Elgar and Elgar

[2010] FamCA 1042

FAMILY COURT OF AUSTRALIA

ELGAR & ELGAR [2010] FamCA 1042

FAMILY LAW – MAINTENANCE – Interim spouse maintenance

Family Law Act 1975 (Cth) ss 72(1), 75(2)

APPLICANT: Ms Elgar

RESPONDENT: Mr Elgar

FILE NUMBER: CAC 1111 of 2010

DATE DELIVERED: 27 August 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 27 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. O’Shannessy

SOLICITOR FOR THE APPLICANT: Farrar Gesini & Dunn

COUNSEL FOR THE RESPONDENT: Ms J. Haughton

SOLICITOR FOR THE RESPONDENT: Schultz Toomey & O’Brien

Orders

IT IS ORDERED THAT:

1. By way of interim spouse maintenance, the husband will pay to the wife the sum of $1,400.00 per week such payments to be made monthly in advance the first payment to be made on 1 September 2010 in the sum of $6,067.00

   a.   I note in respect of the first of such payments to enable the husband’ financial arrangements with his employer to adequately come into place the sum may be drawn down against the joint account of the parties which is a line of credit on the basis that the sum so drawn down will be repaid by the husband when he receives his next monthly payment in relation to an invoice he renders to his employer or head contractor together with the loss of any interest that would have accrued or which the parties may therefore have to pay or which otherwise would have accrued to the parties.

2. By consent the husband will pay into the joint account of the parties each month such amount as will enable the minimum monthly mortgage repayments in respect of each of the three mortgages for the three properties owned by the parties in whatever proportions is required each month.

   a.   I note in this regard that from the parties’ joint account the agent will deduct his or her commission together with any payments that may need to be made in respect of the two investment properties for rates and the sum necessary for the insurance of the investment properties.

   b.   By way of caution I note that it is agreed and ordered that the wife will pay the rates in respect of the former matrimonial home in which she is living and will pay them promptly. 

3. The sum of $8,400.00 withdrawn by both parties from the parties joint account on 13 July 2010 and paid to the wife is agreed and categorised by her as a sum which is a pre-emptive division of the property of the parties to be taken into account as such in the division of the property of the parties in due course before this Court or by agreement.

4. The reference herein before to the agent withdrawing the amount for rates, insurance and commission from the parties joint account should be taken to mean the agent will only deposit into the parties joint account from the rent collect by the agent that rent less the amounts referred to.

5. By consent and until further order neither party will alter the arrangements either with the agent, except to provide that the agent will make arrangements for payment of the insurance on the investment properties and repairs and maintenance for the property as authorised by the parties, and will not change the arrangements in relation to the bank account save in so far as they may be required by these orders.

6. There be liberty on the part of either party to apply in relation to these orders but in particular on the part of the husband if his capacity to pay is significantly diminished by changes which he foreshadows may occur in relation to his living arrangements.

7. The parties attend in relation to their final property division a conciliation conference probably in November 2010.  In this regard it is noted that it may be the case that the husband is most conveniently to be involved in such conference by telephone or video link.

   a.   If upon completion of the conference the parties are unable to reach agreement I request that the Registrar make such directions about the filing of the material then necessary to enable the matter to proceed to a final hearing early in 2011, possibly in February of 2011.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1111 of 2010

MS ELGAR

Applicant

And

MR ELGAR

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings before me are for interim spouse maintenance. This falls for determination pursuant to the provision of s 72 of the Family Law Act1975 (Cth) (“the Act”).

2. Section 72(1) of the Act relevantly provides:

   (1)  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).

3. In this regard, and (as is appropriate) in interim proceedings, most of the matters under s 75(2) have not been exhaustively examined by the lawyers for the parties or, for that matter, by me.  So far as the lawyers are concerned this is an entirely appropriate and responsible approach for them to take.

4. I have some information which has been the subject of submissions in a global and sensible way by the lawyers pursuant to s 75(2)(b) of the Act (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”).

1. I take account of the matters in s 75(2)(c), being 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”. In the case of the husband this includes his current partner. 

2. I also take account of s 75(2)(g), being the parties’ “standard of living that in all the circumstances is reasonable”.

3. I have also noted the duration of the marriage and the extent to which it has affected the earning capacity of the wife (s 75(2)(h)).

4. I take account of, (in accordance with s 75(2)(o)), the fact that the husband is contributing significantly to the support of one of the adult children of the parties.

5. I also accept, in the circumstances, that what I might loosely term the “adjusted expenses for the wife” (as set out in parts (g) and (n) of her financial statement) are a reasonable exposition of her expenditure.

6. I make clear that my assessment is, in part, dependent upon the fact that these are interim proceedings. In final proceedings if, in fact, an order for continuing spouse maintenance is sought, there are certain items of expenditure that would certainly be the subject of further consideration and, possibly, elimination.

7. These include making any determination or necessarily indicating what any decision about them might be in the future, what the wife spends on her painting, on holidays and superannuation – although that is not part of the claim so far as these matters are concerned.  These are factors which might need to be carefully considered, together with whether or not the cost of having a lawnmower man who is, in the circumstances, a reasonable expense.

8. Equally, so far as the husband is concerned, a number of the expenses that he claims fall into a broad category similar to those sought of the wife.  Some items are more expensive for example, the money he spends on holidays.  But then again, he is living in Papua New Guinea and such holidays might almost be given a “necessary” status.

9. I note also the fact that he will be continuing to pay (by agreement between the parties), the mortgages and rates in respect of their investment properties and will thereby be preserving the capital of the parties for division in due course.

10. I note the husband’s income. I note, in particular, the fact that he has a demonstrated capacity to make the payments being sought.  In saying that, I do not suggest that he is in any way conceding that he is living a life of luxury or that he has vast amounts of money available for these purposes.  It suffices for the purposes of the inquiry I am making this day to come to the conclusion that he has the capacity to make the payments in accordance with s 75(2).

11. Accordingly, to some extent by agreement, but certainly by agreement as to form, I make the following orders and make a determination which is agreed about the categorisation of the sum of money withdrawn from the joint account of the parties with the mutual consent by both parties, on 13 July 2010.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 27 August 2010.

Senior Legal Associate:

Date:  22 November 2010