FOLEY & FOLEY

[2016] FamCA 1045

FAMILY COURT OF AUSTRALIA

FOLEY & FOLEY [2016] FamCA 1045

FAMILY LAW – MAINTENANCE – INTERIM SPOUSAL MAINTENANCE – Application for spousal maintenance by wife – Application granted where wife has established threshold and in circumstances where the husband has capacity to meet the wife’s reasonable needs pending the completion of the proceedings

FAMILY LAW – CHILD SUPPORT – Orders by Consent - the parties concede that the court should exercise its jurisdiction under s 116 of the Child Support (Assessment) Act 1989 (Cth) and whether there ought to be a change to the administrative assessment

FAMILY LAW – CHILD SUPPORT – Departure Order made pursuant to the Child Support (Assessment) Act 1989 (Cth).

FAMILY LAW – PROPERTY - Interim application by wife for further order for an interim property prosecute the proceedings – Application granted in part.

Family Law Act 1975 (Cth) s 72(1)

Child Support (Assessment) Act 1989 (Cth)

Redman & Redman (1987) FLC 91-805
Bevan & Bevan (1995) FLC 92-600

APPLICANT: Ms Foley

RESPONDENT: Mr Foley

FILE NUMBER: SYC 3203 of 2016

DATE DELIVERED: 7 December 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 14 October 2016 & 21 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT: Mr Kevin Dwyer, WMD Law

COUNSEL FOR THE RESPONDENT: Mr Canceri

SOLICITOR FOR THE RESPONDENT: Mr Gregory Artup, Merchant Marriott Lawyers

Orders

1. IT IS NOTED as to the Orders made 9 September 2016 (amended 22 September 2016) (“the September 2016 Orders”):-

   a.Orders 4, 7, 8, 9, 10 of the September 2016 Orders are specifically expressed to remain in force, except order 4.3 which is varied to provide that the wife pays the first $3,000 on annual vehicle maintenance of the German motor vehicle;

   b.Orders 1, 2, 3 & 14 of the September 2016 Orders are now moot;

   c.Orders 5, 6 and 11 the September 2016 Orders have apparently been complied with

2. UNTIL FURTHER ORDER as and from 10 October 2016 the husband shall pay to the wife interim spousal maintenance:-

   a.Being in the sum of six thousand one hundred and twenty five dollars ($6,125) for the period 10 October 2016 to 31 November 2016, payable seven (7) days from the date of this order; and

   b.Four thousand two hundred and thirty four dollars ($4,234) per calendar month, as and from 1 December 2016, payable on the last day of each month.

CHILD SUPPORT

1. BY CONSENT and in the special circumstances of this case, the wife is given leave to apply to this Court for an order under Part VII Division 4 of the Child Support (Assessment) Act 1989 (Cth) both on an interlocutory and final basis.

2. BY DETERMINATION by way of departure order, the assessment of child support for the children B born … 2000, C born … 2002 and D born … 2003 for the period 14 October 2016 to 14 October 2018 (or such other period as is ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth)) the periodic child support shall be three thousand eight hundred and sixty dollars ($3,860) per calendar month.

3. Such payments of child support and spousal maintenance are to be made direct to the wife’s nominated bank account or such other method as is agreed by the parties, in the event that there is no agreement then the child support to be paid through the Child Support Agency and the spousal maintenance to be paid by periodic payments to the wife’s nominated bank account.

4. The husband pay to the wife by way of interim property order the sum of one hundred thousand dollars ($100,000) within one (1) calendar month from the date of this order.

IT IS NOTED

1. The husband has agreed to continue paying school fees for the three children.

2. All outstanding interim applications are otherwise dismissed save and except the question of costs.

3. Costs of both parties are reserved.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Foley & Foley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYC 3203 of 2016

Ms Foley

Applicant

And

Mr Foley

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Foley (‘the wife’) and Mr Foley (‘the husband’) have been in a relationship and married since about September 1998.  Sadly, they are engaged in litigation in respect of property, spousal maintenance and child support.

