Court and Court

[2007] FamCA 173

FAMILY COURT OF AUSTRALIA

COURT & COURT [2007] FamCA 173

Family Law – Property- Spousal maintenance

APPLICANT: MRS COURT

RESPONDENT: MR COURT

FILE NUMBER: HBF 1255 of 2007

DATE DELIVERED: 22 February 2007

PLACE DELIVERED: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 22 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B. Ayliffe

COUNSEL FOR THE RESPONDENT: Mr R. Murray

Orders

1. THAT order 8 made by consent on 18 January 2007 be vacated.

2. THAT UNTIL FURTHER ORDER the husband pay to the wife the following maintenance:-

   (a)the sum of $700.00 per week, first payment seven days from today’s date;

   (b)the mortgage repayments on L for the months of February and March 2007;

3. THAT costs of this application of both parties be reserved to the hearing.

   IT IS DIRECTED

4. THAT the wife provide to the husband’s solicitors the original documents set out in paragraph 7 of the said orders of 18 January 2007 noting that the wife is able to retain such copies as she considers necessary.

5. THAT a copy of the reasons for these orders be taken out and placed on the Court file.

   IT IS FURTHER ORDERED

6. THAT the application in relation to which accountant undertakes the work to a Registrar’s Directions hearing at 10.00am on 16 April 2007 at the Family Court Launceston.

   IT IS NOTED

7. THAT as and from April 2007 the wife will be responsible for the payment of the loan repayments and will be responsible for the payment of the rates on the former matrimonial home.

   IT IS CERTIFIED

8. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: HBF  1255 of 2007

MRS COURT

Applicant

And

MR COURT

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Mrs Court and Mr Court, who I will refer to as "the wife" and "the husband" respectively.  They relate primarily to the question of a spousal maintenance claim by the wife.

2. As I understand the competing claims, the wife seeks an order that the husband pay in excess of $1000 per week by way of spousal maintenance. 

3. The wife is seeking is $1138 per week by way of spousal maintenance. 

4. The husband says that he ought to pay spousal maintenance in the sum of $700, which includes the $138 loan repayment so that his total liability is that figure.  That is, as I understand, the extent of the conflict between the parties in regard to spousal maintenance.

5. The husband is aged 49.  The wife is aged 44.  They commenced cohabitation in 1982 and they separated in May 2006 meaning it was a relationship of some 24 years. They have two daughters, one who turned 16 in March and the other who has just turned 13. 

6. These proceedings were commenced in December 2006 and they came before his Honour Justice Carmody in a duty list on 15 January 2007 at which time an interim order was put in place with regard to the mortgage repayments and with regard to payment of money to the wife. 

7. There seems to be an argument as to the nature of this order.   I find that order 8 was an interim spousal maintenance order.  It was ultra vires, the power of the court, to make a child maintenance order, and it does not, on the face of it, seem to constitute a property order.  In any event that order is "until further order" and a further order will be made today so that order will come to an end.

8. The wife is employed by her brother's business as a bookkeeper and has flexible hours.  She earns about $200 per week which is in essence working 10 hours per week.  The wife says that her ability to earn is restricted in three areas.  Firstly, she does not have the earning capacity of the husband.  Secondly, her health is such that she is unable to work more than 10 hours per week.  Thirdly, she has the primary care of the two children of the marriage.

9. The wife set out in paragraph 8 of her affidavit her health concerns, and to some extent they are conceded by the husband, although he raises some issues as to the extent of those health concerns.  There was no medical evidence before me, and frankly I would have been surprised if it have been a significant amount, bearing in mind the nature of these proceedings.

10. The wife, in re-examination, said that she had another health concern, and I suspect everyone in this room hopes that those health concerns are not as serious as they may be, but they are not diagnosed, and if those health concerns do become very serious it is possible to come back and revisit the question of maintenance.

11. I am satisfied that the wife has an income of $200 per week, and I am satisfied there is no reason why she could not work another five hours a week to increase her income to some $300 per week.

12. With regard to the children, I find that the wife has been their principal carer and that is not in issue.  As is often the case in a relationship breakdown, the children find their own level of involvement with their respective parents conflict and I suspect they are trying to do that at the moment, and in doing so, I find that they will be struggling as much as the parents in managing the breakdown of this marriage.

13. The children have been with the husband for about a little under a third of the time since late December of last year.  The husband says that the arrangement is that they are going to spend half the time with him and half the time with the wife.

14. The wife says she really does not know what they are going to do.  It is up to them and having parented teenage children, I understand how difficult it is with children that age, particularly in this case, so I do not know what the end result is going to be as to how much time the children will spend with each of their parents.

15. It seems an agreed fact that the husband is paying school fees of about $15,000 per year.  In terms of his income he earns about $73,000 per year in his employment.  I think the number was actually $72,900.  I find, on the evidence before me, that he earns about $4000 per year additional funds in overtime, having earnt $2000 approximately so far, which gives him a gross income of about $77,000, from which ought to be deducted the approximately $7000 to $6000 in terms of his superannuation contribution.

