Dalley and Dalley (No.2)
[2015] FCCA 3518
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALLEY & DALLEY (No.2) | [2015] FCCA 3518 |
| Catchwords: FAMILY LAW – Maintenance – spousal maintenance – where applicant has care and control of two children of the marriage under the age of 18 years – capacity to pay – whether applicant unable to support herself adequately – respondent is on Centrelink benefits – respondent unable to work due to effects of serious head injury – respondent homeless. |
| Legislation: Family Law Act 1975 (Cth), ss.44, 72, 74, 75 |
| Cases cited: Bevan & Bevan (1993) 19 Fam LR 35; (1995) FLC 92-593 Mitchell & Mitchell (1995) FLC 19 Fam LR 44; 92-601 MS & PS [2006] FamCA 588; (2006) FLC 93-268 |
| Applicant: | MS DALLEY |
| Respondent: | MR DALLEY |
| File Number: | SYC 4420 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 9 March 2015 |
| Date of Last Submission: | 9 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ryan (direct brief) |
| Counsel for the Respondent: | Mr McCann |
| Solicitors for the Respondent: | Anderson Lawyers |
ORDERS
The Application for spousal maintenance filed on 9 October 2014 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dalley & Dalley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4420 of 2011
| MS DALLEY |
Applicant
And
| MR DALLEY |
Respondent
REASONS FOR JUDGMENT
Application in a Case
This is an application by the Wife for spousal maintenance. It is opposed by the Husband.
In her Application in a Case filed on 9th October 2014 the Applicant seeks the following Orders:
1. The Applicant Wife seeks by way of spousal Maintenance the sum of $300 per week payable by the Respondent Husband from 28th July 2014.
2. That the Respondent Husband pay the costs of and incidental to the Application.
In his Amended Response filed on 23rd January 2015, the Respondent seeks a number of interim parenting orders, which are not relevant to this Application, and these Orders:
1. The applicant’s Application in a Case filed on 9 October 2014 be dismissed.
2. Further and in the alternative, that the applicant be barred from bringing her Application in a Case so filed or any further Application in respect of spousal maintenance pursuant to Section 44(3) of the Family Law Act 1975.
The Respondent did not press the order under s.44(3) of the Act.
Background
The parties are divorced. There are four children of the marriage, two of whom are under the age of 18 years. X was born on (omitted) 2003 and Y was born on (omitted) 2004.
Evidence and Submissions
The Applicant relied on:
a)her affidavit of 19th September 2014;
b)her affidavit of 3rd November 2014; and
c)her Financial Statement filed on 28th July 2014.
The Respondent relied on the following:
a)his affidavit of 23rd January 2015;
b)his Financial Statement of 23rd January 2015; and
c)the affidavit of Dr W of 8th January 2015.
It is the Applicant’s evidence that the Respondent has provided false information to the Child Support Agency in respect of his income, by failing to disclose his employment and supply tax returns.[1]
[1] Affidavit of Ms Dalley 19.9.2014 at paragraph [4]
The Applicant deposed in her affidavit of 19th September 2014 that the Respondent was employed “about the middle of 2011 until at least about May 2014.”[2] She claimed that she had been “cheated and deprived of meaningful child support for three years.”[3]
[2] Ibid at [5]
[3] Ibid at [6]
The Applicant annexed various documents to her affidavit, being:
a)A print-out of an email dated 14th May 2014 from the Respondent inappropriately addressed to the Judge in whose docket this matter was previously held and incorrectly addressing her Honour as “Magistrate Sexton” in which he stated “I am the respondent and wish to keep August 19 as settlement date. I am putting my children first and am putting an application in case for parenting. Unfortunately I currently can’t afford a settlement barrister. I am currently living at (omitted) paying $530 per week. I am on Centrelink and work [as] a (occupation omitted)”;
b)A Child Support Payee Transaction Statement for the period 24/01/2012 to 14/08/2014 showing total debits for that period as $2,003.14 and total credits for the period also as $2,003.14;
c)A letter to the Applicant from the Child Support Agency[4] dated 17th February 2012 and headed “Request to Reduce Child Support Accepted”, advising her that the Agency had accepted the Respondent’s application to change the child support “as we are satisfied that Mr Dalley’s current income is less than $16,679.00”. The letter went on to tell the Applicant that her ongoing child support amount had been changed to $31.92 per month;
d)A letter to the Applicant from the Child Support Agency dated 3rd April 2012 advising her that the Agency had accepted the Respondent’s request for his child support payments not to be deducted from his salary or wages but to be made directly to the Agency;
e)Other correspondence from the Child Support Agency;
f)A print-out of an email from the Respondent;
g)A letter from Broun Abrahams Burreket Family Lawyers dated 4th May 2012 advising that the Respondent had obtained a new job as a (occupation omitted) with a salary package of $70,000 per annum, giving him a net weekly income of approximately $1,000.00;
h)A report dated 5th March 2013 from Dr C about the Respondent;
i)An email from the Respondent dated 25th April 2013;
j)A report dated 14th May 2013 from Dr R, a neurologist, about the Respondent;
k)A report dated 16th September 2013 about the Respondent; and
l)A balance sheet.
