FOLEY and FOLEY
[2016] FCWA 68
•3 AUGUST 2016
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: FOLEY and FOLEY [2016] FCWA 68
CORAM: WALTERS J
HEARD: 5 JULY 2016
DELIVERED : 3 AUGUST 2016
FILE NO/S: PTW 2934 of 2015
BETWEEN: MR FOLEY
Applicant
AND
MS FOLEY
Respondent
Catchwords:
FAMILY LAW – Interim spousal maintenance – pre-separation standard of living – case turns on its own facts
Legislation:
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
Applicant: Mr Hooper SC
Respondent: Mr Hedges
Solicitors:
Applicant: Law Firm A
Respondent: Law Firm B
Case(s) referred to in judgment(s):
Bevan & Bevan (1995) FLC 92-600
Brown and Brown (2007) FLC 93-316
Hall v Hall (2016) 90 ALJR 695
Mitchell & Mitchell (1995) FLC 92-601
Pastrikos & Pastrikos (1977) 31 FLR 524
Redman & Redman (1987) 11 Fam LR 411
Robinson and Willis (1982) FLC 91-215
White & White (1995) FLC 91-648
Williamson & Williamson (1978) 4 Fam LR 355
Wilson & Wilson (1989) 13 Fam LR 205
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1Before the Court is the wife's application for interim spousal maintenance and related orders.
2At the outset, I note that the parties have agreed that the threshold test imposed by s 72 of the Family Law Act 1975 (Cth) ("FLA") has been met and that the wife is entitled to receive spousal maintenance.
3It has also been agreed that the husband will pay a large number of expenses associated with the parties' properties, the wife's car and their children.
4The primary area of dispute relates to the quantum of spousal maintenance the wife is to receive over and above the expenses the husband has already agreed to pay.
5The wife seeks $3,000 per week "less any periodic child support that may be assessed… while this order is in force". The husband seeks orders that he pay $1,868 per week, less child support. This amounts to a dispute between the parties over something in the order of $60,000 per annum.
6The wife has sought to justify her claim by producing an exhaustive (and exhausting), labyrinthine schedule of her claimed expenses – which is based on annexure A to her financial statement sworn 13 March 2016. The detail into which she has delved is startling. The schedule and the immoderate particularity contained in the wife's affidavit material reflect a troubling degree of single-mindedness on her part. That her legal advisers saw fit to present her claim in this fashion is unfortunate.
7Lawyers act on instructions, but perhaps it is worth pausing to revisit the comments made by Muirhead J over 40 years ago when speaking of the obligations of legal practitioners in this jurisdiction: see Pastrikos & Pastrikos (1977) 31 FLR 524 at 526, cited in White & White (1995) FLC 91-648, at page 82,558:
The philosophies of (the FLA) are clear and should be borne in mind not only by judges but by counsel and solicitors. It is true that the adversary system remains in the processes of determining contested issues. But the legal profession act as advisers, they are more than mouthpieces, more than puppets reacting to instructions. In this jurisdiction, the functions of this Court are not often understood by parties in dispute. A bit of sound common sense and dispassionate legal advice will often go a long way in solving the issues confronted by people who have temporarily lost their sense of proportion ...
8In my opinion, the parties in this case have certainly lost their sense of proportion.
9The husband argues that certain items in the wife's schedule of expenses should not be included; he also argues that that the wife has exaggerated the amount she requires in respect of other expenses in the schedule.
10The parties also disagree about a handful of other matters. For example, there is disagreement about how much the wife should receive in respect of holidays for herself and the children. The husband says an appropriate quantum is $12,000 per annum, with an additional $100 per person, per day as spending money. The wife seeks $18,000 per annum.
11Similarly, for reasons which are wholly unclear (but which appear to have more to do with peevishness than parsimony), the husband has agreed to pay the Foxtel subscription for the home in which the wife lives with the parties' children, but refuses to pay the additional costs associated with new release movies.
12Regrettably, the parties also cavil about pharmacy costs – or, more accurately, the pharmacy at which such costs may be incurred. The husband has agreed to pay the costs associated with medication and medical supplies purchased at [Suburb N Pharmacy] ("the nominated pharmacy"), but not elsewhere. The wife wants all her pharmacy accounts to be covered (irrespective of the pharmacy she may elect to attend).
13Of more significance is the husband's objection to paying the outstanding balance on the wife's National Australia Bank credit card account.
Hearing on 5 July 2016
14The matters in dispute were argued on 5 July 2016. Mr Hedges appeared for the wife. Mr Hooper SC appeared for the husband. At the commencement of the hearing, a joint Minute of Proposed Orders was handed up. At my request, counsel had highlighted those aspects of the Minute that were not agreed, and it was to those matters that argument was directed.
15Unfortunately, and impermissibly, the orders contained in the Minute commingle the issues of spousal maintenance and child support. The fact of the matter is that no valid application relating to child support was before the Court, no relevant evidence relating to child support was presented and no submissions relating to child support were made. The structure of the orders sought in relation to spousal maintenance purport to be inclusive of child support. This approach is both legally and practically unsound, and has exacerbated the already difficult task confronting the Court in dealing with what is no more than an interim arrangement. I shall deal with this subject in more detail later in these Reasons.
Documents relied upon
16The wife relies upon the following:
a)her affidavit sworn 13 March 2016 ("WA1");
b)her affidavit sworn 29 June 2016 ('WA2"); and
c)her financial statement sworn 13 March 2016.
17The husband relies upon the following:
a)his affidavit sworn 1 July 2016 ("HA");
b)his affidavit sworn 2 March 2016; and
c)his financial statement sworn 2 March 2016.
18Mr Hedges provided a summary of argument at the commencement of the hearing on 5 July 2016. As is usual in interim proceedings, no oral evidence was given and the parties were not cross-examined.
19A joint schedule ("the Schedule") was handed up during the course of the hearing. It provides a breakdown of the wife's alleged weekly expenses and has been annotated by the husband's solicitors. The annotations are for the purpose of identifying which items are or are not in dispute.
20Also handed up was the wife's Minute of Orders Sought, the areas of disagreement between the parties having been highlighted. This minute was sourced in the husband's Form 1B Reply to Initiating Application filed 1 July 2016. I shall refer to it as "the Primary Minute".
Overview
21The husband was born [in] 1972. It follows that he is now 44. The wife was born [in] 1972. She is now 43.
22The parties married [in] 2000. They separated on 29 April 2014 and divorced on 8 September 2015.
23There are four children of the marriage: [Child A], aged 15, [Child B], aged 13, [Child C], aged 11 and [Child D], aged 8.
24Child D suffers from [a medical condition].
25The children live with the wife and spend time with the husband. The three boys spend more time with the husband than does Child D.
26The husband has been assessed to pay $604.85 per week by way of child support for the period 2 March 2016 to 1 June 2017.
27The financial dealings between the parties are complex. I do not intend to provide an exhaustive history. It is sufficient to touch upon only those matters which are relevant in the present proceedings.
Background
28The husband is a very experienced legal practitioner. He is the Managing Partner of [a Law Firm] ("the Firm"). He has a 10% interest in the Firm. The wife is not employed.
29It is apparent from the affidavit material that, prior to separation, the parties lived in very comfortable circumstances.
30The wife currently lives with the children in the former matrimonial home at [Property A] ("the House"). The House is valued at approximately $3,500,000.
31The husband rents a property for $1,800 per week.
32Through a family trust, the parties also own a property at [Coastal Town B] ("[Property B]"). Property B was purchased as a holiday home. The parties appear to have intended to use Property B themselves on occasion and to let it out as holiday accommodation at other times. Property B is encumbered by a mortgage. It is not in dispute that Property B should be sold. According to the husband, the sale price is unlikely to be sufficient to discharge the mortgage.