2. At the time of separation the parties lived in a comfortable home, had reasonably significant assets and the husband had control of a business which produced a strong stream of income.

3. There are three children of the marriage: B aged 16, C aged 14 and D aged 12.

4. The interlocutory  application which was brought by the wife relates to a number of issues:-

   1.A child support departure application where the parties agree that the provisions of s 116 of the Child Support (Assessment) Act1989 (Cth) apply (‘the Assessment Act’);

   2.A change of assessment application to provide that the child support be paid in the sum of $8,797 per month;

   3.An application for an interim property order for $230,000;

   4.An application for spousal maintenance of some $5,841 per month; and

   5.An order that the husband meet all of the costs of the valuers and valuations for the property proceedings pending finalisation of these proceedings.

5. These proceedings have come before the Court on a number of occasions and on the last occasion interim orders were made as the husband had travelled to South Africa and was unable to return.

6. I accept that he was unwell, however, the question is why he was over there at that time given the state of these proceedings and that the matter was to be heard.

7. At that time orders were made that the wife have sole occupation of the former matrimonial home and that the husband pay the bank mortgage on the home, the rates, taxes and insurances on the home.  That order remains in force.

8. The wife had exclusive use of a German motor vehicle and would pay all maintenance, registration and insurance expenses in relation to the vehicle.  That order remains in place subject to a variation that the wife pay the first $3,000 per year for vehicle maintenance, as the wife sought an order that she pay for the maintenance of the vehicle.  I have included in the maintenance, to which I refer, that the husband contributes about $60 per week towards maintenance and therefore any maintenance on the vehicle should be at the wife’s expense for that initial sum.

9. Further, there were other injunctive orders made which were not relevant to these proceedings.

10. The husband was ordered to pay $28,000 to the wife which was by way of interim property and a spousal maintenance orders for a short period of time.  The husband was also ordered to pay the costs thrown away on the last occasion of some $14,000.  It seemed not in issue that those amounts had been paid.

11. This matter came before Johnston J on 25 July 2016 and his Honour made parenting orders that the husband pay $25,000 towards the fees of Dr E and on 15 June 2016 an order was made that the husband pay the wife the sum of $120,000 which was paid.  The nature of that order was not defined in that order.

12. An application was made in early November 2016 to adduce evidence as the mental health of the children in the form of a report prepared by Dr E.  That application was heard on 21 November 2016 and the report dated 17 October was admitted into evidence as Exhibit W11.

THE EVIDENCE

1. A number of documents were tendered as evidence in the interim application and these included:-

   a)   Exhibit W1 - the wife’s 2015 and 2016 income tax returns;

   b)Exhibit W2 – husband’s 2015 and 2016 income tax returns;

   c)Exhibit W3 - F Pty Ltd balance sheet as at 30 June 2016;

   d)Exhibit W4 – wife’s case outline;

   e)Exhibit W5 – minute of order sought by the wife;

   f)Exhibit W6 – wife’s asserted balance sheet;

   g)Exhibit W7 – children’s’ student reports showing time away from school;

   h)Exhibit W8 – statement of claim and benefit in relation to the younger child’s referral to a psychiatrist; and

   i)Exhibit W11 – report of Dr E 17 October 2016.

2. The wife relied upon her further amended initiating application filed 21 July 2016, certain paragraphs to which she referred in her affidavits filed 22 July 2016, her financial statements filed 21 July 2016, her updating affidavit of 7 August 2016, her affidavits filed 7 September 2016 and 20 September 2016.

3. I required that the husband tender the annexures to his most recent affidavit as an exhibit, rather than have it as an annexure, and that is Exhibit H1.  His counsel’s case outline is Exhibit H2.

4. The case outlines were accepted as evidence as to what the parties asserted, not the facts contained in them.

5. However, counsel for both parties agreed with the schedule provided on page 6 of Exhibit H2 in terms of what was sought by the wife and the issues in dispute as to the amounts.