16. In addition, the parties have two other sources of income.  There is an abalone unit which is owned by the family trust, and I will talk about that later in these reasons.  There is a warehouse, which is also owned by the family trust.  The unit and warehouse derive an income of about $50,000 per year.  As I understand it this trust was controlled by a trustee company until November 2006 which was operated by both the husband and the wife. 

17. In November of 2006 the husband, who has power of appointment, appointed himself as trustee of the family trust, and there is conflict between the parties, as to why this occurred and whether it ought to have occurred.  However, as a result of that the husband now has the control of that income and I note that there was agreement that the income would be liable for tax of about $11,000 per annum.  It is not clear whether that income tax is going to remain at that level or whether it is going to increase because the income from the trust was formerly distributed to the wife whose income tax levels were much lower than that of the husband's.

18. I have two tasks in relation to this matter.  First of all is to determine the reasonable needs of the wife and then apply those against the available income of the husband. 

19. Making this matter much more difficult is that neither party have applied for a child support assessment with regard to their daughters.  The wife, in her financial statement, says that the costs of caring for those two children is some $432 per week and she says that that was calculated on them living most of the time with her.  Some of the expenses with regard to the children seem at some levels a little high and were challenged by counsel for the husband.

20. It is clear that the children are spending more time with the husband now than last year and it seems to me that the reasonable expenses of the children on a weekly basis ought to be about $350 per week in terms of the mother's care of them.

21. If the mother applies for child support she will be provided some level of assistance in terms of the support of the children, bearing in mind the way the parties have now structured their income, where virtually all of the income apart from the wife's earnings, are now in the hands of the husband.

22. The wife's expenses are said to total some $569 per week as set out at page 8.  Two of those figures seem a little high.  Firstly, as clothing and shoes, and I raised that with the wife, and I have no doubt that she was frank in her disclosure to me in regard to the amounts she spent, but in the circumstances of this case, that seemed a little high, similarly hairdressing and toiletries, and it seems to me that they can be reduced and I will do so.  The other expenses are set out on pages 3 and 4 of the wife's amended financial statement. 

23. The parties have a mortgage on the former matrimonial home and other liabilities which, seems agreed, total about $256,500.  There is an issue in relation to a personal loan and a Visa card but at the end of the day that will either be sorted out by the parties in negotiation, or if they are unable to do it, a judge or a federal magistrate will do it for them.

24. Those loans involve the parties in loan repayments of about $364 per week.  However, the parties have sold a property at A for about $160,000 and I am told, and I accept, that the parties will receive about $150,000 and that it is agreed that this sum will be paid to reduce the liabilities of the parties bringing that debt down to about $106,000 or $107,000, and more importantly, reducing the repayments on that loan to about $138 per week.

25. In addition, the wife is liable for the rates on the property in which she is living.  The parties are entitled to a land tax exemption on that property.  The wife has a tax liability of some $22 per week.  She has insurance on the motor vehicle of some $10 per week and claims $60 a week being insurance on the home contents, jet ski warehouse and various. 

26. I find further the cost of the insurance on the house is likely to be about $20 per week.  She pays health insurance of $45 per week which in part covers, in part covers the husband, and in part covers the children. 

27. As I have said during the course of the hearing, I cannot include the expenses of the children in this maintenance order.  It is beyond the powers of this court.  The federal government or the federal parliament have made it clear that child support is to be determined through the Child Support Agency so I allow $20 for the cost of health insurance.  As I have said, I have allowed the registration of the car at $10.  Thus the total expenses for the wife in caring for herself, not the children, amounts, on my arithmetic, to some $768. 

28. The husband earns about $120,000 per year, out of which he has a liability of some $25,000 in tax. 

29. In terms of some of those items the wife claims rates on all of the properties.  The only rates for which she is, it seems to me, likely to pay in the next 12 months are those in respect of the property in which she is living, and I have made comments about the others.

30. In terms of the husband he earns $120,000 per year, from which he will be paying some $25,000 in tax, some $15,000 in school fees, which brings that down to some $80,000 per annum. 

31. He was cross-examined on his expenditure, his cross‑examination showed that he relied on his accountant's and his wife in the past to assist him with figures.

32. It is clear I cannot, and ought not to, order more than the amount that I determine in terms of the needs of the mother in terms of spousal maintenance.  It is how I deal with that vis-a-vis two things:  my finding that the wife has an income of $300 per week and my findings in terms of the needs of the children, I cannot ignore, in terms of the wife's income, that she still has the need to support the children and I do not, and I assume that the bulk of her income, that she actually earns, and that she has the capacity to earn, would be used for that purpose.

33. Accordingly, taking into account all of the facts and the submissions, I make the following orders on the matter of Court:

I certify that the preceding 33 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:     

Date:              5 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Court & Court