33From the date of separation until 18 May 2015, the wife had virtually unfettered access to all the parties' property. The husband says that, at this point, he became concerned about the wife's "increasingly excessive" expenditure: see HA at [49].
34The wife describes the husband as "cutting off" her access to funds at that time: see WA2 at [6].
35Thereafter, the husband provided the wife with what essentially amounted to an allowance, and paid a number of accounts directly. I made comments at the hearing about the husband's rather patriarchal approach in undertaking such a course of action. I see no need to repeat those comments.
36Between 18 May 2015 and the date of the hearing (5 July 2016), the husband continued to provide to the wife various amounts by way of spousal maintenance, and to pay other accounts directly. His payments have varied over time, but I do not intend to trace the relevant movements. Suffice it to say that, at the date of the hearing the husband had been paying, and has agreed to continue to pay, the vast majority of the expenses allocated to him in the Primary Minute. These expenses are set out in more detail below.
37The wife does not accept the amount the husband has offered to pay in respect of a number of categories in the Primary Minute. Further, and as I have indicated, the wife seeks that the husband pay all pharmacy accounts (irrespective of the pharmacy she may attend).
38The husband has also agreed to pay the wife's legal fees on a dollar for dollar basis. Although she says that this has been insufficient to cover her costs, the wife does not press the issue at this time.
39The wife submits, however, that the total amount the husband has agreed to pay falls far short of her reasonable needs.
Intermingling of spousal maintenance and child support
40It appears to be a "given" that the husband will pay whatever periodic child support may be assessed while the order for spousal maintenance is in force. In addition, he has agreed to pay a very long list of additional expenses for the children. The most significant of these comprises the children's private school fees.
41The Court does not have power to make orders relating to the maintenance or support of the parties' children other than pursuant to the provisions of the child support legislation. That legislation is concerned with ensuring that children receive a proper level of financial support from their parents: see, for example, Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act"), s 4. True it is that the Assessment Act must be "construed, to the greatest extent consistent with the attainment of its objects, to permit parents to make private arrangements for the financial support of their children" (see s 4(3)), but that does not mean that the Court can ride roughshod over the processes described in the Assessment Act and the Child Support (Registration and Collection) Act 1988 (Cth) – and, in this case, the parties have not entered into a formal child support agreement.
42It is unnecessary to summarise the effect of the child support legislation in any great detail. Child support is defined in the Assessment Act as meaning "financial support under this Act, including financial support under this Act by way of lump sum payment or by way of transfer or settlement of property": see s 5(1). It can be paid otherwise than in the form of periodic amounts, even if lump sums are not involved. Division 4 of Pt 7 of the Assessment Act deals with courts' powers to make orders departing from administrative assessments of child support. These powers are not unlimited, and are conditional. Assuming an application for a departure order is properly made, a court must be satisfied as to the various matters set out in s 117 of the Assessment Act before proceeding to make such an order. The orders that a court can make under Div 4 are set out in s 118. Similarly, Div 5 of Pt 7 of the Assessment Act deals with courts' powers to make orders for the provision of child support otherwise than in the form of periodic amounts paid to the person entitled to receive child support. Again, these powers are not unlimited and are conditional. If a court is minded to make orders of this nature, it must (for example) state the relationship between the proposed order and any assessed child support: see s 125.
43I am not satisfied, therefore, that the approach to the issue of interim spousal maintenance reflected in the Primary Minute is either valid or principled. It is implicit within the proposed orders that the quantum of spousal maintenance will vary in accordance with changes to any assessment of the husband's obligation to pay periodic child support. In other words, if the husband were assessed to pay more by way of periodic child support, then the quantum of interim spousal maintenance would reduce – irrespective of the wife's needs or the husband's capacity to pay. Similarly, if the husband were assessed to pay less by way of periodic child support, then the quantum of interim spousal maintenance would automatically increase. These variations would occur irrespective of the Court's findings regarding the quantum of interim spousal maintenance it considers proper: see, for example, FLA s 74(1).
44In the circumstances, I have approached the wife's application for interim spousal maintenance as a discrete application, separate from child support issues. If the wife seeks additional amounts from the husband to meet periodic or non-periodic or lump sum payments relating to the maintenance or financial support of the children, then her claims in that regard must be considered within the framework of the child support legislation.
45In practical terms, the approach I have adopted requires the Court to remove passages in the Primary Minute dealing with child support issues and include them in a notation. It also requires the Court to specify the quantum of interim spousal maintenance payable by the husband (whether directly to the wife or to others for her benefit) exclusive of any assessed child support.
Restructured Minute
46In addition to rearranging and restructuring those parts of the Primary Minute which deal with child support, I have highlighted the areas of dispute between the parties (as indicated during counsels' submissions). The reconstructed Primary Minute ("the Restructured Minute") is as follows:
Spousal Maintenance
1.Pending disposal of these proceedings, the husband pay or cause to be paid to the wife as and by way of spousal maintenance the sum of $3000 or $1868 or such figure as the Court shall deem appropriate per week.
2.Pending disposal of these proceedings, the husband pay or cause to be paid, as and by way of spousal maintenance, as and when they fall due:
a)In respect of [the Home]:
i)loan repayments for the NAB loan account number [xx-xxx-xxxx];
ii)City and Water rates and taxes;
iii)premiums payable to Vero for home and contents insurance;
iv)electricity (Synergy);
v)gas (Alinta);
vi)Intelligent Home security monitoring; and
vii)Zip Industries Zip tap maintenance and service, as and when recommended by Zip Industries.
b)The following reasonable and necessary expenses for [the Home] on the basis that the wife is to negotiate with service providers and obtain quotes for services to be provided and, if strictly necessary, provide copies to the husband and jointly authorise work to be done:
i)service of air-conditioning units, once per year;
ii)plumbing;
iii)electrical;
iv)window cleaner, three times per year;
v)gardener;
vi)lawn mowing;
vii)Pest control, twice per year;
viii)pool service and repairs and including maintenance of the pool equipment; and
ix)IT related repairs and maintenance as and when reasonably required.
c)Up to $5000 per year for reasonable and necessary maintenance and repairs at [the Home] upon the provision of tax invoices or receipts and to include steam cleaning lounge suites, rugs and mats, dry cleaning curtains, painting, tile cleaning (internal and external), servicing reticulation, cleaning blinds, garaged or service, Miele services and repairs (as recommended by Miele), Hire a Hubby, cleaning exterior and interior seals.
d)In respect of [[Property B]]:
i)loan repayments for the NAB loan account number [xx-xxx-xxxx];
ii)premiums for the home and contents insurance;
iii)premiums for Landlord insurance;
iv)City and Water rates and taxes; and
v)all reasonable and necessary outgoings, including maintenance and utilities.
e)In respect of the wife's [Toyota Land Cruiser] motor vehicle:
i)car service and repairs, including replacing tyres, at Perth 3MW as and when recommended by Perth 3MW;
ii)fees for registration of the vehicle; and
iii)premiums for the continued insurance of the motor vehicle.
f)RAC Roadside assistance.
g)The amount required for reimbursement of the wife for all the net costs of her medical (excluding cosmetic) and GP appointments at [Suburb N Medical] ("gap" only) upon provision of the receipt of payment.
h)The nominated pharmacy and other pharmacy accounts for medication and medical supplies (only).
i)Premiums for the wife's continued health insurance cover through HBF at the same level or, if agreed, at a higher level.
j)Telephone and Internet costs for [the Home].
k)The wife's mobile telephone account.
l)The Foxtel subscription for [the Home] (excluding additional costs associated with new release movies).
m)Spotify.
n)Piano tuner, once per year.
o)The wife's taxation liabilities.
p)Accounting fees for the preparation of the wife's taxation return.
q)Unless otherwise agreed in writing between the parties, up to $6000 or $4000 per annum for holidays for the wife.
r)In the event that the wife and children go on a holiday referred to in the previous sub-paragraph, $100 per day, including travel days, as spending money – such money to be transferred to the wife the day prior to departure.
