DOBEY & SHEY

[2018] FCCA 3808

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOBEY & SHEY [2018] FCCA 3808

Catchwords:
FAMILY LAW – Interim spouse maintenance – interim costs order – orders made in accordance with wife’s application.

Legislation:

Family Law Act 1975 (Cth), ss.72, 75(2), 79, 117

Cases cited:

Bevan & Bevan [1993] FamCA 95

Strahan & Strahan [2009] FamCAFC 166

W & W (Full Court of the Family Court of Australia, Ellis SJ, Bell & Nobbs JJ,

8 February 1980)

Applicant: MR DOBEY

Respondent: MS SHEY

File Number: SYC 2915 of 2018

Judgment of: Judge Henderson

Hearing date: 16 November 2018

Date of Last Submission: 16 November 2018

Delivered at: Sydney

Delivered on: 19 November 2018

REPRESENTATION

Counsel for the Applicant: Ms Bridger

Solicitors for the Applicant: Jo-Anna F S Moy Solicitor

Counsel for the Respondent: Ms Christie SC

Solicitors for the Respondent: Doolan Callaghan Family Lawyers

ORDERS

1. The matter is listed into a call over on 22 July 2019 at 9:30am for the allocation of hearing dates in relation to property.

2. Pending further Order, the husband is to pay to the wife $1,255.00 each week by way of spousal maintenance with first such payment to be made by Friday 23 November 2018 and each Friday thereafter with such sums to be paid into a bank account nominated by the wife. These payments may be made monthly at the husband’s discretion. 

3. Thereafter the wife will be responsible for all outgoings for the Property A property including the mortgage.

4. The husband pay to the wife his 2018 bonus forthwith upon it being paid to him to be paid to the wife by way of interim property distribution.

IT IS NOTED that publication of this judgment under the pseudonym Dobey & Shey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2915 of 2018

MR DOBEY

Applicant

And

MS SHEY

Respondent

REASONS FOR JUDGMENT

1. The matter of Dobey & Shey is an application by a wife for spousal maintenance, of sum $1,255 per week, an interim property settlement or moneys being $43,000 or thereabouts to be paid to her by way of interim property division, as I read it, pursuant to the cost power in 117 of the Act[1], and in the exercise of my power under section 79 of the Act[2]. This is in order for her to pursue the litigation between she and her husband, which is for property settlement.

   [1] Family Law Act 1975 (Cth), s 117.

   [2] Family Law Act 1975 (Cth), s 79.

2. Both applications were opposed by the husband. Ms Christie, Senior Counsel, appeared for the wife, Ms Bridger, Counsel, for the father. I note Ms Bridger is here in Court today to take judgement. The husband lives and works in the Country K at present and has done for some time and at times in the past.

3. The evidence read was quite voluminous.

4. For the wife:

   a)Her Application in a Case filed 9 July 2018;

   b)Affidavits of 29 October 2018, 15 November 2018;

   c)Financial Statement of 20 October 2018.

   d)There was a tender bundle marked exhibit A being the first exhibit.

   e)The second exhibit was a document in relation to the husband’s medical coverage in the Country K.

   f)A case outline prepared by her Counsel.

5. For the husband:

   a)His Response to Application in a Case filed 12 November 2018;

   b)Affidavit of 15 November 2018;

   c)Financial Statement of 12 November 2018;

   d)Tender bundle, marked husband’s exhibit 1;

   e)Exhibit 2, a Bank account showing his bank balance in that account as at August 2018;

   f)Exhibit 3, was an invoice for repairs to a bike effected in Country K, in his possession, obviously; and

   g)Exhibit 4, was the current Bank balance of his savings account.

6. At January 2018, the Bank account had some $95,000 in it. By 14 May, he still had some $97,000 in that account. By August 2018, $41,520, having withdrawn equivalent Australian dollars of $63,823 from that account to pay his legal fees. It currently has a balance of $9400, which is effectively the bond of the parties’ rental property in Country K.

7. Up to June 2018, the husband had paid for all the expenses of his family, as he had always done, mortgage, food, education, medical, insurances, outgoings, maintenance of motor vehicles and the like. This came to an end in June 2018.

8. The wife brought an application in July and by consent it was agreed that she could draw down $100,000 from prepayment of the mortgage on the home in Australia, which is a property at Property B.

9. It is a statement of fact that until June 2018, the husband fully supported his family, as he has always done. This is because this was how the parties lived their life. The wife has not worked in outside paid employment in any real sense – the odd babysitting job, perhaps – since 2003. She was the children’s primary parent and homemaker.

10. The children are now 21/22 and 19. The husband was the income earner in the Country K or Australia. The wife left the Country L to go to Country K, where the husband was employed, came to Australia for his job and back to Country K for the husband’s job. This was a traditional arrangement. The husband has always earnt the income for the family and he is an excellent earner and has provided for his family to a high level.

