Conrad and Conrad and Anor (No 2)

[2015] FamCA 422

FAMILY COURT OF AUSTRALIA

CONRAD & CONRAD AND ANOR (NO 2) [2015] FamCA 422

FAMILY LAW – ENFORCEMENT OF ORDERS – Where the wife makes an application for the enforcement of an interim financial order – where the wife also seeks an order for an amount in payment of arrears – where the husband makes an application for the subject order to be discharged – where it is found that the interim financial order was made in the exercise of the Court’s power to make a spousal maintenance order pursuant to s 74 – where the Court has power to vary the order pursuant to s 83 – where it is appropriate to vary the subject order.

Family Law Act 1975 (Cth)

APPLICANT: Ms Conrad

FIRST RESPONDENT: Mr Conrad

SECOND RESPONDENT: Ms Stocks

FILE NUMBER: BRC 5264 of 2013

DATE DELIVERED: 5 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 1 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Harding of Counsel

SOLICITOR FOR THE APPLICANT: Simonidis Steel Lawyers

THE FIRST RESPONDENT: In person

THE SECOND RESPONDENT: No appearance

Orders

1. That paragraph 1 of the Orders of Judge Purdon-Sully of the Federal Circuit Court made by consent on 11 July 2013 at Suburb G is discharged as at 23 March 2015.

2. That until further order the husband shall pay or cause to be paid to the wife for her spousal maintenance the sum of $645 per week with the obligation to do so pursuant to this Order taking effect from 23 March 2015.

3. That the husband shall pay or cause to be paid to the wife within fourteen (14) days of the date of this Order the sum of $7,095 being eleven weeks arrears of weekly payments of $645 from 23 March 2015.

4. The wife’s solicitor shall file a brief affidavit particularising in summary form the wife’s costs and outlays of and incidental to these enforcement and discharge proceedings within seven days of the date hereof and send a sealed copy of that affidavit to the husband by mail to his address for service as soon as it has been filed.

5. The husband shall file and serve any written submissions he wishes to make in respect of the wife’s costs application within three weeks of the date hereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Conrad & Conrad and Anor (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5264 of 2013

Ms Conrad

Applicant

And

Mr Conrad

First Respondent

And

Ms Stocks

Second Respondent

REASONS FOR JUDGMENT

1. On 11 July 2013, in the Federal Circuit Court (“the FCC”) at Suburb G, Judge Purdon-Sully made interim Orders in property adjustment and spousal maintenance proceedings with the consent of the parties. The first order, described as an “Interim financial arrangement”, provided as follows:

   That the husband shall cause to be paid to the wife from the rental received from the property [B Street, Suburb C], the sum of $830.00 per week which sum shall be characterised at the trial of the application for property settlement and in the event of any shortfall in rental income the husband shall pay the difference so as to ensure the wife receive [sic] $830.00.

2. The husband paid that sum of $830 per week from the date of that Order until the payment he made on 16 March this year. On 17 March, he sent a letter to the wife’s solicitors in which he informed them he that did not have the capacity to continue payments of $830 per week pursuant to the Order just referred to.

3. On 30 April 2015, the wife filed an Application in a Case for enforcement of the Order.  That application was listed to be heard by me in the judicial duty list on 1 June 2015. On 25 May 2015, the wife filed an Amended Application in a Case in which she sought an order that the husband pay her $9,960, being 12 weeks of arrears owing in respect of the Order of 11 July 2013 and a declaration that he is obligated to continue paying her the sum of $830 per week.

4. On 26 May 2015, the husband filed a Response in which he sought a discharge of the July 2013 Order, effectively from 16 March 2015. On 29 May 2015, he filed an Amended Response to an Application in a Case in which he sought an order that the wife’s application for enforcement be dismissed due to her failure to have served upon the husband a copy of the brochure titled “Enforcement hearing” fourteen days before the date fixed for the hearing.

5. I heard and dealt with that application of the husband at the start of the hearing. I dismissed it and gave reasons for that dismissal at the time.

6. I proceeded to hear the wife’s application for enforcement of the existing Order and the husband’s application for its discharge on that day.