Legal fees
3.Within 7 days after the payment by or on behalf of the husband of any money in payment of accounts rendered by the solicitors for the husband or paid to their trust account, the husband pay or cause to be paid the same sum of money to the solicitors for the wife.
4.Within 7 days after the payment by or on behalf of the husband of any money referred to in the preceding paragraph, the husband cause to be given to the wife's solicitors a memorandum stating the amount or amounts so paid.
5.The determination as to whether the payments by or on behalf of the husband to the wife's solicitors are to be treated as –
a)a debt due from the wife to the husband; or
b)part of the wife's entitlement to property settlement; or
c)the provision of maintenance for the wife; or
d)payment by the husband of the wife's costs of and incidental to these proceedings; or
e)otherwise,
be adjourned to the trial judge.
6.The husband forthwith pay the wife's National Australia Bank Ltd credit card account debt, including interest.
7.The wife have liberty to apply in respect of paras 7, 23 and 25 of the Minute of Orders Sought filed by her on 17 March 2016.
8.Such further or other orders as this Honourable Court considers appropriate.
AND IT IS NOTED THAT: –
Child Support
9.Pending disposal of these proceedings, the husband has agreed to pay or cause to be paid as and when it/they falls/fall due –
a)to the wife– any periodic child support that may be assessed while this order is in force; and
b)to the wife or directly to others as indicated –
i)the children's private school fees;
ii)all expenses in relation to the children's schooling, including school uniforms and shoes and school excursions;
iii)all reasonable and necessary stationery needs of the children;
iv)mobile telephone accounts for the parties' sons;
v)premiums for the continued health insurance cover through HBF for the children at the same level or, if agreed, at a higher level;
vi)all reasonable and necessary medical expenses for the children, including:
(1)Dental and orthodontal;
(2)Optometrist;
(3)save for the pump (any necessary update for which is covered by Medibank/HBF each alternate year), all [medical] equipment for [Child D]; and
(4)Podiatry and physiotherapy;
vii)all reasonable and necessary clothing and shoes for the parties' sons;
viii)all reasonable and necessary expenses relating to [Child D’s] Ballet lessons (including shoes, costumes and tap shoes) or other extracurricular activities as she may be enrolled in from time to time, including, but not limited to, gymnastics;
ix)mouthguards for the children as and when reasonably required, but not more than once per year;
x)tennis fees for [Child B], [Child C] and [Child D];
xi)cricket fees for [Child A], [Child B] and [Child C];
xii)hockey fees for [Child A], [Child C] and [Child D];
xiii)swimming lesson charges for all the children;
xiv)other extracurricular activities of the children as agreed in writing between the parties;
xv)school lunches for the children at the current level of school lunches;
xvi)The West Australian newspapers subscription for [Child A];
xvii)all reasonable and necessary birthday presents for the children to gift to their friends;
xviii)all reasonable and necessary Christmas presents for the parties' children's teachers and class representatives;
xix)reasonable and necessary books for the children;
xx)unless otherwise agreed in writing between the parties, up to $12,000 or $8000 per annum for holidays for the children;
xxi)in the event that the wife and children go on a holiday referred to in the previous sub-paragraph, $100 per child per day, including travel days, as spending money – such money to be transferred to the wife the day prior to departure;
xxii)$400 each alternate year for the Royal Show;
xxiii)$500 for each child's birthday to be paid to the wife two weeks in advance of each birthday; and
xxiv)$400 for each of the children's Christmas presents to be paid to the wife on 1 December each year.
Comments relating to the Restructured Minute
47In my opinion, the items in para 9 of the Restructured Minute under the heading "Child Support" relate to child support, and not spousal maintenance.
48I have left in para 1 of the Restructured Minute the figures proposed by the parties (being $3000 per week and $1868 per week), but have added the words "or such other figure as the Court shall deem appropriate" because the parties' figures were clearly intended to be inclusive of child support and were therefore deceptive.
49I have removed any reference to child support and child support items in the paragraphs appearing under the heading Spousal Maintenance – which approach, as I have indicated, is both logical and principled.
50The parties' dispute regarding additional Foxtel movies appears at para 2(l).
51The Primary Minute reflected a dispute between the parties as to whether the husband should pay a maximum of either $18,000 or $12,000 per annum for holidays for the wife and the children. Holidays for the children fall under the heading of child support and hence I have reframed the dispute in para 2(q) of the Restructured Minute by allocating to the wife one third of the total amount claimed; I have allocated the remaining two thirds to the children. Because the wife is an adult, it seems reasonable to allocate a greater share of the relevant expenses to her than would apply to each child. Doing the best I can with the information available to the Court, I have estimated that the wife's expenses are likely to be approximately double those of each child. Seen in this light, the total figure should be allocated on the basis of one sixth to each child and two sixths (or one third) to the wife. One third of $18,000 is $6000. One third of $12,000 is $4000.
52The corresponding provision relating to the children's holidays appears in para 9(b)(xx) of the Restructured Minute. Two thirds of $18,000 is $12,000. Two thirds of $12,000 is $8000.
53The parties' dispute regarding the payment of the wife's credit card debt appears at para 6 of the Restructured Minute.
54In my opinion, the parties' dispute regarding birthday presents for the children's friends and teachers relates to child support issues. The relevant items appear in para 9(b)(xvii) and (xviii). Similarly, it would appear that the argument relating to the Royal Show allowance also relates to child support issues. Para 9(b)(xxii) deals with this subject. The wife's claim relating to birthday and Christmas gifts for the children, birthday parties and Christmas decorations are otherwise dealt with in para 9(b)(xxiii) and (xxiv). The wife claims much higher amounts than those allowed by the husband in these sub-paragraphs (see the Schedule at #95 and #96), but I am satisfied that the amounts allocated by the husband are reasonable in the circumstances – save in one respect. It seems that the wife wishes to organise elaborate parties and provide extensive Christmas decorations for the children, and, in the circumstances, I see no reason why the husband should not contribute some additional funds for these purposes. In my opinion, a reasonable allowance for the birthday parties and Christmas decorations (over and above the $500 for each child's birthday referred to in para 9(b)(xxiii) and the $400 for each child at Christmas referred to in para 9(b)(xxiv)) is $25 per week. It seems to me that this figure falls comfortably within the concept of spousal maintenance, and hence I have dealt with it in the Schedule at #95 and #96 (having somewhat arbitrarily allocated $20 to #95 and $5 to #96). I emphasise that these are "top up" figures only, to be added to the $500 for each child's birthday and $400 for each child at Christmas that the wife will otherwise be receiving from the husband.
55As no relevant application relating to child support is before the Court, any conclusions I may reach in relation to child support issues are advisory only. The Court's powers to make orders in relation to these matters have not been enlivened.
The Law
56Part VIII of the FLA deals with property, spousal maintenance and maintenance agreements. Section 72 deals with the right of a spouse to maintenance, s 74 deals with the powers of the Court in spousal maintenance proceedings and s 75 deals with matters to be taken into consideration in relation to spousal maintenance.