[4] As it then was
The Applicant deposed in her affidavit of 3rd November 2014 that:
a)she was receiving payments from Centrelink as follows:
i)$542.90 per fortnight in Austudy payments;
ii)$455.20 per fortnight in Family Assistance payment; and
iii)$147.98 per fortnight from Centrelink in Rental Assistance payments;
b)She has obtained the degrees of (qualifications omitted);
c)She has been unsuccessful in finding full-time employment but has received casual work from (occupation omitted);
d)She did not accept figures contained in the Respondent’s 2012 and 2013 Income Tax Returns showing gross earnings of $21,117.00 and $36,363.00; and
e)The Respondent had produced no evidence to show that he was unable to work.
In her Financial Statement filed on 28th July 2014, the Applicant provided these figures:
a)Total average weekly income: $680.39
b)Total personal expenditure: $901.00
c)Total value of property owned: $10,035.00
d)Total gross value of her superannuation: $10,265.00
e)Total liabilities: $558,574.00
f)NIL financial resources.
In his affidavit of 23rd January 2015, the Respondent denied a number of the matters raised by the Applicant in her affidavit of 3rd November 2014.
The Respondent deposed that in 2008 whilst he was working in (country omitted) he suffered a serious head injury in a motor cycle accident. He was in a coma for 14 days and underwent brain surgery. He was flown back to Sydney and was an inpatient in the brain injury unit at (omitted) Hospital from 29th September to 7th November 2008. He subsequently returned to (country omitted).
The Respondent deposed that his employer terminated his employment on (omitted) 2008. He sought other employment and obtained a position in about (omitted) 2009. His employment was terminated after five months.
The Respondent obtained another position in about (omitted) 2009 and remained with that company until it went bankrupt in (omitted) 2010. He returned to Australia in late 2010 and sought employment. He obtained work at a (employer omitted) in about July or August 2011.
The Respondent deposed that he sought other employment in 2012 and eventually obtained (omitted) work in late 2012, but he found that work painful and tiring.
The Respondent stated that he was in receipt of Centrelink benefits as at the date of his affidavit in the sum of $396.00 per fortnight. He had been attending an occupational therapist who was undertaking an application for a disability pension on his behalf.[5]
[5] Affidavit of Mr Dalley 23.1.2015 at paragraph [15]
The Respondent also deposed that he obtained rental accommodation in about September or October 2013 at a rent of about $540.00 per week but:
I was evicted after 1 month because I could not pay the rent and I am indebted for approximately $1200.00. Since that time I have had nowhere to live and I have had to live in my Kia Carnival Van.[6]
[6] Affidavit of Mr Dalley 23.1.2015 at [16]
The Respondent also deposed that his condition had changed since his head injury. In particular:
a)his memory has been adversely affected;
b)the right side of his head is scarred, which causes him embarrassment;
c)he has difficulty sleeping; and
d)he has to take regular medication, including an anti-depressant and a sleeping tablet.
The Respondent expressed the opinion that:
If the Orders for spousal maintenance sought by the applicant were made I would be unable to meet that commitment in my current situation.[7]
[7] Ibid at [20]
The Respondent also relied on the affidavit of Dr W of 8th January 2015. Dr W is a general, vascular and trauma surgeon who undertakes medico-legal work. Annexed to his affidavit is a copy of his report dated 20th December 2013.
Dr W’s opinion in his report is that:
He is clearly permanently incapacitated now for the full range of his pre-injury duties.
He is permanently incapacitated for work which involves any kind of focus, concentration, mental acuity and stable behaviour. He presents as very genuine, and he appears clearly to have been attempting to make the best of the difficult situation in which he finds himself post-accident.
Although he is doing his current part-time casual labouring work, it is my opinion that based on Mr Dalley’s education, training and experience I do not believe that Mr Dalley had realistic prospects of returning to regular employment, taking into account the severity of his disabilities and the limitations imposed upon him.[8]
[8] Affidavit of Dr W 8.1.2015 Annexure “A”
In his Financial Statement filed on 23rd January 2015 the Respondent provided these figures:
a)Total average weekly income $198.47
b)Total personal expenditure $243.52
c)Total value of property owned $[9]
d)Total gross value of his superannuation $77,196.80
e)Total liabilities $13,200
f)Total financial resources $Not known
[9] No figure provided
Submissions
The Applicant’s Counsel, Mr Ryan, submitted that the parties’ four children were living with her and she is currently on Centrelink benefits. The former matrimonial home was sold by the (omitted) Bank in 2014.
