Child Inclusive Conference X perceives she has a relationship with her father and I quote from the Child Inclusive Conference Memorandum:

    [X] said several times that she perceives that she has a relationship which she wishes to maintain. She said she does not want orders in place for her to spend time with her father as she is concerned he will use orders to control her.

15. X was also of the view her mother was moving to Country G as soon as possible. Stated that she wants to change schools and would rather attend boarding school than live with her father. While she does not mind attending therapy she does not like it or find it helpful to meet with her current therapist. Mr D is her greatest support and she has a very close relationship with her brother.

16. The issue of the father’s control of his family is clear and he should take stock and take this on board. Relationships are not about how you perceive you are behaving or treating people but their perception of your behaviour. When all three of your family members use the word ‘control’ to describe your behaviour it behoves you to take this on board and not merely say, as the father does, “X is being told negative things about him” to explain her views.

17. The child lives with her mother and spends little time with her father. I note that the mother was not on the same page as her daughter in relation to value of X’s psychologist or the mother’s plans to live in Country G. It is correct that X wishes to change school but not to a boarding school. This was the option she would prefer to living with her father.

18. The mother has said in court she has no intention of relocating until the proceedings are finished. This is not the position her daughter took and her affidavit evidence led the Court to believe she intended to relocate to Country G this year. Both parents should heed X’s words that her closest relationship is with her brother and not either parent.

19. Having regard as I must to the act and the matters set out in section 60CC(2) and (3)[1] and having regard to X’s level of maturity, age and clear wishes I will respect her wishes. X’s wishes are the evidence that tips me in favour of there being no order for time despite her father seeking defined time which she could veto at her request.

    [1]Family Law Act 1975 (Cth), s 60CC(2) and (3).

20. By respecting X’s wishes the Court will have done its best to ensure X is able to continue a relationship with her father in these very difficult circumstances for the child. To do as the father suggested and make specific orders for time subject to X wishes may well have jeopardised this child’s capacity to have an on-going relationship with her father as the Court would have put in place precisely that which she did not want to occur namely defined orders for time.

21. I will note in the orders the time the father seeks to spend with X to assure her of his genuine desire to maintain a relationship with her.

22. At age 15 X’s wishes must be given weight particularly wishes from a child who is as thoughtful and well able to express clear wishes and feelings. This is the paramount evidence for me and I would be concerned to put in place orders which she has the power to veto for two reasons. The orders would be against the express wishes and secondly may put further pressure on her to choose.

23. Going to the financial issues and the wife’s claim for maintenance. The husband asserts the wife has failed to disclose a bank account into which monies have been transferred from her goal saver account during 2018. The wife through Ms Bridger said the money was used for holidays and the like. These are interim proceedings and it is correct that parties must do their best to disclose their financial position. However, as the evidence unfolded both may have failed to do this as is often the case in interim proceedings.

24. There is a three stage approach set out in section 72[2] namely that a party to a marriage is liable to maintain the other party, to the extent that the first mention party is reasonably able to do so if, and only if, that other party is unable to support herself or himself adequately whether:

    c)By reason of having the care and control of the child of the marriage was not attained the age of 18 years;

    d)By reason of age or physical or mental incapacity for appropriate gainful employment; or

    e)For any other adequate reason having regard to any relevant matter referred to in subsection 75(2)[3].

    [2]Family Law Act 1975 (Cth), s 72.

    [3]Family Law Act 1975 (Cth), s 75(2).

25. The wife was out of the workforce from virtually the date of marriage or certainly late 1994 until 2012/2013, approaching 10 years. The wife is currently working two jobs as a teacher’s aide five days a week divided between two high schools Suburb C and Suburb F.

26. The husband is a professional and he had a stellar rise in his career during the marriage. He was made a manager at E Company in 2007 and made a senior manager in that same company in 2011 and currently earns gross $11,627 per week. He is clearly a successful and talented professional and of value to his company. His career was supported by the wife who maintained the home and cared for three children of the marriage whilst he worked the hours he needed to work to become the successful professional he is today.

27. I find the wife is currently maximising her earning capacity and that her claim falls within subsection 72(c)[4] being unable to support herself adequately for any other adequate reason having regard to any relevant matters referred to in subsection 75(2)(a),(b),(g),(j), and (k)[5] namely:

    i)The age of each of the parties;

    ii)The income property and financial resources of each of the parties;

    iii)Where the parties are separated the standard of living that in all the circumstances is reasonable;

    iv)The extent to which the payment of maintenance to a party whose maintenance is under consideration has contributed to the income earning capacity property and financial resources of the other party;

    v)The duration of the marriage and the extent to which it is affected the earning capacity of the parties maintenance is under consideration.

    [4]Family Law Act 1975 (Cth), 72(c).