57Section 72, relevantly, is as follows:
Right of spouse to maintenance
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).
58Section 74, relevantly, is as follows:
Power of court in spousal maintenance proceedings
1.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.
59Section 75 is as follows:
Matters to be taken into consideration in relation to spousal maintenance
1.In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
2.The matters to be so taken into account are:
a)the age and state of health of each of the parties; and
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; and
c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
d)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; and
e)the responsibilities of either party to support any other person; and
f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
i)any law of the Commonwealth, of a State or Territory or of another country; or
ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
l)the need to protect a party who wishes to continue that party's role as a parent; and
m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
n)the terms of any order made or proposed to be made under section 79 in relation to:
i)the property of the parties; or
ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
i)a party to the marriage; or
ii)a person who is a party to a de facto relationship with a party to the marriage; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
3.In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
4.In this section:
party means a party to the marriage concerned.
60In Bevan & Bevan (1995) FLC 92-600, the Full Court said that an award of spousal maintenance requires:
a)a threshold finding under s 72;
b)a consideration of ss 74 and 75(2);
c)no fettering principle that 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" as the guiding principle.
61There is no direct reference to interim maintenance in the FLA – although there is indirect reference to an interim order (in the context of a bankrupt or insolvent party) in s 74(8).
62In exercising its powers under Pt VIII, the Court may "make ... an order pending the disposal of proceedings ... or until further order": see s 80(1)(h). Spousal maintenance orders of this nature are referred to as interim spousal maintenance orders, but they are subject to the usual criteria set out in ss 72 and 75: see Hall v Hall (2016) 90 ALJR 695 ("Hall") at [6] and [8]. The principal differences between applications for interim spousal maintenance and those for permanent spousal maintenance are as follows:
a)on an application for interim maintenance the court conducts "not as final or exhaustive a hearing as would be the case if one were hearing the matter finally": see Williamson & Williamson (1978) 4 Fam LR 355 and Wilson & Wilson (1989) 13 Fam LR 205; and
b)the trial judge has considerable discretion, and (any relevant) appellate tribunal "... would be much more reluctant to interfere than would be the case with an order for indefinite maintenance": see Wilson& Wilson (supra), citing Redman & Redman (1987) 11 Fam LR 411.
63The majority in Hall summarised the law as follows (footnotes omitted):
3.Part VIII of the [FLA] governs, amongst other things, spousal maintenance. The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section 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 … having regard to any relevant matter referred to in [s] 75(2)".
4.The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That sub-section provides that, "[i]n 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".
5.A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as "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". They also include, by virtue of s 75(2)(o), "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account".
6.A court in exercising its powers under Pt VIII may "make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order". The power to make the second or last of those forms of order — an order pending the disposal of proceedings or an order until further order — is within the general power conferred by s 74(1). Such an order has now long been referred to, in nomenclature which has come to receive statutory confirmation, as an "interim order" as distinct from a "final order".
7.It was established at an early stage in the history of the Family Court that the power to make an interim order under s 74(1) is separate and distinct from the power to make an urgent order that is separately conferred by s 77…
8.Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order "[t]he evidence need not be so extensive and the findings not so precise" as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding… A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).
64As is clear from the above, s 72 establishes a threshold question which must be answered before the power in s 74 can be exercised – on either an interim or a permanent basis. The threshold question is whether the applicant is "unable to support herself or himself adequately". This question is not to be determined by reference to any fixed or absolute standard, but by reference to the matters referred to in s 75(2): see Mitchell & Mitchell (1995) FLC 92-601 at 81,995.
65The Full Court in Brown and Brown (2007) FLC 93-316 ("Brown") said at [92]:
Adequacy is the key concept in determining whether the threshold set by s 72 has been crossed. But that concept is not left behind once the step into the s 74 enquiry as to what is "proper" is taken. Though application of the factors set out in s 75(2) may, in a given case, lead to a generous interpretation of needs that are "adequate" and of what is "proper", the nexus between "adequate" and "proper" must remain. As Asche J said in Robinson and Willis (1982) FLC 91-215:
An order which is either insufficient or excessive in the circumstances is not "proper".
66The Full Court in Brown also discussed the concept of whether a party can support herself or himself "adequately" at [161]. Their Honours said that "at a general level", the following propositions emerge from the relevant authorities:
• The word "adequately" is not to be determined according to any fixed or absolute standard.
• The idea that "adequate" means a subsistence level has been firmly rejected.
• Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties' standard of living may have to be lower if financial resources are insufficient to maintain that standard.
• In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.
• It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
• However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
Discussion
67The husband says that his weekly expenditure (including total expenses paid by the Firm on the husband's behalf and recorded against his drawings) totals just over $29,000: see HA, annexure 1. This equates to approximately $1.5 million annually. The husband's annual drawings are $1.2 million. As a consequence, Mr Hooper argued that the husband cannot afford to pay the amounts sought by the wife.
68During the course of submissions, I inquired as to the likely duration of the interim spousal maintenance order. I was advised that it would take approximately 12 months for the case to travel along the litigation pathway and be dealt with at trial. It follows that the probable duration of the interim spousal maintenance order is around 12 months. It also follows that the gist of Mr Hooper's argument is that the husband does not have the capacity to somehow "find" an additional $60,000 or thereabouts over this period. I am not persuaded by this submission and have no doubt that the husband is well able to pay whatever amount the Court deems appropriate by way of interim spousal maintenance.
69This is so because, as the High Court made clear in Hall, I am required to consider not only the husband's income, but also his financial resources. I will address this in greater detail later, but it is sufficient at this juncture to say that the husband's drawings are not the only source of funds available to him.
70The relevant passages from Hall are as follows (footnotes omitted):
52.The wording of s 72(1)… seems to imply that each party should attempt to support himself or herself where that is reasonable having regard to the matters referred to in s 75(2).
53.The matters referred to in s 75(2)(b) are matters which bear on the practical ability of one party to support the other, and of the other party to support himself or herself. Hence the concluding reference to the matter of the "physical and mental capacity of each of them for appropriate gainful employment". Hence also the opening reference to the matter of "the income, property and financial resources of each of the parties" cannot be confined to the present legal entitlements of the parties.
54.The reference to "financial resources" in the context of s 75(2)(b) has long been correctly interpreted by the Family Court to refer to "a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency". The requirement that the financial resource be that "of" a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee's discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation.
55.Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual enquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.
71Indeed, the High Court in Hall at [57] also acknowledged s 75(2)(o) as a relevant factor bearing on the practical ability of one party to support the other, and of the other party to support himself or herself:
Section 75(2)(o) plainly extends to any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account as showing that a party to the marriage is or is not able to pay spousal maintenance or is or is not able to support himself or herself. The paragraph is accordingly long been correctly interpreted by the Family Court as permitting consideration by a court of "all of the financial matters which are relevant to [a] particular case". Nothing in the language or structure of s 75 prevents a fact or circumstance which falls within s 75(2)(o) being also a fact or circumstance which gives rise to a matter under another paragraph of s 75(2), including s 75(2)(b). (Footnotes omitted.)
72Not surprisingly, the husband also argues that even if he can pay the expenses requested by the wife, the amounts she allocates for certain items are excessive and that many of her expenses are unnecessary in order to maintain a reasonable standard of living.