6. The wife also tendered credit card statements.  These were tendered without objection, but were not allocated exhibit numbers.  I will treat the ANZ credit card statement as Exhibit W9 and the Westpac credit card statement as Exhibit W10.

7. The ANZ credit card statement shows that the husband spent business expenses to travel in South Africa and otherwise between May and September 2016 at some $48,354 and additional overseas expenses of some $10,627.38.

8. The Westpac black card showed expenses of the husband including monies spent at clothing shops, and on jewellery and accessories, none of which were seriously challenged.

9. From that material it is clear that the husband spent about $85,000 in travel plus other expenses including jewellery, clothing and the like.

10. From the tax returns it shows that the parties were in receipt of significant income, each well over $150,000 in 2015 and reduced to over $130,000 in 2016.

11. It showed the turnover of the company, which has been diminishing in the last two years.

12. Exhibit W6 was the wife’s balance sheet, and on this document the parties have assets totalling about five million dollars.  The husband asserts that the value of the business is about $600,000 rather than the $1.1 million dollars asserted by the wife and he asserts that the house at Suburb G is worth around $5 million dollars.

13. The parties have significant assets, including significant superannuation assets.

14. In her affidavit the wife asserted that the husband had been angry and aggressive towards herself and the children and that the children in particular are fearful of the husband.

15. The wife applied for and obtained a provisional apprehended domestic violence order in April 2016. 

16. It seems not in issue that the wife, whilst working for the business, was a significant carer of the children.

17. It is in this context that the issue was to be determined.

DISCUSSION

1. One of the orders sought by the wife in these proceedings related to her request that the husband meet all of the costs of the expert reports in relation to property matters subject to any application for reimbursement later in these proceedings.  The husband has apparently paid for the expert report of Dr E.

2. This issue was not argued by counsel during the course of the interim hearing, and I am satisfied that it ought to be dealt with in terms of the interim property orders I have made in the Orders pursuant to these reasons and the 9 September 2016 Orders.  Given that circumstance I do not intend to make that order sought by the wife.

CHILD SUPPORT

1. The wife sought a departure order between now and the hearing, and presumably wishes to argue that further at the final hearing once the full financial circumstances of the parties are clear.

2. The wife had applied for and received an assessment in relation to child support.  The assessments were annexed to her affidavit filed 22 July 2016.[1]

   [1] At pages 133 to 146.

3. A later assessment issued on 14 July 2016, which was based upon the husband’s estimated income of $84,765 and the wife’s adjusted taxable income of $178,224 (provisional), and provided that the husband contribute 28.31 per cent of his income towards child support for the children.  This amounted to approximately $1,101 per calendar month.

4. That assessment was subsequently amended by another assessment which increased the amount to $1,478.75 and then yet another assessment of $1,605.75 per calendar month.

5. A copy of the wife’s application pursuant ss116 and 117 of the Child Support (Assessment) Act 1989 (Cth) was served on the Child Support Registrar.[2]

   [2] At paragraph 22 of the wife’s affidavit filed 7 September 2016.

6. The wife has the full time care of the children and they, at present, have no contact with the husband.  I am satisfied that the wife has little or no income at the present time and, given the orders that I propose to make, she will have spousal maintenance of about $50,000 per year.

7. Establishing the husband’s income it is somewhat problematic.  The husband asserts that his income is about $84,000 as he reduced the amount payable to both he and the wife and he says that is the amount he received.

8. In addition he says that his business is struggling financially as a result of his personal circumstances following the breakdown of the marriage, the loss of a significant client and a general downturn in the business.

9. The wife’s 2016 income tax return shows a total income of about $146,531 from the business. This source of income ceased given the failure of the marriage between her and the husband and given that she was working in a business controlled by the husband.

10. In the same financial year the husband earned about $182,000.  As such he is likely to earn an income of both his and the wife’s combined previous incomes, although there is a significant downturn in the business.

11. In the 2014 financial year the business had a turnover of approximately two million dollars.  In the 2015 financial year the business had an income of just in excess of $1.9 million dollars.  In the 2016 financial year it had dropped to just below $1.3 million.