    [5]Family Law Act 1975 (Cth), s 75(2).

28. The next stage is to determine what are the wife’s reasonable needs as I accept the submission by Mr Campton having regard to matters such as Hall & Hall[6], Bevan & Bevan[7] and Stein & Stein[8] there must be some evidence to support the contention that a spouse is unable to adequately support themselves and the onus is clearly on the spouse seeking such an order. Going then to Part N of her Financial Statement.

    [6]Hall & Hall [2016] HCA 23.

    [7]Bevan & Bevan [1993] FamCA 95.

    [8]Stein & Stein [2000] FamCA 102.

29. The wife discloses an income of $1,244 gross per week from her own exertions. She additionally receives some $527 per week by way of child support for X. The husband’s income is gross $11,627 weekly. He claims outgoings of $10,076 weekly a surplus of $1,551 weekly.

30. The husband pays all X’s school fees and uniform costs and at times some other expenses such as health insurance. He pays $884 a week for X’s school fees. Having regard to this payment the wife’s claim of $146 per week for the child’s education expenses may not be correct reducing her asserted expenditure for X from $744-$600 a little short of the $527 paid by the husband.

31. I accept that her income is $1,244 gross per annum, however, there is a difficulty in reconciling her expenditure with her income and debt level. The wife asserts she expends $2,936 weekly a shortfall of $1,700 per week with no commencement or resulting debt specified in her material other than at point 53 of her Financial Statement of a debt of $38,312 for unpaid bills and legal fees. There is no breakup of that amount. However, I accept that she has this debt and that this may be where the shortfall is contained.

32. The wife’s claim for maintenance is $2,708 weekly. A spouse maintenance claim is just that, the reasonable needs of the spouse and must be based on her reasonable needs and not that of her children per se. However, some needs of a spouse and children living with a parent are difficult to break up such as gas, electricity, fuel, holidays and entertainment. Other costs such as rates, insurances and motor vehicle registration would be incurred whether the children were living with the parent or not. In these circumstances I will allow the wife the full amount she pays for electricity, gas, insurances and other utilities, holidays, entertainment given a break up of these costs is difficult to achieve.

33. Thus for gas I allow $81, electricity $80, telephone $67, entertainment $200, holidays $150, pets $25 bringing her reasonable needs to $1,583 under Part N.

34. In addition she has fixed costs being tax $70 and registration for her car of $27 bringing her claimed total needs to $1,680.

35. The husband claims his needs at Part N are $809 weekly, although given the wife’s tender bundle being in part the husband’s expenditure on alcohol for example in October 2018 of $220 and in November 2018 of $669, as examples it may well be that his claim of expenditure of $50 per week for entertainment is significantly understated and the wife’s figures she claims of $150 for herself is a more accurate figure.

36. The wife has an obligation to justify her reasonable needs, however, given the lifestyle enjoyed during the marriage, the length of the marriage and that the wife is solely caring for X and that 2 children of the marriage are living with her I find her claimed needs are reasonable in all the circumstances.

37. I accept the wife is maximising her earning capacity at present and that her time out of the workforce in this long marriage has negatively impacted upon her current income earning capacity and this is not the case for the husband. I have found her reasonable needs to be $1,680 per week on the basis that the husband continues to meet the outgoings on the home as he has been doing including the mortgage. The wife earns $1,244 per week gross a shortfall of $436 rounded up to $450. On the evidence presented by the wife the wife does not have the capacity to meet her reasonable needs.

38. The 3rd stage is does the husband have a capacity to pay $450 a week to the wife for her needs? On his evidence in his Financial Statement he clearly does and thus I will make an order that the husband pay to the wife the sum of $450 per week by way of spouse maintenance pending further order.

39. The next issue is the husband’s claim that he should move into the former matrimonial home if the wife vacates the home and departs for Country G.

40. The wife says she is not relocating to Country G and she, like the husband, can holiday overseas if she can afford to do so thereby leaving the home vacant for a period.

41. I am not inclined to make any order that the husband be able to return to the home if the wife is away for weeks, months holidaying. Secondly, it is clearly against X’s wishes to live with her father she would prefer to go to boarding school rather than face that prospect.

42. If, contrary to her assertion in court of her having no intention to relocate to Country G pending determination or settlement of this matter, she does so, the husband can bring a fresh application at that time.

43. I accept, however, the wife’s own affidavit and X’s comments gave the Court the impression the wife intended to relocate to Country G shortly. However, I also accept the assurance from Ms Bridger on the wife’s behalf she does not intend so to do at this time.

44. Lastly the issue of new school for X was peripherally raised. I will make no order in this regard that is a matter for her parents to determine and that important matter was not argued before me.

I certify that the preceding forty-five (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 6 June 2019.

Associate:

Date: 6 June 2019