It was submitted that the Respondent had made no contribution to the maintenance of the family since returning to Australia in 2011. There is no evidence that he is unable to work. He was working in (country omitted) until he had the accident in 2008. There is no evidence of his inability to work in the (omitted) field. The Applicant has worked casually and has been getting more work.
It was further submitted that the most recent Child Support Assessment showed that the Respondent had only been paying child support in the sum of $2.00 per week.
Mr Ryan tendered the following without objection:
a)A Child Support Assessment for the period 1st March 2015 to 30th June 2015; and
b)A letter to the Applicant from the Department of Human Services (Child Support) dated 22nd November 2014 headed Application to Change Your Assessment Declined.
Mr McCann, solicitor, who appeared for the Respondent tendered a written submission and also made an oral submission to the Court. In the latter, he referred specifically to the report of Dr W annexed to his affidavit. He told the Court that the Respondent had been given a disability support pension as from that day, which, he submitted, underlined the Respondent’s case.
Mr McCann referred to the decision of Coleman J in MS & PS[10], a decision on appeal from the Federal Magistrates Court on the question of spousal maintenance.
[10] [2006] FamCA 588; (2006) FLC 93-268
In a comprehensive written submission, Mr McCann referred the Court to the decision of the Full Court of the Family Court in Bevan & Bevan[11], where it was held that an award of spousal maintenance requires:
a)a threshold finding under section 72 of the Family Law Act 1975 (Cth);
b)a consideration of sections 74 and 75(2);
c)no fettering principle that a pre-separation standard of living must automatically be awarded where the Respondent’s means permit; and
d)discretion exercised in accordance with the provisions of s.74 with “reasonableness in the circumstances” being the guiding principle.
[11] (1993) 19 Fam LR 35; FLC 92-600
Mr McCann submitted that the primary question for the Court to determine is whether the Applicant is unable to support herself adequately, not only in the light of the matters set out in s.72 (a), (b) and (c) of the Family Law Act but also by having regard to any relevant matters in s.75(2). Further, a party’s ability to support themselves “adequately” is to be determined by reference to the matters set forth in s.75(2) (see Mitchell & Mitchell[12]).
[12] (1995) 19 Fam LR 44; FLC 92-601
Mr McCann submitted that the Applicant had failed to meet the threshold test required by s.72 of the Act in that:
a)she had failed to adduce evidence that she had the care and control of two children under the age of 18 years;
b)there is no evidence to show her age or mental capacity for gainful employment, quite to the contrary, in fact, as she has given evidence of having qualified as a (occupation omitted) and obtained casual employment as a (occupation omitted); and
c)she has failed to adduce any evidence as to any other reason.
Further, it is submitted that the Applicant has adduced no evidence of relevant matters under s.75(2) of the Act including:
a)the age and state of health of the parties (s.75(2)(a));
b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment (s.75(2)(b);
c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years (s.75(2)(c));
d)the commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself; and
ii)a child or another person that the party has a duty to maintain (s.75(2)(d));
e)the eligibility of either party for a pension, allowance or benefit (s.75(2)(f));
f)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable (s.75(2)(g);
g)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party (s.75(2)(h)); and
h)any child support under the Child Support (Assessment) Act 1989 (s.75(2)(na)).
By comparison, the Respondent has adduced evidence that corroborates his assertion that he is unable to engage in his pre-injury work. He was in receipt of unemployment benefit but, apparently as of the date of the hearing, he has obtained a disability support pension. In addition, he has been homeless, although the obtaining of a disability support pension will place him on a short list for public housing.
The submission is that the application for spousal maintenance should be refused.
The law in respect of spousal maintenance
Subsection 72(1) of the Family Law Act 1975 sets out the tests to be satisfied if a party is to obtain an order for spousal maintenance. It provides that:
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.
Subsection 74(1) of the Act provides that:
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.
Subsection 75(1) provides that:
In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
It is clear that a party seeking spousal maintenance must establish a threshold requirement under s.72(1) before s.74 and s.75 come into play.
Consideration
Under s.72(1), the Applicant needs to establish:
a)that she is unable to support herself adequately;
b)for one of the reasons in paragraphs (a), (b) and (c); and
c)that the Respondent is reasonably able to maintain her.