12. The husband’s evidence, which is supported by some objective evidence, is that the business is struggling due to the huge downturn for the reasons set out above and for the loss of a customer.

13. The wife, as former book-keeper of the business, asserts that work is not being properly charged and she is concerned that there are funds outstanding to the business which would bring the turnover of the business back to much higher levels.

14. Much of this will be resolved by investigation into the business, which will happen in the months that follow this decision.

15. From May 2016 the husband travelled backwards and forwards to Australia, with most of his time overseas, until September 2016.  Late in that travel he was hospitalised.

16. In many ways he was absent from his business for a period of almost three to three and a half months at a time when he asserts that his business was in some difficulty.

17. He spent about $85,000 on travelling expenses and has spent monies on expensive jewellery and clothing over that time.  Given all of the evidence before me, to which I have referred earlier, I am satisfied that the husband has a disposable income in excess of $200,000 per year.

18. He has the capacity to meet a child support assessment based on the highest earnings.  He has indicated that he has the capacity to continue meeting school fees

19. Each of the parties agreed that the Court ought to consider the application for the order under Part VII Division 4 of the Assessment Act. Given the evidence before me I accept that.

20. The question is whether there ought to be a departure from the current assessment to which I have referred earlier on two bases:-

    1.Firstly, because of the special needs of the child or children; and

    2.Secondly, because of the income, property and financial resources of the husband and because of the earning capacity of the husband.

21. The wife asserted that the children are unwell, particularly the youngest child.  She adduced no expert evidence in that regard, although she gave her evidence as to the impact on the children.

22. She provided evidence of the children’s attendance and non-attendance at school and also their referral of the youngest child to a psychiatrist.

23. No meaningful evidence was given as to the costs of the children in that respect.  I have had regard to the content of Dr E’s report, including the impact of the separation and these proceedings on the parties and the children.

24. The weight I have given this evidence is in terms of the wife remaining as the primary carer of these children, who are likely to be struggling following the breakdown of their parents’ marriage.

25. It was asserted that the wife had a capacity to earn, or could earn, as a result of her working with the husband for many years.  I do not accept that she has a present capacity to earn income given the state of her health as set out in her affidavits and given her need to support the children through this difficult period of their lives.

26. As such I accept that the wife’s income should be treated as nil, although I have had regard to the circumstances that she is in receipt of spousal maintenance and other support provided in other orders.

27. The children also have available for them accommodation at the former matrimonial home at no effective cost to the wife other than the electricity, gas etcetera.  These expenses are covered by way of spousal maintenance.

28. The husband has access to the income and resources of his business.  These are quite strong and are continuing to be strong.  He has an income, as I said earlier, which is likely to exceed if not well exceed $200,000 per annum.

29. In determining that there ought to be a change of assessment I am satisfied:-

    (a)that the wife is the primary carer of the children; and

    (b)that the children have lived a relatively affluent lifestyle in their parents’ homes since they were born, including attending a local parish school;

30. Further I have considered:-

    (a)the earning capacity and financial resources of the children.  On the evidence before me none of the children have any such capacity or any significant resources;

    (b)the income, property and financial resources of each of the parents who are a party to these proceedings; and

    (c)the commitments of each parent to support themselves, including the husband as set out in his affidavit material, and I have considered the costs of the carer in caring for these children.

31. It would impose significant hardship on the wife if the current assessment remained in place.  She would not be able to meet the reasonable needs of the children at those levels given the material set out in her affidavit.

32. Accordingly, given the matters set out above, I find that one or more of the grounds for departure under s 117 of the Assessment Act are in place and:-

    (a)It would be just and equitable in regards to the children and the carer to make a change of assessment;

    (b)Further, having regard to the provisions of s 117(5) I am satisfied that it is otherwise proper to make the order. I will make a departure order in the sum of three thousand eight hundred and sixty dollars ($3,860) per calendar month. This departure order will operate from the date of the hearing before me and for a period of two (2) years or such longer or shorter period as is determined by a court exercising jurisdiction under the Family Law Act 1975 (Cth) (‘the Act’).

