GARCIA and GARCIA
[2014] FCWA 80
•12 DECEMBER 2014
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GARCIA and GARCIA [2014] FCWA 80
CORAM: WALTERS J
HEARD: 24 NOVEMBER 2014
DELIVERED : 12 DECEMBER 2014
FILE NO/S: PTW 2792 of 2014
BETWEEN: MR GARCIA
Applicant
AND
MRS GARCIA
Respondent
Catchwords:
FAMILY LAW – PARENTING – where father seeks interim orders regarding spending time with child during Christmas holidays – where his proposals involve a significant change to pre-existing care arrangements – where it is not in child’s best interests to make such a significant change on an interim basis
FAMILY LAW – INTERIM SPOUSAL MAINTENANCE – where mother is ineligible for Government benefits – where father concedes capacity to pay, but claims amount currently paid to mother is sufficient for her to adequately support herself – where issue is quantum of payment – case turns on its own facts
Legislation:
Family Law Act 1975 (Cth), Div 12A of Pt VII, s 66H, s 66 J, s 66K, s 72, s 74, s 75, s 77,
s 80(1)(h)
Category: Not Reportable
Representation:
Counsel:
Applicant: Ms J Johnson
Respondent: Ms T Farmer
Solicitors:
Applicant: Kim Wilson & Co
Respondent: Paterson & Dowding
Case(s) referred to in judgment(s):
Bevan & Bevan (1995) FLC 92-600
Brown and Brown (2007) FLC 93-316
Eades & Wrensted [2014] FCWA 15
Mitchell & Mitchell (1995) FLC 92-601
Redman & Redman (1987) 11 Fam LR 411
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
1Before the Court are the parties' competing interim applications relating to certain parenting issues and the wife's application for interim spousal maintenance.
2The husband is employed as an engineer. He is 36 years of age.
3The wife has tertiary qualifications in science, but is not currently employed. She is 28 years of age and regards herself as "a full-time parent".
4Both parties were born in the United States. They met in Colorado in 2010 and married a short time later, [in] 2010, in Las Vegas, Nevada. They commenced living together at the date of the marriage.
5The parties decided to relocate to Australia after the husband obtained employment in Perth. The husband arrived here in January 2012. The wife arrived in May 2012.
6There is one child of the marriage. Her name is [A]. [A] was born [in] 2012, shortly after the parties' arrival in Perth. It follows that she is approximately 2½ years of age.
7The marriage was not a happy one, and the parties separated on 9 January 2014 in circumstances that are not presently relevant.
8Following the breakdown of the marriage, the wife left Australia in mid-March 2014 and returned to the United States. She took [A] with her. The husband says that she did so without his knowledge or consent.
9The husband then commenced proceedings under the Hague Convention on Civil Aspects of International Child Abduction seeking the immediate return of [A] to Australia.
10On 6 May 2014, orders were made in a court of competent jurisdiction in the United States providing for [A’s]'s return to Perth. The orders were made by consent.
11The wife returned to Perth, with [A], in mid May 2014.
12On 20 May 2014, the husband filed an initiating application in this Court. He sought interim parenting orders but did not particularise the final orders sought. The wife filed a response to the husband's initiating application on 13 June 2014. Among other things, the wife sought an order permitting her to "permanently relocate [[A]] to the United States".
13Since that time, both parties have filed amended applications – as a result of which the dispute now relates to both parenting issues and property settlement. Spousal maintenance is also in dispute.
14The proceedings came on for hearing before me on 24 November 2014. The issues for determination on that day included –
a)the husband's applications for:
i)an order to the effect that the provisions of Division 12A of Pt VII of the Family Law Act 1975 should not apply to a certain evidentiary matter;
ii)the appointment of two single experts: one to provide a report in relation to broad parenting issues and the other to provide information regarding "current social science research in the area of relocation of children";
iii)fixing of the time he is to spend with [A] pending determination of the proceedings and, in particular, during the month of December 2014; and
iv)orders requiring the wife to vacate the R Street property; and
b)the wife's applications for:
i)partial property settlement; and
ii)interim spousal maintenance.
15A number of the issues referred to in the previous paragraph were resolved without the need for argument. Relevantly, the court made the following orders:
1.Until further order, the husband must sign all such documents and do all such acts and things as shall be reasonably necessary to cause or assist the wife to remain in exclusive occupation of [the R Street property].