7. The wife was represented by solicitor and counsel. The husband was unrepresented. He is a qualified solicitor, employed as a lawyer by a Queensland Government department, having until recently been in private practice as a solicitor in his own business.

The nature of the existing order

1. The particular power pursuant to which the FCC Judge made the subject Order was not expressly stated in the Order.  The Order has to have been made in exercise of a statutory power conferred on the Court by a provision of the Family Law Act 1975 (Cth) (“the Act”). As counsel for the wife pointed out at the hearing, it could have been an exercise of the power contained within s 79(1) of the Act to make property adjustment orders or it could have been an exercise of the power contained within s 74 of the Act to make an order for the provision of maintenance to the wife.

2. The Order itself, probably drafted by one or both of the lawyers who represented the parties at the Court on the day it was made in July 2013, does not, on its face, disclose which power the parties intended it to be made under. Clearly, the Judge determined that she was prepared to make the Order in that form without expressly referring to the particular head of power under which it was being made. Of course, that did not invalidate the Order.

3. Given that it included provision that it be characterised “at the trial of the application for property settlement”, it seems apparent that at least one of the parties wished to maintain the ability to argue at the trial of the substantive property adjustment proceedings that it was an order made under one of the particular heads of power as opposed to the other. That may have been the case at the time, and her Honour was obviously prepared, by making the Order in those terms, to countenance that by not stating which head of power she was exercising. However, final orders have not been determined yet, and one of the parties seeks the discharge of the Order prior to that trial.

4. Consideration of the application for discharge of the Order on an interim basis, in my view, necessarily requires determination of the particular head of power under which it was made. That is because there is a specific statutory provision for the modification of a spousal maintenance order (s 83), whilst different considerations clearly apply if it was actually an exercise of the power to make a s 79(1) property adjustment order on an interim basis.

5. In this matter, neither party made particular submissions contending that the Order was an exercise of the spousal maintenance power or an exercise of the power to make property adjustment orders on an interim basis. On the evidence before me, it was common ground that the wife had an application for an interim spousal maintenance order before the FCC on that day in July 2013. In that application, the wife apparently sought an order that the husband pay her a periodic spousal maintenance amount of $1,000. The evidence was that the figure was compromised by both parties to the sum of $830 at the end of a day of waiting for a hearing and negotiations between the legal representatives and the parties.

6. All of the husband’s submissions before me were directed at the issues of the wife’s need for ongoing financial support and his capacity to continue to pay it. In the circumstances, particularly given the weekly periodic nature of the payment to be made to the wife, and the husband’s frank admission that when he agreed to the Order being made in the terms that it was he felt “a personal responsibility to provide some financial assistance in the initial post-separation stage”, I am quite satisfied, that the Order that was made was, in fact, an exercise of the Court’s power to make spousal maintenance Orders pursuant to s 74 of the Act.

7. Accordingly, I am therefore satisfied that determination of the husband’s application to discharge the Order and the wife’s application for enforcement of it, should be made pursuant to the provisions of s 83 of the Act.

8. That section provides:

   83 Modification of spousal maintenance orders

   (1)If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:

   (a)      made by the court; or

   (b) made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court;

   the court may, subject to section 111AA:

   (c)      discharge the order if there is any just cause for so doing;

   (d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;

   (e) revive wholly or in part an order suspended under paragraph (d); or

   (f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

   (1A)    The court’s jurisdiction under subsection (1) may be exercised:

   (a)in any case—in proceedings with respect to the maintenance of a party to the marriage; or

   (b)if there is a bankrupt party to the marriage—on the application of the bankruptcy trustee; or

   (c)if a party to the marriage is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement.

   (2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

   (a)      that, since the order was made or last varied:

   (i)the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);

   (ii) the circumstances of the person liable to make payments under the order have so changed; or

   (iii)in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;

   as to justify its so doing;

   (b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;

   (ba)in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;

   (c)that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.

   (3)Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first‑mentioned order is made for the purpose of giving effect to this Part.

   (4) In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

   (5) The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.