In my view, the Applicant is able to establish that she has the care and control of two of the parties’ children who are under the age of 18 years. There is ample affidavit evidence that the parties’ daughter X, who was born on (omitted) 2003, and the parties’ son Y, who was born on (omitted) 2004, live with the Applicant. It is unnecessary for there to be a parenting order in force to establish that the Applicant has care and control of the children. They live with her and the Respondent has been seeking orders that will permit him to spend reasonable time with the children.
However, the Applicant has to adduce evidence to show that she is unable to support herself adequately by reason of the fact that she has the care and control of the children. She has, in her Financial Statement at Part N, set out an estimate of her average weekly expenses for the children, showing a total of $639.00.
The Financial Statement was filed on 28th July 2014, but the Applicant has not provided any updated estimate of those expenses in her affidavits of 19th September or 3rd November 2014, so the only inference is that the expenses are unchanged.
However, the Applicant has deposed at paragraph [2] of her affidavit of 3 November that she is receiving fortnightly payments from Centrelink totalling $1,146.98, made up as follows:
a)Austudy $542.90
b)Family Assistance payments $455.20
c)Rental Assistance $147.98.
On those figures, the Applicant is receiving income of $573.49 per week.
Her total weekly expenses as set out in her Financial Statement at Part N amount to $860.00. Clearly, there is a shortfall of $286.51 per week.
Thus, the Applicant has adduced evidence that she is unable to support herself adequately. She seeks an amount of $300.00 per week, which slightly more than the shortfall of $286.51 per week referred to in the preceding paragraph.
The next matter that must be demonstrated is that the Respondent is reasonably able to maintain the Applicant, in other words, that he has a capacity to pay spousal maintenance.
The Respondent claims that he does not have the capacity, relying on the report of Dr W annexed to Dr W’s affidavit.
The Applicant annexed to her affidavit of 19th September 2014 copies of the following:
a)a report dated 5th March 2013 from Dr C, a Rehabilitation Physician; and
b)a report dated 14th May 2013 from Dr R, a Neurologist.
Dr C stated that:
a)the Respondent made “substantial recovery since undertaking inpatient rehabilitation at (omitted) Centre until November 2011”;
b)the Respondent has been troubled by post traumatic seizures which have been controlled;
c)he has been able to return to driving a motor vehicle “and remains seizure free for some two years”;
d)he “found work in the (omitted) industry”.[13]
[13] Affidavit of Ms Dalley 19.9.2014 Annexure “I”
The report of Dr R of 14th May 2013 annexed to the Applicant’s affidavit states that:
a)the Respondent “has been appropriately managed with antiepileptic medications and is now reportedly seizure free for in excess of 2 years and thus eligible to drive”;
b)the Respondent is now employed; and
c)Dr R has “no reservations with him being eligible to both drive and to look after his children”.[14]
[14] Ibid at Annexure “K”
The two reports are comparatively brief and not as comprehensive or as detailed as the Report of Dr W of 20th December 2013. The reports of Dr C and Dr R mention the Respondent’s employment only in passing and appear to concentrate mainly on two issues:
a)the Respondent’s capacity to drive a motor vehicle; and
b)the Respondent’s ability to look after his children.
By comparison, the report of Dr W was prepared for the purpose of compensation proceedings and is a comprehensive account of the Respondent’s history. Dr W’s opinion as at 20th December 2013 was:
He is clearly permanently incapacitated for the full range of his pre-injury duties.
He is permanently incapacitated for work which involves any kind of focus, concentration, mental acuity and stable behaviour…
Although he is doing his current part-time casual labouring work, it is my opinion that based on Mr Dalley’s education, training and experience I do not believe that Mr Dalley has realistic prospects of returning to regular employment, taking into account the severity of his disabilities and the limitations imposed upon him.[15]
[15] Affidavit of Dr W 8.1.2015 at Annexure “A”
Dr W’s report corroborates the Respondent’s own claims that he has been unable to engage in his pre-injury work. His average weekly income has been given as $198.47, although that presumably will change now that he appears to have obtained a disability support pension. This will, apparently, allow him to be placed on the list for public housing. Up to now, on the Respondent’s unchallenged evidence, he has been homeless and living in his van.
Conclusions
The Applicant clearly has a difficult financial situation, with the parties’ two younger children to support and very little by way of child support from the Respondent. It is hardly surprising that she feels aggrieved by this situation.
The Applicant is clearly of the view that the Respondent could do more to obtain gainful employment than he has been doing, but there is no evidence to support that view. It appears to me on the evidence that the Respondent does not have the capacity spousal maintenance, whether it be in the sum of $300.00 or any lesser amount.
As the evidence does not show that the Respondent is reasonably able to maintain the Applicant, the Application for Spousal Maintenance must fail. The Application will be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 13 January 2016
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