73Largely because of the excessive detail contained within it and the nature of the task upon which the Court must embark in interim proceedings, the Schedule was less helpful than it could have been. I am simply not in a position to analyse the Schedule line by line, assessing whether, for example, the wife should be spending $2.46 instead of $4.92 per week in respect of annual skin checks, or $26 per week instead of $30 per week in respect of takeaway food. Indeed, many of the calculations and comparisons in the Schedule amount to an exercise in pettifoggery and do nothing to assist in resolving the parties' dispute "in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case": see Rule 1.04 of the Family Law Rules 2004. Regrettably, the fussy, nit-picking approach reflected in the Schedule invites the Court to waste its time and otherwise deplete its limited resources in a manner that is both disproportionate to the real issues in the proceedings and their complexity (and, indeed, the likely costs of the case to the parties) and wholly unjustifiable when the needs of other cases are taken into account.
74The comments I have made in the previous paragraph are buttressed when regard is had to the fact that, in spite of the voluminous material filed, there is little clear evidence regarding what constitutes a reasonable expense in the context of the lifestyle led by the parties prior to separation. Much of the affidavit material involves the wife listing (often in extravagant detail) the amounts she asserts that she requires, and the husband simply disagreeing with the relevant quantum.
75In those circumstances, I have adopted a broad brush approach. I have done the best I can to consider the wife's needs in a holistic matter.
Section 75(2) factors
76I have already recorded the age of the parties.
77No evidence was presented to suggest that the husband is in anything other than in good health.
78The wife's suffers from [a medical condition], and underwent a [major medical procedure] in October 2008. She requires constant monitoring and medication. She says that she had [medical tests] on 20 June 2016, and that she was then referred to [a] specialist: see WA2 at [7].
79I accept that the wife's health is poor and that this affects her ability to obtain and maintain any kind of paid employment. It is most unlikely that she will be capable of obtaining employment at any time in the foreseeable future.
80The husband continues to work at the Firm. It was not suggested that he will be unable to continue to work in that capacity. I find that he has the physical and mental capacity to continue in his current professional role for the foreseeable future.
81Although the wife has a law degree, she has not worked in the legal field since 1996. She has not worked at all since 2000: see WA1 at [163] to [166].
82As these are interim proceedings, I need not investigate the parties' overall financial position exhaustively. I propose, however, to make the following observations:
a)The husband deposes to drawing a total of $100,000 per month, of which $50,000 is paid to him directly and $50,000 is paid to a trust. On 4 May 2016, the husband removed funds from the account of the trust and transferred them into his own account. The amount transferred was approximately $426,000: see HA at [26] to [32].
b)The husband also deposes that, when funds are available, the Firm is sometimes able to distribute additional funds to its equity partners. In the 2015 financial year, for example, $90,000 was distributed. In the financial year ending 2016, approximately $446,000 was paid: see HA at [28]-[29].
c)Although Mr Hooper submitted that this is a resource upon which the husband cannot rely, it is clear that the distributions have provided the husband with additional income on a regular basis. On the evidence currently before me, I find it is likely that the Firm will continue to make distributions as it has in the past. I cannot predict the quantum of those distributions, but it is fair to anticipate that they will be comparatively substantial. I regard this finding to be consistent with the High Court's approach in Hall (see above).
d)The husband also has a share portfolio.
e)The wife receives a carer's allowance for [Child D]of $60 per week.
f)The wife also receives child support from the husband of approximately $604 per week. Thus, her annual weekly "income" totals approximately $660.
g)In the past, the wife has also received rent from [Property B]. She says that she was receiving approximately $319 per week from this source, but the payments have ceased. Why this is so is less than clear, but as both parties accept that [Property B] is to be sold, it is unlikely to be an ongoing source of funds for her.
h)At annexure 1 of HA, the husband estimates that his weekly expenditure (including total expenses paid by the Firm on his behalf and recorded against his drawings) totals $29,029.35. The wife does not seem to challenge any of these expenses.
i)The husband has a tax liability for the financial year ended 30 June 2015: see HA, annexure 7. It appears that the estimated tax payable is approximately $175,000. On 28 July 2016 and 29 October 2016, he will be (or will have been) required to pay various instalments in respect of his and the wife's personal tax, and in respect of another entity. He asserts that he does not have sufficient funds to pay these liabilities: see HA at [70].
j)No explanation was provided as to why the husband could not use the moneys referred to in (a) above (amounting to approximately $426,000) – or what remains of those funds – to meet the payments.
83The four children currently live with the wife, although they spend time with the husband. As I have already noted, the husband pays child support. He also pays other significant expenses for the children.
84The wife sets out her weekly expenses in the Schedule – which has its genesis in annexure A to her financial statement sworn 13 March 2016. These expenses total just under $2960. The husband disagrees with many of them. As I shall presently explain, I am satisfied that, in some cases, the wife's expenses are exaggerated; in other cases, they are unreasonable. I have concluded that a reasonable allowance for the wife's expenses and necessary commitments is $2,333.
85Neither party is responsible for supporting any other person (apart from the children).
86Neither party is eligible for a relevant pension, allowance or benefit within the contemplation of s 75(2)(f).
87Clearly, both parties are entitled to a reasonable standard of living. I am conscious of Mr Hedges' submissions to the effect that the wife is attempting to maintain the same standard of living that she enjoyed prior to separation.
88In Wilson & Wilson(1989) 13 Fam LR 205, the Full Court dealt with interim spousal maintenance in circumstances where the parties had assets exceeding $45 million, and maintained a lavish lifestyle. The Court rejected the concept that where the respondent has ample means to support the applicant's pre-separation standard of living, that standard should not be reduced. Thus, Strauss J said (at p 209):
A standard of living that in all the circumstances is reasonable for the party claiming maintenance is not necessarily the same standard as that enjoyed by the party who is ordered to pay maintenance. Normally, as in this case, the party who is ordered to pay maintenance is the party who generates the means and income out of which the maintenance is to be paid. Similarly, the standard of living that in all the circumstances is reasonable for the wife in this case, is not necessarily the same standard as that enjoyed during cohabitation. The orders which have been made in this case are intended to have a transient effect only.
89The husband has undertaken to pay all the expenses associated with the properties and the outgoings, including maintenance and repairs, and many other expenses as well – including child support and the children's school fees. It follows that many of the items listed in the Schedule cannot be fairly categorised as "necessary" to enable the wife to support herself adequately. As well, I am fully cognisant of the fact that there is no fettering principle that the wife's pre-separation standard of living must automatically be maintained where the respondent's means permit. I do not regard myself as being bound by any presumption, rule or principle to such an effect. Nevertheless, in the circumstances of this case, I find that it is unreasonable to expect the wife to reduce her standard of living to any significant extent on an interim basis. I am of this view because I am satisfied that the husband has the ability to pay the quantum of spousal maintenance sought by the wife and because the wife appears to lack the emotional resources and support that are currently enjoyed by the husband. She is financially and emotionally vulnerable, and the making of orders that will have the effect of enabling her to (more or less) continue her pre-separation standard of living is unlikely to cause the husband any significant financial discomfort in the short or medium term. I would not think it proper or reasonable – in the circumstances of the case now before me – for the wife to have to reduce her standard of living significantly on an interim basis. Perhaps more accurately, I would not think it proper or reasonable for the wife to have to reduce her standard living beneath the standard that I consider is appropriate after taking into account the matters contained in ss 72, 74 and 75, and otherwise allowing for her reasonable needs on an interim basis.
90I have evaluated items in the Schedule in as much detail as the evidence allows. As I have observed, I am conscious that the husband raises concerns regarding the wife's excessive expenditure. Nonetheless, I consider that the orders I propose to make will enable the wife to continue to live in a (very) comfortable home with all or almost all of what she perceives to be her needs having been met.
91In my opinion, the matters referred to in s 75(2)(h), (ha), (j), (k), (m), (n), (naa), (p) and (q) are not relevant, or not currently relevant, in the context of the application now before the court.