   (5A)In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:

   (a)      the other party; or

   (b)      any other person for the benefit of the other party.

   (6)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.

   (6A)Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date, being moneys that would not have been required to be paid under the second‑mentioned order as varied by the first‑mentioned order, may be recovered in a court having jurisdiction under this Act.

   (6B)Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.

   (7)For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.

   (8)The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

Consideration of s 83(2)

1. I am satisfied, pursuant to a number of the sub-provisions of s 83(2) that it is appropriate to vary the subject Order. It is an Order that was made by consent in the first instance. Since the Order was made, the husband has shut down his private legal practice. On an ongoing basis, he will neither have income nor expenses from running that practice. Further, the wife has, in January of this year, moved in to a different residence, and now lives in a two bedroom apartment near the beach in Suburb D, Region E. For these reasons, I am quite satisfied that a reconsideration of the question of spousal maintenance to be paid by the husband to the wife on an interim basis is justified and appropriate.

The wife’s entitlement to and need for spousal maintenance

1. Pursuant to s 72 of the Act, 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 by reason of having the care and control of a child of the marriage who has not attained the age of 18 years, or by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason, having regard to any relevant matter referred to in subsection 75(2) of the Act.

2. The wife had filed a very short affidavit in her enforcement application, going to the circumstances of the cessation of receipt of payments in accordance with the Order and with no evidence in it that was of assistance in the determination of the question as to whether the spousal maintenance Order should be discharged or varied. At the hearing before me, before the commencement after the luncheon adjournment, a freshly sworn Financial Statement was filed and read by the wife with my leave. The wife also gave some relevant oral evidence in chief with the leave of the Court.

3. The wife’s evidence was that she has no income at all at the moment since the husband ceased making the payments in March. Between July 2013 and March this year, the payments of $830 per week received from the husband pursuant to the Order were her only income. Prior to that Order being made, she had been in receipt of a benefit paid by the Commonwealth Government through Centrelink from the time of separation from the husband, as she had no means of financial support and was not in employment. Her evidence was that she had been receiving $300 per week and that it had ceased upon the making of the July 2013 Order.

4. The wife’s evidence was that she had last been in gainful employment when working in a restaurant that she and the husband ran during the years of their marriage, but that was several years ago. She said that she has been suffering depression since the separation two to three years ago and is on anti-depressant medication. She asserted that when she was living with the husband she was “drinking a lot”, but that this is not a problem now. Her evidence was that she attends upon a psychologist for treatment for her depression and that it is “hard to get a job whilst all this is going on.”

5. The wife’s evidence included the assertion that she had received an inheritance of $150,000 from her late mother’s estate in December 2014.  She accounted for that amount saying that she had repaid a total of $33,300 that she had borrowed from her mother in 2013 and up to May 2014 in order to pay various expenses, including legal fees in these proceedings. She said she had repaid her brother an amount of $25,271.40 from the inheritance for expenses that he had also paid for her in 2013 and early 2014. She said she had also used $15,729.60 of the inherited money to pay other expenses including further legal fees in these proceedings as well as an additional $37,500 to another set of solicitors for legal fees in these proceedings. Finally, she said that she had paid $2,000 in rent in May and another $3,000 to yet another firm of solicitors. The total of all of these payments is $116,801.60.

6. The wife’s evidence was that she still owes one firm of solicitors which had previously acted for her the sum of $42,000 and that she only had $33,199 left from the inheritance with which to meet that liability.

7. Otherwise, the wife deposed that the only property she has is a 50 per cent interest in the property that was the former matrimonial home situated at Suburb F, that she says is worth $450,000.

8. There was no challenge to the wife’s evidence about her current state of health or her inability to obtain employment. In the circumstances, particularly given it is an interim determination that I am making, I am satisfied, given the wife’s age, state of health, and the years that she has been out of the workforce that the wife is currently still unable to support herself.