1. In coming to this conclusion I have had regard to the material set out in the wife’s affidavit and most recent financial statements.  The early financial statement was, it seems to me, more of an ambit claim by the wife’s previous solicitors.

2. This is not as much as is sought by the wife, however, given the change in the circumstances of the company and my view as to the reduction in income of the husband, despite his spending over the last few months, it seems to me that a gross payment to him all told of between $90,000 and $100,000 per year (after tax) is something he could reasonably afford and will leave him reasonable monies available for his own needs.  And I will so order.

SPOUSAL MAINTENANCE

1. This is an application for interim spousal maintenance order pending the outcome of the property and financial proceedings.  I am told that it will take approximately eighteen (18) months from the date of this hearing for this matter to come before a Judge for final hearing unless it settles in the meantime.

2. I am aware that the wife is residing in the former matrimonial home and that the husband is meeting normal loan repayments in respect of the mortgage on the home, council rates, water rates and other outgoings in respect of the home.

3. I am aware of his liability for child support and his agreement to pay school fees.  This matter came before me on an interim basis and neither party was cross-examined as to the disputed facts.

4. Given the limited time frame for which the order for spousal maintenance will operate, I note the comments of the Full Court in Redman & Redman (1987) FLC 91-805 the Full Court said, at 76,081 that:-

   … This was an interim orders.  While we agree with the view expressed in Ashton that in principal such an order is one under s74, to which the principals of s72 or s73 may be applicable, as the case may be, the very fact that the order is limited in time imports certain different considerations.  One is that such an order is intended to be reconsidered, quite apart from the variations under s83.

   … this was an interim order. Whilst we agree with the view expressed in Ashton that in principle such an order is one under sec. 74, to which the principles of sec. 72 or sec. 73 may be applicable, as the case may be, the very fact that the order is limited in time imports certain different considerations. One of these is that such an order is intended to be reconsidered, quite apart from a variation under sec. 83.

5. Section 72(1) of the Act provides that:-

   (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).

6. Section 72(1) sets out the three circumstances which may cause the need for maintenance:-

   (a)by reason of having care and control of a child under the age of eighteen years;

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

   (c)having regard to any relevant matter under s 75(2).

1. The Full Court in Bevan & Bevan (1995) FLC 92-600 set out the process in determining spousal maintenance applications as:-

   Taken together then, we would state the law as being that an award of spousal maintenance requires:

   1.a threshold finding under s72; 

   2.consideration of s74 and s75(2);

   3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and

   4.discretion exercised in accordance with the provisions of s74, with "reasonableness in the circumstances" as the guiding principle.

2. The first question is whether the wife is unable to support herself adequately. 

3. As I said earlier, the wife was employed by the husband’s company.  She is no longer working there.  She has no other training at this time.

4. The wife has the care of the children and the wife does not enjoy good health given the material set out in her affidavit and given the circumstances of the breakdown of the relationship.

5. This is also added to by the stress that is on the children.  I accept, to a limited degree, the extent of the impact of parenting these three young children on a full time basis in the circumstances in which the wife finds herself.

6. Given the standard of living that the wife enjoyed prior to separation and given her present circumstances to which I have referred earlier, I am satisfied that the wife is unable to support herself.

7. Counsel for the husband asserted that the wife had an earning capacity which she had chosen not to explore since separation.  Given the circumstances of the break-up and the type of work she has done, I do not accept that submission, at this time.

8. That may be something that can be argued at the final hearing.  It was perhaps a little disingenuous for the husband to assert that he was willing to provide the wife with a reference given the extent of the conflict between the parties.

9. The children have had many days away from school since separation and it is likely that that separation had an effect on the children, as well as the wife.  There is some evidence that the wife had been under stress due to the nature of the relationship and her view that she had been mentally and physically abused over a period of time.[3]

   [3] At page 55 of the wife’s affidavit filed 21 July 2016.