92Section 75(2)(o) requires the Court to take into account any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account. In my opinion, the husband's eligibility for ongoing distributions from the Firm falls within this general category, whether or not the distributions can fairly be regarded as a financial resource available to the husband: see my comments regarding the High Court's decision in Hall above.
Reasonable allowance for wife's commitments
93The Schedule records that the wife's expenses total just under $2960 per week.
94Both parties acknowledge that it contains a certain amount of 'double-dipping' – in other words, that the wife appears to be claiming expenses that the husband has already agreed to meet
95At #70, for example, the wife lists $3.50 per week for her RAC Roadside Assistance. The husband has already agreed to meet this expense and it is therefore unnecessary for it to be included.
96The husband has also agreed to provide $5,000 towards maintenance and repairs at the House. It follows that it is unnecessary for the wife to include items that will fall within that general characterisation (unless I consider the amount of $5000 to be inadequate for the purpose for which it is intended – which I do not). I propose, therefore, to ignore the following items:
•Bunnings (#12)
•piano tuner (#33)
•miniskip bin (#39)
•lounge suites, steam cleaning (#41); and
•Weeding Women (#54).
97In relation to the last of the above items, I note that the husband has agreed to pay for a gardener and lawn mowing. It is clearly unnecessary for the husband to pay twice for the same thing.
98In relation to the Royal Show, the husband proposes to pay $200 annually (or, as he describes it, $400 in each alternate year). The wife seeks weekly payments of $11, or $572 per annum. It appears that this amount is intended to cover herself and the four children. In my opinion, and since the wife is unlikely to be buying show bags for herself or going on the same rides as the children enjoy, a reasonable allowance for this item is $50 per annum for the wife and $80 per annum for each of the children. The payment as it relates to the wife can fairly be characterised as spousal maintenance. The payment for the children (totalling $320 per annum) is more accurately characterised as child support. It follows that, in my opinion, the amount to be allowed in the Schedule under item #89 should be $1 and the amount in the Restructured Minute at para 9(b)(xxii) should – theoretically – be altered to $320 per year. Because I do not have a relevant child support application before me, however, I can do no more than record my finding in this regard.
99As I have said, there are a number of expenses listed in the Schedule which I consider to be unreasonable and inappropriate.
100For example, the wife claims approximately $29 per week for "Pet" (#145) and $15 per week for "Pet insurance" (#146). While these are not significant sums in the context of the parties' dispute, they take on a new dimension when one considers that, during the relationship, the husband and wife did not own a pet. Indeed, in WA1 at [769], the wife states that they still do not own a pet, but that she would like to purchase one for the children. Whether or not she does is a matter for her but, should she do so, I can see no reason why the husband should be expected to meet the expenses associated with it.
101For the same reason, I intend to remove the sum of approximately $62 per week claimed in respect of "Three nights at Crown Perth at Christmas with children" (#104). According to the husband, this is not something that the parties have done previously with the children. Moreover, the husband has agreed to pay for holidays for the wife and children. While there is disagreement between the parties as to the amount the husband should pay in this regard, I consider it appropriate that any additional expenses be drawn from that figure. In any event, it was conceded during the course of submissions that the three night stay at Crown will not be required this year.
102Despite the paucity of evidence in relation to why the husband disputes the wife's listed expenses, there are a number of items in relation to which I consider the wife has claimed an excessive amount. Thus, I find that the following figures represent a reasonable allowance for the wife's necessary and reasonable commitments in relation to these items:
•Household replacements (#11): $60 per week;
•Ironing (#23): $175 per week
•Fuel for motor vehicle (#62): $100 per week (which, I note, corresponds with the item originally claimed by the wife – for petrol for herself – in her financial statement);
•Taxi/Uber (#66): $10 per week;
•Movies etc (#99): $50 per week (and I note that this item seems to include movie outings for the children, which should properly be dealt with under the general heading of child support);
•iTunes/Spotify etc (#99a): $10 per week (bearing in mind that the husband already pays for Spotify);
•Personal training/gym membership (#125): $120 per week;
•Hair products/services (#133): $100 per week;
•Skin products and sunscreen (#136): $50 per week;
•Clothing and footwear (#139): $225 per week; and
•Magazine subscriptions (#140): $15 per week.
103In item #109, the wife seeks $240 per week for her psychologist, [Dr T]. In WA2 at [59], the wife says that Dr T has increased his fees to $250 per week, not $240 as listed in the Schedule. The only information I have regarding his fees is the account attached to HA at annexure 17. I note that, in March 2016, Dr T charged the wife $240 per session. As this is a comparatively minor discrepancy, I propose to accept the wife's assertion that the fees are now $250 per week.
104The wife also requires that the husband pay the amount currently due to Dr T. As I have found that the husband should continue to pay for the wife to see the doctor, I am satisfied that he should also pay the outstanding fees. The husband says he is content to do so, save for sessions that the wife did not attend.
105I am not satisfied that the husband should be obliged to pay for sessions the wife did or does not attend. If the wife chooses not to attend appointments that she says she requires, then that is a matter for her – but the husband should not be responsible for the costs associated with the missed sessions. I will therefore make an order that the husband pay Dr T's account in respect of appointments actually attended by the wife.
106The wife claims $18,000 per annum for holidays for herself and the children. The husband's proposal in respect of this item is $12,000 per annum, with an additional $100 per person, per day. According to the husband, the parties and the children went on three or four holidays in a 10 year period: see HA at [207]. The wife says that the family took three to four holidays per year: see WA1 at [734]. She says that the expenses she claims are similar to those incurred during the marriage.
107However, holidays will now include one less person. If the parties spent $18,000 per annum during their relationship, then, using the fairly rough and ready calculation set out above (pursuant to which the costs allocated to each adult are double those allocated to each child), the costs relating to each adult would have been $4500 and the costs relating to each child would have been $2250. Although I accept that the calculation is both unrefined and unsophisticated, I propose to deduct $4500 from the amount the wife seeks and make an order that the total amount to be provided by the husband for holidays – on an interim basis – should be $13,500. The additional $100 per person, per day should remain.
108Again, using the same calculation set out above, the allocation to the wife becomes $4500 and the allocation for each child becomes $2250. The former relates to spousal maintenance; the latter arguably relates to child support and should be dealt with in that category. It follows that item #102 should be $87 per week (corresponding to $4500 per annum for holidays for the wife only) – which I have rounded up to $100 per week to take account of the additional $100 per day that the husband has offered to provide. The figure in para 9(b)(xx) of the restructured minute should be $9000 for holidays for the children only. The additional $100 per day per child is already dealt with in para 9(b)(xxi).
109In relation to new release movies on Foxtel, and bearing in mind that the wife no longer has the husband's companionship in the evenings and at other times (and that the husband is not available to assist with the care of the children in the Home), I am of the view that the husband should indeed meet the cost of new release movies – in case nothing else of interest is on Foxtel or free to air television. It seems reasonable, however, to place some form of limit on the number of new release movies the wife can order. I find, therefore, that it is proper and reasonable for the husband to meet the cost of two new release movies on Foxtel per month.
110The wife also seeks an order that the husband pay her outstanding credit card debt. In WA2, the wife says that she owes nearly $17,000 in respect of her NAB credit card. She acknowledges, however, that on 24 March 2016, the husband paid $20,279.18 towards that debt. On 16 May 2016, he also paid $10,692.96 towards her David Jones American Express card: see WA2 at [23] to [27].
111The wife says that the she has been forced to use her credit card to supplement living expenses not provided by the husband. A copy of the wife's credit card statement for the period February 2016 to June 2016 comprises annexure 10 to WA2. The husband disputes that the wife requires the credit card to supplement her lifestyle: see HA at [119].