9. In her Financial Statement, she deposed to paying $400 per week rent for the place she lives in. She also deposed to average weekly expenses of $365 per week in addition to her rent. That did not include any amount for motor vehicle expenses, as she does not have one. It did not include any amount for entertainment or hobbies, holidays, repairs to furnishings and appliances, dry cleaning, books and magazines and gifts. As was submitted by counsel for the wife, the list of the wife’s non-rent expenses demonstrates a reasonably restrained approach to her expenditure requirements. I accept that the $365 in average expenses she particularised in Part N of her Financial Statement were reasonable.

10. However, the evidence about her rental accommodation was, in my view, relevant. The apartment she lives in is one that was owned by her son (of a former relationship and not her marriage to the husband) and an associate of his. It is close to the beach in Suburb D. She moved in there in January this year pursuant to a 12 month lease at $400 per week. Her son and his associate sold the apartment, subject to the lease, to a third person in February this year and now the wife pays her rent through managing agents. The wife denied the husband’s assertion to her in cross-examination that there was some sort of arrangement between her son and her in respect to the 12 month lease that involved her paying more than market rental value for the apartment so as to inflate its value for sale. However, she did agree with the husband that she could have found cheaper accommodation elsewhere in the Region E such as in the suburb of Suburb G. She said she did not want to live there as she did not have a car to get around and it was not as safe a place to live as Suburb D.

1. The wife gave no evidence as to why, when she is in fairly straightened circumstances, she needs to live in a two bedroom apartment by herself or why it is she could not sub-let out the spare bedroom or take in a boarder to help defray the weekly rental cost. I consider therefore that a figure of $280 per week is a more reasonable amount to include in her average weekly expenditure requirements for her accommodation needs. Accordingly, I find that she has reasonable weekly expenditure requirements of $645 rather than $830 that is the amount of the current order.

What of the husband’s capacity to pay?

1. The husband directed his evidence and submissions at this particular issue. In his Financial Statement filed 26 May 2015, he said his gross weekly salary received from the Queensland Government Department for which he works is $2,219. There were two Pay Advice slips tendered into evidence. They were from late March and late May this year. They show that he worked 72.50 hours in those two fortnightly pay periods and he said that is always the same. They showed his rate of pay at $61.23 per hour for the first period and $62.36 for the second. Also tendered into evidence was a page of a bank statement for his personal account into which his net pay is paid on a fortnightly basis. It shows that for the pay periods commencing in late January of this year his net fortnightly pay has been $2,947 but more recently $2,998 and $2,993. The Pay Advice slip for 20 May 2015 is the one that produced the net amount of $2,993 and it was off a gross fortnightly pay of $4,521.20. Accordingly, I am satisfied that a weekly figure of $2,260.60 is the correct amount of weekly gross income the husband should be credited with receiving from his gainful employment.

2. He also included in his Financial Statement an amount of $30 per week as interest received by him on his personal bank account. The bank statement on that account that was tendered into evidence (Exhibit 3) covers the period 30 November 2014 until 23 May 2015 and shows deposit of his salary into that account. As at 30 November 2014, the credit balance was $26,330 or the equivalent of about nine fortnightly pays going into the account. Interestingly, there was no debit of any amount of those salary deposits before 21 March, 2015, which was just a few days after the husband wrote to the wife’s solicitors telling them he did not have the capacity to keep paying the weekly payments pursuant to the existing Order. On that day $69,000 was withdrawn from the account by electronic funds transfer to an account held by a company called H Pty Ltd (“H”). That company is the corporate trustee of the Conrad Family Trust and the husband and one of his sisters are the directors of that company.

3. A further sum of $17,686 was electronically transferred from the husband’s personal bank account into the H bank account on 23 May 2015 leaving only $2,000 in that account. There was a $500 withdrawal from the personal account on 1 May 2015 but nothing other than a $0.65 payment to an unidentified third party from that account apart from the two substantial funds transfers to H. I accept that the interest must be paid by the bank on the funds that accrue in the husband’s personal bank account over time and therefore I include that $30 per week interest the husband deposed to in his weekly income. That takes the amount to $2,290.60.