10. Of course this is untested.

11. The husband challenged the wife’s evidence as to the adverse mental health impacts on the children following the breakdown of the parent’s relationship.

12. The husband contended that the wife should have produced a medical report.  This was curious and disingenuous submission, given that a single expert psychiatrist, Dr E, had been commissioned to prepare such a report and he had seen the children and parties in late August and early September 2016 and that he was preparing the report, the release of which was imminent.  The report in fact became available within a few days of the initial interlocutory hearing.

13. The wife sought to adduce the report in evidence.  On learning of the availability of the report, I requested my associate to email the parties asking if they consented to a reopening to admit the untested report or alternatively, to avoid further cost, have it dealt with by short written submissions.  This would have avoided the need of another court event.  Rather than adopt this sensible and cost saving approach, the solicitor for the husband sought to bargain with the Court, which was at the very least, unfortunate.

14. Consequently, an event was scheduled and the interim hearing resumed on 21 November 2016. Leave to reopen was given and the report of Dr E dated 17 October 2016 was read into evidence, albeit untested.

15. The need to attend court on that date for that issue was a waste of time, the parties’ precious resources and the Court’s limited resources.

16. I had regard to Dr E’s assessment of each of the children and his conclusion and recommendations.[4]  I have considered the evidence of stress on the children and how each of them is or is not coping.  The children have missed time at school and the youngest child is presently treated by a psychiatrist.

    [4] Report of Dr E dated 17 October 2016 attached to the affidavit of Ms Foley filed 4 November 2016 – assessments pages 20 to 35 and conclusion and recommendations pages 35 to 42.

17. Having considered all of the evidence and circumstances the Court determines that the wife, by reason of having the care and control of the children of the marriage and by reason of her health and other relevant factors, has a need for spousal maintenance.  As such, I will consider what constitutes her reasonable needs and the husband’s capacity to pay.

18. The wife has a motor vehicle available to her and has occupation of the former matrimonial home.  The husband has agreed to meet payments of council rates, water rates and the like, and will continue to do so.  In her affidavit material the wife said that her needs amounted to approximately $1,500 per month.

19. I am satisfied that the wife’s reasonable needs per week amount to:-

    -    Food  $100

    -    Household supplies  $50

    -    House repairs  $50

    -    Gas  $20

    -    Electricity  $138

    -    Telephone   $10

    -    Motor vehicle petrol  $100

    -    Motor vehicle maintenance about  $60

    -    Fares and parking  $25

    -    Clothing and shoes  $50

    -    Medical, dental and optical  $20

    -    Entertainment/hobbies  $50

    -    Holidays  $150

    -    Chemist  $10

    -    Repairs, furnishings and appliances   $10

    -    Dry cleaning  $10

    -    Books and magazines  $11

    -    Gifts  $20

    -    Hairdresser, toiletries  $30

    -    Wi-Fi  $25

    -    Foxtel  $28

    -    Dog grooming      $10

    TOTAL  $977

20. There have been a number of items claimed by the wife to which I have made changes. 

21. Firstly, the husband said he would pay the house repairs, gas, electricity, heating, telephone, Wi-Fi and Foxtel.  Given the wife’s concerns about controlling behaviour and given the interim apprehended violence order and accepting the submissions of senior counsel of the wife there is no reason why she cannot meet these expenses herself.  Accordingly, I have included those expenses in the allowance I propose to make.

22. The house repairs were undocumented and the amount of $62 per week seemed a little high.  I have reduced that claim to $50 per week.

23. Similarly with petrol and the wife not undertaking paid employment, the claim of $150 was high and I have reduced that amount to $100 per week.

24. As to the motor vehicle maintenance, the wife deposed that she spent about $3,000 a year on servicing the car. I allowed the motor vehicle maintenance expenses to about $3,000 per year and provided if it is over that amount a previous order imposing an obligation on the husband should cover such additional cost, if any.

25. The wife sought gardening and lawn mowing of $60 per week, cleaning of the house of $140 per week and pool cleaning of $35 per week.  Her nephew, who works for the husband, offered to do the outside work.  The wife asserts that this would be uncomfortable given that the nephew works with the husband.  I do not accept that explanation.