112Since I have found that the funds the husband has provided to date are insufficient to meet the wife's current needs, I intend to make an order to the effect that the husband pay the wife's current credit card debt. Future credit card debts should be paid by the wife, given that they are likely to relate to expenses covered by the amounts I have ordered the husband to meet (or, alternatively, that he has agreed to meet).
113In relation to the dispute regarding the nominated pharmacy, the wife says – not unreasonably – that she requires the flexibility of being able to use more than one pharmacy, and in particular the pharmacy at [Hospital A] (because that is where the [major medical procedure] clinic is located): see WA1 at [776].
114In my opinion, it is sensible for the wife to have this flexibility. For example, a situation may arise in which the nominated pharmacy does not stock in item or medication that she needs for herself or for one of the children, or it may simply be more convenient for her to shop at another pharmacy. That the parties could not agree such an arrangement between themselves speaks volumes about their respective characters and approach to litigation. Much the same can be said of the dispute regarding new release movies on Foxtel.
Summary
115In the light of the matters discussed above, I find that the following figures represent a reasonable allowance for the wife's necessary and/or reasonable commitments on a weekly basis:
| Item No. | Item | |
| 2 | Food | $300 |
| 5 | Kirwin/Atomic | $12 |
| 5a | Wine | $60 |
| 6 | Takeaway food | $30 |
| 8 | Household supplies | $105 |
| 9 | Dishwasher/Cleaning products | $9 |
| 10 | Enjo cleaning products | $25 |
| 11 | Household replacements | $60 |
| 12 | Bunnings | $0 |
| 21 | House cleaner | $380 |
| 23 | Ironing | $175 |
| 33 | Piano tuner | $0 |
| 39 | Miniskip bin | $0 |
| 41 | Lounge suites (steam cleaning) | $0 |
| 54 | Weeding Women | $0 |
| 62 | Fuel: motor vehicle | $100 |
| 66 | Taxi/Uber | $10 |
| 69 | Car Cleaning | $30 |
| 70 | RAC Roadside Assistance | $0 |
| 72 | Paid parking | $20 |
| 82 | Ballet tickets | $0 |
| 89 | Royal Show costs | $1 |
| 93 | Birthday presents for friends | $0 |
| 95 | Birthday presents for children (including parties) | $20 |
| 96 | Christmas presents and costs | $5 |
| 97 | Teachers' presents | $10 |
| 99 | Movies etc | $50 |
| 99a | iTunes/Spotify etc | $10 |
| 102 | Holidays (wife only) | $100 |
| 103 | Qantas Club membership | $17 |
| 104 | 3 nights at Crown Perth at Christmas with children | $0 |
| 106 | Dry-cleaning | $17 |
| 109 | [Doctor T] | $250 |
| 110 | Physiotherapy | $3 |
| 111 | Mammograms and Ultrasound | $7 |
| 112 | Annual skin checks | $5 |
| 115 | Annual abdominal ultrasound | $3 |
| 116 | Annual Pap smear | $6 |
| 120 | Optical | $12 |
| 121 | Sunglasses | $11 |
| 123 | Podiatry | $2 |
| 124 | Yoga | $17 |
| 125 | Personal training/Gym membership | $120 |
| 128 | Dental | $20 |
| 130 | Psychiatrist ([Doctor W]) | $14 |
| 132 | Hair colour | $52 |
| 133 | Hair products/services | $100 |
| 134 | Manicure and Pedicure | $18 |
| 135 | Facial peels | $6 |
| 136 | Skin products and sunscreen | $50 |
| 139 | Clothing and footwear | $225 |
| 140 | Magazine subscriptions | $15 |
| 143 | Books | $15 |
| 145 | Pet | $0 |
| 146 | Pet insurance | $0 |
| 148 | Tennis | $33 |
| 149 | Group lessons: tennis | $23 |
| 150 | Tennis membership | $10 |
| 151 | Pennant fee: tennis | $1 |
| 166 | NAB Banking fees | $10 |
| Genea annual fee | $9 | |
| $2333 |
116As is clear from the above, I have accepted the wife's evidence in relation to the majority of her claimed requirements (including the Genea annual fee) on an interim basis. In any event, I am satisfied that the total amount I have allowed (being $2333 per week) is fair and adequate to meet the wife's claim for spousal maintenance on an interim basis – particularly when regard is had to the additional expenses that the husband has agreed to meet. Indeed, I am satisfied that $2333 per week is a proper figure for interim spousal maintenance (in the sense I have described) even if some of the figures set out in the previous paragraph are incorrect.
117Prior to the date of separation the wife did not have to give serious consideration to her ability to afford any (or almost any) item, outing or form of entertainment that she may have reasonably desired. The presence of the husband in her life meant that many of her activities and outings were with him or involved him. Prior to the separation, the parties could spend time together at the House if they were minded to do so, and each was company for the other. The breakdown of the marriage has meant that the wife is now without a partner in that sense and, in my view, it is reasonable for her to involve herself in other activities and to seek and enjoy the company of others to avoid the loneliness and retrospection that would otherwise beset her. On an interim basis, at least, she should not be required to prune her expenditure too harshly. To do so, and to deal with the emotional consequences that may result from such externally or internally imposed limitations, would cause the wife undue hardship. Having regard to the assets and financial resources of the parties, the husband's financial position in the broadest sense and the interim nature of the spousal maintenance orders sought, I conclude that such a limitation would also be unnecessary and unfair. It is especially unfair when regard is had to the fact that the husband has the financial capacity to meet all his reasonably claimed expenses and to pursue what is clearly, for him, a rewarding and satisfying career.
Conclusion
118I have already observed that the parties have agreed that the wife has passed the threshold test outline in s 72 of the FLA, and that the wife is entitled to receive spousal maintenance.
119I have considered the provisions of s 74 and 75(2).
120I understand that there is no fettering principle to the effect that pre-separation standard of living must automatically be awarded to the wife where the husband's means permit, and that any order that I may be minded to make for interim spousal maintenance must be reasonable in all the circumstances of the case. Obviously, the order that I propose to make is the one that I consider proper within the meaning and contemplation of s 74.
121In all the circumstances, I have concluded that a reasonable allowance for the wife's necessary and reasonable commitments, on an interim basis, is $2333 per week.
122The wife's present "income" comprises child support payments received from the husband and benefits received for [Child D]. As these funds are to be used for the benefit of the children, and as I have differentiated between expenses that properly relate to the wife and those that properly relate to the children, it is inappropriate to set off this form of "income" against what I have found to be the wife's necessary and reasonable commitments on an interim basis.
123Having taken into account all the factors discussed above, including the husband's willingness to pay very significant amounts relating to (among other things) –
a)the House and its maintenance;
b)Property B;
c)the wife's motor vehicle;
d)the wife's medical expenses;
e)the wife's taxation liabilities and accounting expenses;
f)a dollar for dollar contribution arrangement for the wife's legal expenses; and
g)child support expenses fairly characterised as child support,
I have concluded that a proper payment for the provision of interim spousal maintenance for the wife to receive is $2333 per week.
124The above figure is inclusive of holidays for the wife (and the $100 per day allowance for spending money), but does not include holidays for the children. It is also inclusive of what I consider to be a reasonable allowance for the wife's house cleaner (Schedule item #21).
125I also consider it just and proper for the husband to pay the wife's NAB credit card account debt, including interest. Thereafter, the wife is to be responsible for her own credit card expenses.