4. The Pay Advice slip for the last pay period shows the husband paying $651 per week tax per week on his salary. That leaves him with $1,639.60 per week for his expenditure needs. But before I go on to consider his expenditure needs there are some other matters needing to be considered in respect of his income.

5. It is common ground between the parties that the real property situated at B Street, Suburb C is registered in the joint names of the husband and his sister. The property is a block of units that are rented out to generate income. The husband asserted in his evidence relied upon at the hearing before me that he does not own the beneficial interest in the half interest in that property that is registered in his name and that he is not entitled, beneficially, to half the rental income generated by that property.  The husband also adduced into evidence, without objection, a letter from his sister (who is a respondent in the substantive property adjustment proceedings) in which she asserts, effectively, that he does not have a beneficial interest in the property and, therefore, no beneficial entitlement to any of the income.

6. It was clear from the cross-examination of the husband by counsel for the wife, that the wife does not accept the husband’s case that he does not own a beneficial interest in the unit properties at Suburb C. Indeed the position that he does not own a beneficial interest in that property seems, prima facie, inconsistent with evidence he gave in affidavit in 2013 prior to the subject Order being made and also evidence in his Financial Statement that was filed on 10 July 2013 prior to the subject Order being made. In that, he included in details of his income, half of the rental income received on the 3 units at Suburb C which amounted to $415 at the time. In fact, it was the existence of a rental income stream totalling $830 from that property that was the basis for the husband’s agreement to the making of the subject Order that he pay the wife $830 per week, with his evidence being that his sister agreed to let him use that income stream to make the payment to the wife.

7. The evidence that was adduced before me included printouts from an internet banking website that demonstrated transactions in respect of the deposit of three different weekly rental amounts from the Suburb C property into the H bank account. When asked about this, the husband gave oral evidence that H manages the three units as the explanation for why the rent is paid directly to the H account.

8. I simply cannot make a determination at this stage as to the true status of the beneficial ownership of the husband’s registered legal interest in the Suburb C property. In the circumstances, I consider it reasonable, at this stage of the proceedings, to treat half of the rental income received from the units as income of the husband.  The husband has kept financial records of the amount of money that he asserts has been paid to the wife since the July 2013 Order that he says has been directly sourced from his sister’s beneficial ownership of the entire interest in the Suburb C property. He asserts that represents an accumulating liability to his sister, upon which interest is also accruing. If his assertions are all correct, that is a matter that the judge who hears and determines the substantive proceedings will have to consider and deal with. If evidence of the husband and his sister about the matter is accepted, the true position can, I am currently satisfied, be considered as part of the final determination in the property adjustment proceedings. For the moment, I will consider half of the gross rental income as being the husband’s.

9. The evidence was that the rental income on the units has been, until recently, a gross weekly amount of $835. Half of that is $417.50.  The husband gave evidence that one of the units is currently unoccupied whilst a concrete slab is repaired, but he agreed that when the slab is fixed all three units will be re-tenanted.

10. There was absolutely no evidence put before the Court about expenses associated with ownership of the property that come off the gross rental income. The husband asserts, clearly, that those are his sister’s expenses in any event. However, in the absence of any such evidence, I nevertheless consider it appropriate to take expenses of ownership into account and will reduce the $417.50 per week by a notional figure of $57.50 (just under 14 per cent of the gross) and include a net amount of $360 per week in the husband’s income for the purposes of determining this matter.

11. There was not a lot of evidence before me as to the Conrad Family Trust and the husband’s interests in that. He said, in response to some questions I asked him, that the trust is a discretionary family trust that was established by his parents and him and his sisters when he was a young adult. He said that there is no provision in the trust deed for an appointer or a principal who has the sole power to dismiss and appoint trustees. He said he thought that the trust deed simply provided for the trustee to resign and appoint a replacement at the trustee’s discretion. He said that he and his two sisters and all of their children and grandchildren are included in the list of beneficiaries of the trust. He said the trust owns a number or real properties and agreed that as at 24 May 2015 it had $74,695 in a Commonwealth Bank bank account that also has a $10,000 overdraft limit in place.  