11. As Ms Christie pointed out, the husband described his wife in his initial application as a homemaker. Yet at this interim hearing, he instructed his lawyers to submit to me that the wife is not within the meaning of section 72 of the Act[3] a wife in need of maintenance because she is unable to support herself adequately having regard to the matters in sections 72 and 75(2) of that Act[4].

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

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

12. The short facts that are relevant.

13. The wife was born in 1965, the husband in 1970.

14. Since 1997 the wife asserts she has been responsible for all parenting and homemaking or the lion’s share thereof. I do not know if that is a disagreed fact. It is not particularly relevant. The wife certainly did forego any employment opportunities, given she travelled with her husband caring for their children to various places where he worked in Country K and Australia.

15. Ms D was born in … 1997 and Mr E in … 1999.

16. The wife worked for [Employer] as a Professional in 1999, and the husband was a Professional for [Employer].

17. The wife stopped working in 2003.

18. The parties moved into the Property A unit in … 2012. The husband commenced his job as a Professional for [Employer]. That, of course, necessitated him being in Country K.

19. The mother earnt some income from 4 December 2015 to 29 September 2018, of $1340, from babysitting. The mother paid the children’s expenses from separation, which date is a contested issue between them, but for my purposes, I might say it is 2015. Of course, that money to pay those expenses was provided to the wife by the husband, because the parties drew down on this joint Bank account and the husband was generous in that regard.

20. In June 2018, the husband cut off the wife’s access to that joint account, and these proceedings ensued. The wife received $93,000 in partial compliance with the 11 July orders. She also paid her legal fees of around $62,000. Otherwise she does not have much of those funds left. The children have all completed high school, obtaining medical professional qualifications and the like, and although perhaps not self-sufficient, are certainly not children under the age of 18 years, and these proceedings commenced.

21. Now, the submission by the husband’s legal team that the wife is a spouse unable to support herself within the meaning of section 72 of the Act[5] is flawed. The manner in which this matter was run and the submissions made not only disregarded how the parties lived and conducted their affairs prior to and for a period of time – certainly up to June 2018 – post-separation but were disrespectful and demeaning to the wife. This is a matter where the husband alone is in control of the parties’ assets. He is the one earning an income and in control of the assets in Country K and Property A.

    [5] Above, note 3.

22. Looking at section 72 of the Act[6] – that section reads as follows:

    [6] Above, note 3.

    A party to a marriage is liable to maintain the other party to the extent that the first-mentioned party is reasonably able to do so if and only if that other party is unable to support herself or himself adequately, whether

    (a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years,

    (b) by reason of age or physical or mental incapacity for appropriate gainful employment or

    (c) for any other adequate reason, having regard to any relevant matter referred to in subsection 75(2).

23. As I see the evidence, the wife fulfils the threshold test at every level save 72(a), “by reason of having the care and control of a child under the age of 18 years”. At separation she had one child under the age of 18 years, but this is not the case today. The reason I say this is as follows.

24. The wife is 53, the husband 48. The wife has not worked for 15 years. She has no relevant training or experience of a recent nature to enable her to enter the workforce at present. I accept she wishes to retrain and hopefully will be successful in regaining a capacity to earn income and support herself, something she has not achieved since 2003. At present, she has no income-earning capacity or a capacity to support herself at any reasonable level. She earnt $1300 in a period of three years.

25. Contra this, the husband. The husband’s income approaches Australian $400,000 per annum. The wife will never earn that income or approach that income in the rest of her working life. Her capacity to provide for her reasonable needs, even if she obtained employment, is doubtful, having regard to the following facts: the length of this marriage, section 75(2)(k) of the Act[7], the standard of living enjoyed by the parties during the marriage, 75(2)(g) of the Act[8] - and I may not have read out when the parties were married which might be an error.

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

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

26. The parties were married in 2014 and have been together since 1997. So the relationship has endured for that period of time.

27. To submit that there was no evidence that this long relationship had affected the wife’s capacity to provide for her reasonable needs was disingenuous and, as I see it, does not properly address the case law, going back as far to the matter of Bevan & Bevan[9], in particular, in relation to interim spouse maintenance claims and the intention of the Act[10]. The evidence here is the fact of the parties’ life. The wife has not worked since 2003. It gets no better than that, therefore, I am satisfied the wife has fulfilled the threshold test.

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

    [10] Family Law Act 1975 (Cth).

28. Going now to the second limb of this argument, the husband’s capacity to pay towards the wife’s reasonable needs, I must assess her needs and they must be reasonable, then his capacity.

29. Her needs, and it was accepted and I acknowledge the acceptance of this, at $1,255 are modest and frugal and would include her paying all outgoings on the Property A property including the mortgage which the husband had been paying

30. Therefore the only issue for me is the husband’s capacity to pay A$1,255 a week to his former wife. The husband has the capacity to pay this amount to the wife, as he always has had, and his financial statement was but a work of fiction, as I read it.