2.Both parties have leave to apply at short notice in the event of notice (in any form whatsoever) being given to either party to the effect that the wife's exclusive occupation of [the R Street property] is to be terminated or might otherwise be at risk.
3.By not later than 4.00 pm (AWST) on 24 December 2014, the husband must pay or cause to be paid to the wife's solicitors the sum of A$70,000 net ("the lump sum"), on the basis that the lump sum should be used by the wife for her legal fees and disbursements.
4. The lump sum be characterised as partial property settlement for the wife.
5.The question of characterisation of the fees and expenses associated with the transfer and/or payment of the lump sum to the wife be an issue for trial.
6.Pursuant to s 69ZT(3) of the Family Law Act 1975 (Cth) and/or s 202H(3) of the Family Court Act 1997 (WA), the rules of evidence shall apply to any documents or evidence sought to be relied upon by the parties or either of them regarding the marriage of the husband to his former wife, [Mrs Garcia].
7.Pursuant to section 69ZW of the Family Law Act, the Manager of Communicare do provide the Court with the documents or information specified hereunder in relation to [Mr GARCIA] born [in] 1978 and [Mrs GARCIA] born [in] 1985 for the period 7 July 2012 to present:
(a)Reports prepared for the purposes of Magistrates Court proceedings against the Applicant;
(b)Assessments and notes of assessment for the said [Mr GARCIA] as participant in the program known as Families without Fear, and by way of support to the said [Mrs GARCIA];
(c)All correspondence from or to either party, including any notes of telephone discussions or meetings between Communicare and either party; and,
(d)All application or other forms completed by either party for the purposes of their involvement with Communicare.
8.All issues regarding the appointment of a single expert or experts be adjourned for further hearing on Monday 8 December 2014 at 10.00 am, before Walters J in the Judicial Duty List.
AND IT IS NOTED THAT:
9.The order in paragraph 6 above was not made by consent, but was made without opposition from the wife.
10.The Court’s determination regarding the issues of interim and holiday spend time arrangements and spousal maintenance (which were argued on 24 November 2014) has been reserved to a date to be fixed.
16The remaining issues could not be resolved by agreement or without argument. They comprised the time that the husband is to spend with [A] in December 2014 and beyond and the quantum of spousal maintenance to be paid by the husband.
The husband's time with [A]
17Although the law now refers to a child “spending time” with a person with whom the child does not live, I shall use the obsolete term “contact” from time to time in these Reasons. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
18[A] lives with the wife in the R Street property. The husband has contact with her in accordance with orders made on 16 June 2014. Those orders are in the following terms:
… [The husband] spend time with [A] as follows:
(a)from 3.30 pm to 7.00 pm each Wednesday;
(b)for a period of 3½ hours each Saturday, provided that [the wife] do notify (an agreed person] when [A] wakes and is to be delivered to [the husband's] home, and [the husband's] time with [A] commence from her delivery to [the husband's] home;
(c)each Sunday from the time of [A's] delivery to [the husband's] home in accordance with [the preceding paragraph] until 7.00 pm; and
(d)every fourth Friday, commencing on 27 June 2014, from the time of delivery to [the husband's] home in accordance with paragraph (b) above for a period of 3½ hours.
19The husband also spends time with [A] at other times, in accordance with arrangements that have been agreed between the parties from time to time.
20It was asserted on behalf of the husband that he is presently spending time with [A] –
a)each Saturday night (such night being incorporated in the husband's contact with [A] from either 6.00 pm on Friday to 7.00 pm on Sunday or 3.30 pm on Saturday to 7.00 pm on Sunday);
b)each Tuesday, Wednesday and Thursday from 4.00 pm to 7.00 pm; and
c)each fourth Friday from 9.00 am to 6.00 pm (which time is incorporated into the weekend arrangements described in (a) above).
21The wife disputed that the husband is having contact with [A] every Tuesday, Wednesday and Thursday evening.
22Regrettably, the precise details of the husband's contact with [A] are less than clear. Suffice it to say, however, that the husband appears to be having [A] for – at least – three overnight periods per fortnight and approximately 3½ hours each Wednesday.