12. I am satisfied that bank account is the same one that the rental income from the flats is regularly deposited into and is the same one that the husband transferred a total of $86,686 into in March and May of this year.

13. The husband said he owes the trust around $1,400,000 and that the trust owes his sister $4,000,000 to $5,000,000.  Without adducing any trust documents into evidence for the hearing before me, the husband gave oral evidence that the trustee, H, of which he is a director, pays the monthly bills on the two credit cards that he uses on a day to day basis to meet almost all of his expenses. He also said that the trust pays by electronic funds transfer or B-Pay or cheque transaction for some other of his expenses. I am not in a position to determine that it is appropriate to include any amounts received by the husband from the trust as his income. It appears as if he asserts that the amounts paid by H for his credit card liabilities each month might be amounts set off against income distributions from the trust and that these payments might be contributing to an increase in his liability to the trust. However, it is clear also that his salary earned in employment has been deposited to the trust’s bank account, at least in recent times. The husband did give evidence that he does do that every few months in an effort to cover the amounts paid out on his behalf by the trust. Clearly though, I can be satisfied that the husband does have access to funds held by the trust that come into the trust’s bank account from various sources, including his salary and the rent from the Suburb C flats.  

14. The husband did also own and run a private practice as a solicitor and migration agent until recently. In his Financial Statement filed 10 July 2013, he deposed to earning income of $600 per week from that business in addition to his Government salary. Now, he says he has recently closed that business down and does not earn that income any more.

15. In his Financial Statement filed 26 May 2015, he said that the bank account for that business had $48,896 in it but that after taking into account further expenses associated with the complete shutting down of that business he anticipated having about $20,000 remaining in that bank account. At trial, he agreed when asked by counsel for the wife, that he had estimated additional expenses of about $29,000 to be considered in that process. He then agreed, when shown a copy of the bank statement for that particular account that the balance of the account at the time was actually $57,570 rather than $48,896. Although he then asserted that he really did not expect there to be any funds left after all expenses are finalised, I am satisfied that the figures he deposed to only five days before the trial and then confirmed in the witness box when first cross-examined on the point are figures that I should accept for the purposes of this determination. Accordingly, I am satisfied that the husband expects to have about $28,570 left in the firm’s bank account when anticipated expenses are all paid. I will not add any amount for that to his weekly income though, but rather will just consider it as an asset of the husband’s to be considered in this determination.

16. $1,639.60 and $360 equal just under $2,000. That is the amount I consider the husband has at his disposal to meet his weekly expenditure requirements. I do also acknowledge that, prima facie, the husband would have a tax liability on the $360 income from the flats as well that needs to be considered.

17. Although he put the figure of $401 in his Financial Statement as the amount of superannuation he pays weekly, he ultimately accepted in cross-examination that the amount of his own personal voluntary contribution is $113 per week.

18. The husband included an amount of $900 per week as a mortgage payment to his sister. He conceded that he does not actually pay that amount to her and said that it is simply accruing by way of a debt. Greater consideration of that issue will be the province of the trial Judge. I will not allow that amount as a weekly expense.

19. He agreed with counsel for the wife under cross-examination that the amounts that he included in Part G of his Financial Statement for rates, house insurance, car insurance, health insurance and car registration were all included on the list he also included at Part N and that he cannot claim those amounts twice.

20. The husband also included a payment of $104 per week to his sister in respect of what he described as a personal loan. He conceded that related to the rental income he has been using to pay the periodic payment since July 2013 and said the amount was strictly the interest component. He admitted he does not actually pay that but capitalises it. I will not allow that amount as a weekly expense.

21. He then included an amount of $1,700 as a weekly payment on his Mastercard and an amount of $500 as a weekly amount on his Visa card. He agreed that most of the expenses that he incurs on a day to day basis are charged to one or the other of his credit cards and he could not identify which of the expenses listed in Part N are not paid for on his credit cards. Nor could he state which expenses he has otherwise are paid for on his credit cards.