31. He asserts that he spends in A$909 a week for food. The only evidence I have to support this is the wife’s tender bundle from the Bank accounts which were accessed by both parties before her husband cut her off. I see no expenses at all which would support spending $900 a week for food for him and the wife spends $250, and I reject that that this is the level of his expenditure. Of course, he has to buy food. I accept that.

32. He has claimed an amount $683 for house repairs. There are documents attached to both parties’ tender bundles in relation to repairs and renovations to the property now rented which have been carried out. To assert that this will be ongoing into the future is not made out on the evidence, and, again, I see this as disingenuous, and I reject this as an ongoing recurring expenditure.

33. Motor vehicle expenses he claims as $262 a week. I have no evidence what supports this, and I do not see this as a necessary work expenditure. He drives his motor bike to work, and I reject that claim.

34. Maintenance of the car, $310 per week. There is no evidence in relation to that claim and I reject that claim entirely. The husband did supply an invoice, husband’s exhibit 3, dated 26 July 2018 for repairs to a motorbike, $8,499. However, again, as with the house repairs, this is not an ongoing expense. It was a one-off expense, and to assert that this is how much he will continue to pay for his motorbike and or car being $310 a week, is rejected by me.

35. He asserts he spends $14,000 per annum on clothing. I accept the husband must dress to impress. There is no doubt about that. However, he believed that the wife’s request of him for $4000 for clothes for a job interview she went for was ridiculous, and so is his claim for clothing, although I accept he must, of course, spend money on clothing.

36. The husband claims medical and dental and optical cost of $447 per week when due to his contract of employment he is covered for medical expenses and on his own evidence, would appear to also pay additional expenses, being husband’s exhibit 2. There is no evidence to support this expenditure weekly on an ongoing basis. This would be $24,000 per annum.

37. He claims entertainment of $400 per week. That would appear to be excessive in circumstances where you claim you cannot support your former spouse.

38. Chemist, $151 a week. I saw no evidence for the support for that figure.

39. Electronics, $129 which is $6700 per year. I am unclear what that was for.

40. Wi-fi, $79 per week.

41. Cigarettes, $240 per week. That is some $12,000 per annum.

42. Having regard to these claims by the husband of what he says he spends, the wife’s claim at $1,255 per week is modest in the extreme and amounts to some $65,260 per annum.

43. The husband’s assertions are fanciful. He cannot come to this Court and say, “Well, this is what I spend on myself, and therefore I am unable to support my spouse.” Like the wife, his expenditure must also be reasonable and supported by evidence as is necessary, and it has not been having regard, as I see it, to:

    a)The excessive amounts the husband claims he spends on his own personal needs in Country K, a country he asserts in his affidavit is cheaper to live in than Australia;

    b)That his income has, in fact, increased since June 2018 to $287,000 per annum;

    c)that he will receive a bonus of $30,000 in December 2018 as his contract of employment in evidence before me attests and as he attests which amounts to some $41,239;

    d)That his income is actually gross $7,000 per week and not $5,000 as set out in his financial statement;

    e)That according to his contract, his salary will continue to increase; and

    f)The fact is his income is now higher than in June 2018 when he was paying all outgoings for his family.

44. Additionally, the husband was able to save $97,000 by May 2018 in his Bank account, and he was at that time paying all his family’s outgoings without complaint or difficulty. He has been able to pay his legal fees of $65,000 from that account yet says now he cannot afford to support his wife despite the fact his salary and income have increased. That assertion by him is not accepted by me.

45. The husband can and as he has always done continue to support his wife and enable her to retrain for she, too, wants to support herself at a level. I do not see where that level be and it will not be at his level given the years he has been in employment and she has not. He can afford to pay support to his wife into the future and until these proceedings are finalised.

46. As to the next limb of the wife’s application, her interim costs application. There is clearly no doubt under section 117 of the Act[11] that as part of my power under section 79[12], I have the power to order an interim property distribution. Decisions such as Strahan & Strahan[13] and W & W[14] make it abundantly clear where one party holds all the wealth, it cannot be right to lock the other party out of their share of the property.

    [11] Above, note 1.

    [12] Above, note 2.

    [13] Strahan & Strahan [2009] FamCAFC 166.

    [14] W & W (Full Court of the Family Court of Australia, Ellis SJ, Bell & Nobbs JJ, 8 February 1980).

47. If I do not provide the wife with these additional funds - and these monies will always be taken into account in any property distribution - and given she has already spent $62,000 of the $93,000 she received on her legal fees and he has paid similarly legal fees to his lawyers, I will be locking the wife out from being able to pursue her claim. I would be perpetrating a significant injustice upon her. I accept I must find a fund, and the fund is the bonus the husband tells us he is to be paid in December 2018 and I will so order he pays that money to his wife by way of interim property settlement it is about the amount she seeks and I will so order.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 19 December 2018