Gaertner and Frubink

[2017] FamCA 152

FAMILY COURT OF AUSTRALIA

GAERTNER & FRUBINK [2017] FamCA 152

FAMILY LAW – SPOUSAL MAINTENANCE – interim – factors considered – where evidence is insufficient to establish inability to support oneself.

Family Law Act 1975 (Cth)

APPLICANT: Mr Gaertner

RESPONDENT: Ms Frubink

DATE DELIVERED: 15 March 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 17 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Howard

SOLICITOR FOR THE APPLICANT: Armstrong Legal

SOLICITOR FOR THE RESPONDENT: Neilan Stramandinoli Family Law

Orders

1. The wife's application for spousal maintenance in her Response to Initiating Application filed 27 January 2017 is dismissed.

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 Gaertner & Frubink 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 CANBERRA

FILE NUMBER: CAC1900 of 2016

Mr Gaertner

Applicant

And

Ms Frubink

Respondent

REASONS FOR JUDGMENT

1. This matter was adjourned for hearing today in relation to two matters, the first being the question of whether or not Australia is the appropriate forum and the second as to an interim spousal maintenance application by the wife.  At the commencement of the hearing both parties conceded Australia is the appropriate forum. 

2. This left the issue of whether the husband should pay spousal maintenance to the wife. 

3. The parties are both in their mid-forties.  They met in the Middle East in 2009 while working with a multinational organisation.  They started to live together in December 2011, shortly after having married in Europe.  The wife is from Europe and the husband from Australia. 

4. In August of 2015 they entered into a two year lease on a property in Canberra.  They separated sometime in the first half of 2016 with the wife remaining in the property that they had leased.  She still remains there. 

5. The wife has struggled to find employment since arriving in Australia, initially she says, due to visa restrictions.  She eventually found employment, with the employment ceasing in September 2016.  Since that time she has not been employed.  In order to support herself she has sold some items of furniture and has borrowed or otherwise obtained money from relatives.  There is a significant shortfall in her ability to meet her weekly expenses by reason of this unemployment. 

6. The expenses that she incurs were not the subject of any significant dispute.  Both of the parties accepted that her rental accommodation is more expensive then would be ideal, at $720 per week.  However, each of the parties accepts that it is unclear what the ramifications would be for her to end the lease, the lease having provision for the landlord to obtain compensation for a breaking of the lease in the ACAT.  Further, both of the parties accept that there are significant difficulties in the wife obtaining other accommodation at present as she is unemployed.  They accept that it is a difficult circumstance in which to obtain further accommodation.  Otherwise, there is no critique of the wife’s expenses.  Given those circumstances I accept that the self-support expenses set out by the wife are reasonable. 

7. The husband is currently employed.  At the commencement of the proceedings the wife changed her application from seeking approximately $1,100 per week in spousal maintenance to $800 per week in spousal maintenance from the husband.  This came from the wife’s assessment of the husband’s capacity.  Initially it was not apparent that the husband bore such a capacity until an issue relating to his superannuation as recorded on his financial statement was clarified.  On clarification of that matter the husband conceded that he had a capacity to support the wife to the sum of $800 per week.  This then matched the wife’s application. 

8. The real question in the proceedings became one of whether the wife is unable to support herself adequately, as set out in s 72 of the Family Law Act 1975.  

9. The issue of the wife’s inability was the subject of evidence by the wife both as to the fact of her unemployment since September 2016 and of efforts that she made to obtain employment. Her initial affidavit contained a general assertion as to unsuccessful efforts to obtain employment, without any particulars. Her affidavit in reply to the husband’s affidavit set out more specifically various efforts that she had made to obtain employment. Pages 13-24 of her reply affidavit contain annexures showing the wife’s pursuit of work since shortly before her last contract ended, through to recent attempts to obtain work through an employment agency. In December 2016 she applied for work with the public service and in early 2017 with a number of organisations. These were put forward to demonstrate that the wife is actively seeking work, but without success. This was asserted to constitute a meeting of the threshold contained in s 72 that the wife is unable to support herself adequately.

10. In answer to this evidence, the husband relied upon exhibit H1, a tender of material produced on subpoena by the employment agency.  In summary, the husband asserted that this indicated that the wife was only seeking employment in the $90 to $121 per hour range (calculated as, if undertaken on a full-time basis, an annual income of between $163,000 and $220,000).  Further, the wife had indicated that she was only seeking work contracts to last between three and twelve months.  In support of this the husband referred to tags 1-8 on exhibit H1.  Importantly tag 2 indicated that the wife’s previous employment rate was at $75 per hour.  Tag 5 indicated a nominated rate of $90-$95 per hour (in January 2017) and tag 6 indicated an expected salary of approximately $120 per hour plus GST, as at September 2016.  Tag 8 referred to a willingness to obtain work at the EL2 equivalent (executive level 2 in the public service) but no evidence was adduced to set out what the remuneration range might be for this.  This indication of a willingness to work at the EL2 level came from September 2016.  In particular, there was no evidence as to any attempts or inquiries in relation to employment at a rate below the level of $90-$121 per hour.

11. The contention raised for the husband is that the work pursued by the wife is at higher rates then those previously received by her up until September 2016. While he accepted that it is appropriate for the wife to seek her ideal work, an inability to secure ideal work did not equal an inability to support herself.  His case was that a failure to pursue work at a lower level, including at the level of her previous work, did not constitute a demonstration of inability. 

12. In order to obtain a maintenance order, the onus is on the applicant to prove an inability to support herself adequately.  Here there is evidence of unemployment, and evidence of attempts to secure employment.  While the wife asserts that she has been actively seeking employment, the specific examples given are, as far as it can be determined, significantly above her previous pay level.  The evidence does not show any search for, or inquiries made, or attempts to obtain work at the previous level.  There is no evidence as to a lack of positions at the previous level.

13. This is a significant gap in the evidence led by the wife.  It means that I am not satisfied that the wife at present has an inability to adequately support herself.  This means that the application for maintenance fails.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 March 2017.

Associate: 

Date:  15 March 2017