Fleet and Fleet

[2015] FamCA 1142

FAMILY COURT OF AUSTRALIA

FLEET & FLEET [2015] FamCA 1142

FAMILY LAW – SPOUSE MAINTENANCE – Application by the husband for suspension of interim order for spouse maintenance where final hearing pending – Husband not seeking to reduce payment but seeking to suspend order in its entirety – Discussion of relevant considerations – Application dismissed.

Family Law Act 1975 (Cth) ss 83, 111AA

Mitchell and Mitchell (1995) FLC 92-601

APPLICANT: Mr Fleet

RESPONDENT: Ms Fleet

FILE NUMBER: PAC 1623 of 2014

DATE DELIVERED: 18 December 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 8 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: York Law Family Law Specialists

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Edwards Family Lawyers

Orders

1. The husband’s application for suspension of interim spouse maintenance orders be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fleet & Fleet 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 PARRAMATTA

FILE NUMBER: PAC 1623  of 2014

Mr Fleet

Applicant

And

Ms Fleet

Respondent

REASONS FOR JUDGMENT

Context

1. On 18 August 2014 in the context of ongoing proceedings as to parenting property settlement and spouse maintenance the husband and wife agreed to consent orders that inter-alia provided for the husband to pay interim spouse maintenance to the wife of $1300 per week payable by monthly instalments in advance of $5633 per month pending further order.

2. As the order for interim spouse maintenance was by consent there was no judicial determination as to the wife’s reasonable needs or the capacity of the husband to pay maintenance. The factors relevant to the parties reaching a consent position are simply not known.

3. Proceedings were listed for final hearing commencing on 7 December 2015. Unfortunately the wife was unwell and the trial was unable to proceed. The parties managed to resolve the parenting issues on a final basis and final orders were made by consent as to parenting on 8 December 2015.

4. The parties were granted leave to approach the list clerk for further dates for trial as to the outstanding financial issues.

5. In circumstances where fresh trial dates are likely to be some nine months away the husband made application by way of application in a case filed on 7 December 2015 for the suspension of the interim spousal maintenance order.

6. It was agreed that the application would be dealt with by way of short submissions, the parties having filed their final trial affidavit material.

The relationship

1. The parties commenced cohabitation in 1990 and married in 1995. They separated in October 2013.

2. There are three children of the relationship: B aged 19, C aged 17 and D aged nearly 14.

3. The wife has not worked in a full time capacity for many years. She presently works part time.

4. The husband is employed as an Information Officer on a salary of about $300,000 per annum plus superannuation and a car. He otherwise has interest and or dividend income from various investments.

The application

1. The present application is made under s 83 of the Family Law Act 1975 (Cth) (“the Act”) that relevantly provides:

   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.

2. Section 111AA has no relevance to the present application.

The issue

1. The issue for determination is whether in the exercise of the court’s discretion the interim order for spousal maintenance should be suspended.

Discussion

1. The husband’s argument in relation to the suspension of the order relies upon a change in the wife’s circumstances in the following respects:

   a)A marginal increase in the wife’s income from employment of about $105 per week;

   b)A marginal increase in the wife’s rental income of about $52 per week;

   c)A reduction in the wife’s weekly expenses of about $238 per week;

   d)That the wife was no longer contributing to the cost of the eldest child B who is living independently;

   e)An assertion that the wife was not exercising her capacity for employment fully;

   f)That the wife had not taken up occupancy of the parties’ home at Suburb E but had elected to continue renting accommodation for herself and the children;

   g)That the wife had retained for her own use $159,420 from the parties’ funds in lieu of applying those funds to a mortgage offset account in relation to the mortgage secured against the Suburb E property;

   h)That the wife claimed expenditure of $93 per week as personal expenditure where in fact such expenses were deductible as against her income referred to in (a) above;

   i)That the wife otherwise had capital sums available to her in her own name of approximately $519,274;

   j)That the wife had available to her gifts or interest-free loans from a Mr F that have been applied by her to payment of legal fees; and

   k)That the wife sought by way of final orders ongoing spouse maintenance of $650 per week.

2. It is to be noted that the husband does not seek a suspension of the present order by way of decrease in part but seeks only that the order be suspended in its totality.

3. An order for suspension is an order at the discretion of the court by reason of the provisions of s 83 of the Act. An order for suspension may be appropriate where the inability to pay, or lack of need, is a temporary circumstance. The applicant does not need to demonstrate circumstances that constitute a pre requisite for orders seeking to vary such an order as required by s 83(2).

4. It is well settled that a party is not required to have resort to capital: Mitchell and Mitchell (1995) FLC 92-601.

5. Many of the issues raised by the husband seek to contrast the wife’s financial position at or about the time of making the consent orders with her position as it is disclosed in the context of the trial material filed by the wife. It is contended by counsel for the wife that factors (e), (f), (g) and (i) relied on above by the husband were in existence at the time of the consent interim orders.

6. Even on the matters submitted by the husband, the wife if the order was suspended as sought by the husband would have a significant weekly shortfall and would be required to resort to her capital to meet her expenses.

7. However a determination of circumstances that may give rise to the discharge, suspension or variation of the current interim order awaits a determination on contested evidence where the wife has the opportunity of responding and there are appropriate findings of fact.

8. As pointed out to counsel for both of the parties, if at trial the wife’s circumstances are demonstrated to have changed sufficiently to trigger a backdated variation or discharge of the spouse maintenance obligation then such an order can be made at a final hearing once there has been a determination on the evidence. Any sum repayable to the husband can be adjusted as between the parties. Should he be required to have recourse to his capital in the interim his position if the order is varied or discharged can be remedied as referred to above.

9. In the circumstances discussed above it is inappropriate that the interim order for spousal maintenance be suspended as sought by the husband.

10. The husband’s application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 18 December 2015.

Associate: 

Date:  18 December 2015