22. The husband’s list of expenses in Part N set out $1,697 worth of expenses in total. That is consistent with his evidence that his credit card expenditure each month is $6,000 to $7,000. He has attributed $642 of that amount to the two adult children of the husband and the wife who still live at home with him in the former matrimonial home. He has attributed $90 as expenses he is paying for the wife being a half share of expenses associated with the ownership of the former matrimonial home. I will simply attribute that $90 as his expenditure. Accordingly, he claims $1,055 as weekly expenditure.

23. The two adult children are in their early twenties. They are each full-time university students. He provides each with accommodation in the former matrimonial home, food, and a motor car for which he contributes also to the cost of running. He buys clothing and university text books for each of them and pays for their entertainment, their hobbies, their medical needs, their grooming needs and other costs associated with their education save for their HECS fees. He concedes that the parties’ adult daughter has a casual job at which she works on weekends and that she earns something around $26 per hour. He does not know how much she earns per week. He does not ask her to contribute any of that to the expenses he pays for her. She retains all of that for her own use. He said he did not know if their son had any other source of income.

24. He submitted that he has an obligation to support their children as young adult, full-time students. He conceded it is not a legal obligation but argued it is a moral obligation. That may be the case, depending upon your own particular view of what is “moral” and what is not, but the Court is considering the husband’s capacity to contribute towards the financial support of his former wife, at least until the substantive property adjustment proceedings commenced by the wife are determined. The Act establishes his legal obligation to contribute towards her financial support to the extent that she is unable to support herself. With respect to the husband, the Court cannot elevate his desire to financially support his adult children above the obligation to support his former wife that is provided for in the Act.

25. I accept the submission of counsel for the wife that the sum of $642 that he says he spends on his adult children each week should not be considered as part of the husband’s reasonable weekly expenditure requirements.

26. I have determined the husband has weekly income of $2,000 (less some provision for tax on the net $360 rental income) and claims weekly expenditure for himself (and presumably his current partner who, he says, arrived in Australia in November and has not worked since then as she is pregnant with their baby that is due later this month) and claimed expenditure of $1,055 plus his voluntary superannuation contribution of $113. As such, there is a difference of $832 between his income and his own claimed expenditure. It would be a little less when allowance is made for the tax on the rental income.  

27. In my judgment, I do not even have to consider the submissions of counsel for the wife that some of the husband’s claimed expenses should not reasonably be allowed at this point in order to be satisfied that the husband does have the capacity to pay the amount of $645 per week that I have determined are the wife’s reasonable weekly expenditure needs for her continued financial support at this point in time.

28. I am satisfied that paragraph 1 of the Orders made by consent by Judge Purdon-Sully in the FCC at Suburb G on 11 July 2013 be discharged and that it is just, in the circumstances, to make that discharge retrospective to 23 March 2015, a week after the husband’s last weekly payment to the wife. I also consider it just, in the circumstances, to order that the husband pay the wife by way of periodic spousal maintenance the sum of $645 per week, such liability commencing on 23 March 2015, with an order that the arrears that immediately arise on the making of the Order, namely $7,095, be paid or caused to be paid by the husband to the wife within 14 days of the date hereof.

29. At the end of the hearing, I heard submissions from counsel for the wife in support of the wife’s application that the husband pay her costs of and incidental to the application. Counsel submitted that it was the husband’s actions in unilaterally ceasing to pay the periodic amount as ordered that caused the wife to have to bring the enforcement application. It was submitted that if the wife was successful and the husband’s application to discharge was unsuccessful that the wife should have her costs paid by the husband.

30. I reserved my judgment without hearing submissions from the husband in respect of costs. In fairness, he has a right to be heard in respect of the wife’s costs application. I will direct that the wife’s solicitor file a very brief affidavit particularising the wife’s costs and outlays of and incidental to these enforcement and discharge proceedings within seven days hereof and send a sealed copy of that affidavit to the husband by mail to his address for service as soon as it has been filed. I will further direct that the husband file and serve any written submissions he wishes to make in respect of the wife’s costs application within 3 weeks of the date hereof.

31. I make the orders set out at the commencement of these reasons.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 5 June 2015.

Associate:

Date:  5 June 2015