26. If work can be done at no charge and it is outside the home and it is a relative of the wife I see no difficulty with that approach.  In addition the wife lives at the home, is not in paid employment and has three teenage children who, with some encouragement, may be able to assist her in those tasks.  Accordingly, I will not be allowing those sums.

27. The wife sought medical, dental and optical at $50 per week.  As I understand it there is medical insurance and I have reduced that sum to $20 per week.

28. The final amount was the wife’s personal trainer at $60 per week.  Given all of the circumstances of this case I am not satisfied that I should include that in the wife’s reasonable expenses on this interlocutory proceeding.

29. I am therefore satisfied that the wife has needs of some $4,234 per calendar month.

THE HUSBAND’S CAPACITY TO PAY

1. I refer to the husband’s circumstances earlier and I am satisfied that he has the capacity to pay this out of the income earned from the business, notwithstanding the downturn in business to which he alludes and given that the income that would otherwise have been paid to the wife, essentially by way of income splitting, now rests with him.

2. Counsel for the husband asserted that the husband did not have the capacity to meet an order.  The husband’s company had a turnover of slightly under $1.3 million in 2016.  This was a significant drop in income.

3. There was a loss to the business and that is reflected no doubt in the reduction of the savings in the business from approximately $620,000 to about $420,000.  However, as I have said earlier, I am satisfied that the husband still derives a strong income from the business likely to be in excess of $200,000 per year.

4. In addition the husband’s car and other expenses seem clearly to be run from the business.  The husband complains that he has been put to additional expense because of the nature of these proceedings.  That can be remedied, if it is in fact a problem, by way of costs orders at the end of the proceedings and I am satisfied that given the husband’s time away over the months of June, July, August and early September that he has not been as assiduous in terms of dealing with these proceedings as he may otherwise have been.

5. I have had regard to the drop in the businesses profit as a result of the loss of the client. 

6. Both the parties are in reasonable health, although the wife struggles, as I have indicated earlier.  Whilst the company is performing poorly at present, I am satisfied that the husband has the capacity to earn a strong income through this company.

7. The wife has the care of the three children of the marriage and I refer to my earlier comments made about them.

8. The parties had a high standard of living during the marriage and that has diminished as a consequence of their marriage breakdown and the reduction in turnover of the company.

9. I accept that the husband is staying with his sister at the present time and has some wish to find his own accommodation.  The husband has been able to provide significant monies for his travel over that period of time, to which I have alluded earlier.

10. The husband asserted that the child support assessment currently in place and prior to any departure is not meagre.  I disagree.  It is meagre given the circumstances of these children and these parties.

11. Given all of those circumstances I am satisfied that there ought to be an interim spousal maintenance order in favour of the wife and I make it at the rate to which I referred to earlier.

LUMP SUM PROPERTY

1. The wife has had access to significant funds so far.  An order made by me in September 2016 provided a payment to her of $28,000 and there was an order made on 15 June 2016 of this year of a payment of $120,000.

2. The wife needs funds to prosecute the litigation and to ensure that the parties financial circumstances are properly disclosed.  This is based upon the estimated costs of a five day hearing some year and a half away.  Hopefully these parties may find a solution to this before that time.

3. This is not an interim costs application; it is an interim property application.  However, the company is under some stress as are the parties.  There are sums available including the draw down from the Commonwealth Bank and funds in the company, which would inevitably attract some tax consequences if paid by a dividend or if in the longer term paid by way of directive loan. 

4. Given all of those circumstances and given the needs set out in the wife’s affidavit I am satisfied that there ought to be an interim property order in favour of the wife in the sum of $100,000.

5. Given all of those circumstances I will so order.

6. The wife sought some form of enforcement provision and leave to come back to the Court, however, given that the husband has substantially complied with orders so far I see no reason to place those provisions in these orders and I will not do so.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 December 2016.  

Associate:     

Date:              7 December 2016