Orders
126Having regard to the findings I have made, I propose to make the following orders:
Spousal Maintenance
(1)Pending disposal of these proceedings, the husband must pay or cause to be paid to the wife as and by way of spousal maintenance the sum of $2333 per week.
(2)Pending disposal of these proceedings, and in addition to the sum of $2333 per week referred to in para 1 above, the husband must pay or cause to be paid, as and by way of spousal maintenance and as and when they fall due:
(a)In respect of [the Home]:
(i)loan repayments for the NAB loan account number 83-671-5081;
(ii)City and Water rates and taxes;
(iii)premiums payable to Vero for home and contents insurance;
(iv)electricity (Synergy);
(v)gas (Alinta);
(vi)Intelligent Home security monitoring; and
(vii)Zip Industries Zip tap maintenance and service, as and when recommended by Zip Industries.
(b)The following reasonable and necessary expenses for [the Home] on the basis that the wife is to negotiate with service providers and obtain quotes for services to be provided and, if strictly necessary, provide copies to the husband and jointly authorise work to be done:
(i)service of air-conditioning units, once per year;
(ii)plumbing;
(iii)electrical;
(iv)window cleaner, three times per year;
(v)gardener;
(vi)lawn mowing;
(vii)Pest control, twice per year;
(viii)pool service and repairs and including maintenance of the pool equipment; and
(ix)IT related repairs and maintenance as and when reasonably required.
but, for the sake of clarity, excluding the costs of the wife's house cleaner.
(c)Up to $5000 per year for reasonable and necessary maintenance and repairs at [the Home] upon the provision of tax invoices or receipts and to include steam cleaning lounge suites, rugs and mats, dry cleaning curtains, painting, tile cleaning (internal and external), servicing reticulation, cleaning blinds, garaged or service, Miele services and repairs (as recommended by Miele), Hire a Hubby, cleaning exterior and interior seals.
(d)In respect of [[Property B]]:
(i)loan repayments for the NAB loan account number [xx-xxx-xxxx];
(ii)premiums for the home and contents insurance;
(iii)premiums for Landlord insurance;
(iv)City and Water rates and taxes; and
(v)all reasonable and necessary outgoings, including maintenance and utilities.
(e)In respect of the wife's [Toyota Land Cruiser] motor vehicle:
(i)car service and repairs, including replacing tyres, at Perth 3MW as and when recommended by Perth 3MW;
(ii)fees for registration of the vehicle; and
(iii)premiums for the continued insurance of the motor vehicle.
(f)The wife's RAC Roadside assistance.
(g)The amount required for reimbursement of the wife for all the net costs of her medical (excluding cosmetic) and GP appointments at [Suburb N Medical] ("gap" only) upon provision of the receipt of payment.
(h)The nominated pharmacy and other pharmacy accounts for medication and medical supplies (only).
(i)Premiums for the wife's continued health insurance cover through HBF at the same level or, if agreed, at a higher level.
(j)Telephone and Internet costs for [the Home].
(k)The wife's mobile telephone account.
(l)The Foxtel subscription for [the Home] (including the additional costs associated with a maximum of two new release movies per calendar month).
(m)Spotify.
(n)Piano tuner, once per year.
(o)The wife's taxation liabilities.
(p)Accounting fees for the preparation of the wife's taxation return.
(q)The amount required for reimbursement of the wife for the net costs of her consultations with [Dr T] – provided that the husband shall only be obliged to pay such expenses as they relate to appointments actually attended by the wife.
Legal fees
(3)Within 7 days after the payment by or on behalf of the husband of any money in payment of accounts rendered by the solicitors for the husband or paid to their trust account, the husband pay or cause to be paid the same sum of money to the solicitors for the wife.
(4)Within 7 days after the payment by or on behalf of the husband of any money referred to in the preceding paragraph, the husband cause to be given to the wife's solicitors a memorandum stating the amount or amounts so paid.
(5)The determination as to whether the payments by or on behalf of the husband to the wife's solicitors are to be treated as –
(a)a debt due from the wife to the husband; or
(b)part of the wife's entitlement to property settlement; or
(c)the provision of maintenance for the wife; or
(d)payment by the husband of the wife's costs of and incidental to these proceedings; or
(e)otherwise,
be adjourned to the trial judge.
(6)The husband forthwith pay the current balance owing in respect of the wife's National Australia Bank Ltd credit card account, including interest.
(7)The wife have liberty to apply in respect of paras 7, 23 and 25 of the Minute of Orders Sought filed by her on 17 March 2016.
AND IT IS NOTED THAT: –
Child Support
(8)Pending disposal of these proceedings, the husband has agreed to pay or cause to be paid as and when it/they falls/fall due –
(a)to the wife – any periodic child support that may be assessed while this order is in force; and
(b)to the wife or directly to others as indicated –
(i)the children's private school fees;
(ii)all expenses in relation to the children's schooling, including school uniforms and shoes and school excursions;
(iii)all reasonable and necessary stationery needs of the children;
(iv)mobile telephone accounts for the parties' sons;
(v)premiums for the continued health insurance cover through HBF for the children at the same level or, if agreed, at a higher level;
(vi)all reasonable and necessary medical expenses for the children, including:
(A)Dental and orthodontal;
(B)Optometrist;
(C)save for the pump (any necessary update for which is covered by Medibank/HBF each alternate year), all [medical] equipment for [Child D]; and
(D)Podiatry and physiotherapy;
(vii)all reasonable and necessary clothing and shoes for the parties' sons;
(viii)all reasonable and necessary expenses relating to [Child D’s] Ballet lessons (including shoes, costumes and tap shoes) or other extracurricular activities as she may be enrolled in from time to time, including, but not limited to, gymnastics;
(ix)mouthguards for the children as and when reasonably required, but not more than once per year;
(x)tennis fees for [Child B], [Child C] and [Child D];
(xi)cricket fees for [Child A], [Child B] and [Child C];
(xii)hockey fees for [Child A], [Child C] and [Child D];
(xiii)swimming lesson charges for all the children;
(xiv)other extracurricular activities of the children as agreed in writing between the parties;
(xv)school lunches for the children at the current level of school lunches;
(xvi)The West Australian newspapers subscription for [Child A];
(xvii)all reasonable and necessary birthday presents for the children to gift to their friends;
(xviii)all reasonable and necessary Christmas presents for the parties' children's teachers and class representatives;
(xvix)reasonable and necessary books for the children;
(xx)unless otherwise agreed in writing between the parties, up to $8000 per annum for holidays for the children (but see note below);
(xxi)in the event that the wife and children go on a holiday referred to in the previous sub-paragraph, $100 per child per day, including travel days, as spending money – such money to be transferred to the wife the day prior to departure;
(xxii)$400 each alternate year for the Royal Show (but see note below);
(xxiii)$500 for each child's birthday to be paid to the wife two weeks in advance of each birthday; and
(xxiv)$400 for each of the children's Christmas presents to be paid to the wife on 1 December each year.
127As I have explained elsewhere in these Reasons, the original paras 2(q) and (r) of the Restructured Minute have been deleted to reflect the inclusion of the husband's payments towards holidays for the wife within the sum of $2333 referred to in para 1 above. A new para 2(q) has been added to deal with Dr T's fees.
128As I have also explained, my comments and conclusions in relation to child support issues are advisory only. In practical terms, this means that, in my opinion, the husband should be paying up to $9000 per annum for holidays for the children (see para 8(b)(xx) above) and $320 per annum for the children to attend the Royal Show (see para 8(b)(xxii) above).
129I shall hear counsel regarding any matters flowing from the orders I propose to make.
I certify that the preceding [129] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
4 August 2016
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