23On 8 October 2014, the husband filed an application in a case. Among other orders, he sought that his time with [A] the increased to the following:
a)from Wednesday at 3.30 pm to Thursday at 8.30 pm in each week;
b)each alternate week from 3.30 pm on Friday to 8.30 am on Monday (with the time to commence at 8.30 am on each fourth Friday – to coincide with his monthly rostered day off);
c)from 12 noon on Saturday to 8.30 am on Monday in each other week; and
d)at such other times the parties agree in writing.
24In other words, the husband sought orders to the effect that he spend seven overnight periods per fortnight with [A], this being something close to an equal shared care arrangement.
25The husband also sought orders to the effect that he be permitted to take [A] to the United States for a holiday. Relevantly, he proposed that the holiday should be from 26 November 2014 to 1 January 2015. In the alternative, he sought an order that [A] live with him from 22 December 2014 to 22 January 2015 (with the wife to have [A] overnight on Christmas Eve and for seven hours on two other days). The husband also proposed that [A] should have regular Skype or FaceTime contact with the wife.
26In her response to an application in a case filed 20 October 2014, the wife sought orders to the effect that the husband have contact with [A] –
a)each Wednesday from 3.30 pm to 7.00 pm;
b)each alternate week from 12 noon on Saturday to 7.00 pm on Sunday; and
c)each other week from 6.00 pm on Friday until 7.00 pm Sunday (with the time to commence at 9.00 am every fourth Friday – to coincide with the husband's monthly rostered day off).
27The wife also sought orders relating to the December 2014/January 2015 period. She opposed the block contact periods of approximately one month sought by the husband and proposed, instead, that the husband have regular daytime and some overnight contact with [A] over the period from Christmas Day 2014 to 21 January 2015. If the husband was not to be in Perth, then the wife proposed that he have regular Skype or FaceTime contact with [A].
28On 11 November 2014, the husband filed an amended application in a case. In it, he sought orders to the effect that he have contact with [A] –
a)from 4.00 pm to 7.00 pm each Tuesday, Wednesday and Thursday;
b)each alternate week from 3.30 pm on Friday to 7.00 pm on Sunday (with the time to commence at 4.00 pm every fourth Friday – to coincide with his monthly rostered day off);
c)from 3.00 pm on Saturday to 7.00 pm on Sunday in each other week; and
d)at such other times as may be agreed between the parties in writing.
29It is clear from the above that the husband had abandoned his proposal for something close to an equal shared care arrangement on an interim basis.
30The husband did not seek to amend the orders he had sought regarding holiday contact with [A]. In other words, he continued to seek a block period of approximately one month for the purpose of taking [A] with him to the United States.
31On 19 November 2014, the husband's solicitors forwarded detailed written submissions to the Court. The submissions comprise 27 pages, only two of which relate to the husband's contact with [A].
32In relation to the husband's proposed order regarding contact with [A] generally, the written submissions contain a single paragraph:
It is submitted the orders sought by [the husband] are in line with the current arrangement and that orders should be made to reflect the arrangement. This will reduce the scope for disagreement between the parties and ensure the continuation of [A]'s] relationship with [the husband].
33In relation to the husband's proposed orders regarding holiday contact with [A], the written submissions indicate that the husband has "amended his plans". He now proposes that his family will travel from the United States to Australia over the Christmas period, but that he will still take leave in order to spend time with them and [A]. The husband asserts in the written submissions that he has amended his plans because the wife has said that her sister will be travelling to Perth from the United States over the Christmas period.
34Somewhat confusingly, the written submissions appear to leave open the husband's proposal that he should be permitted to travel to the United States with [A]. The submissions at [156(c)] are as follows:
… if he is not permitted to travel with [A] to the US and his family travel to Australia, then weekly contact with [the wife] in addition to daily Skype, FaceTime or other communication.
35In other words, the husband appeared to be proposing that he should have a block period of one month (or thereabouts) with [A] in Australia, and that that period should only be interrupted by "weekly contact" (presumably, weekly face-to-face contact) with the wife and daily electronic communication.
36When the matter was argued on 24 November 2014, Ms Johnson (for the husband) made it clear that the husband no longer proposed to travel to the United States with [A]. The only question for determination (in relation to holiday contact) was the amount of time [A] should spend – in Australia – with each of the parties and their family members.
37Ms Johnson also advised the Court that the husband would be taking leave during the month of December 2014 and that his previous proposals should be modified accordingly. Ms Farmer (for the wife) said that the first her client had heard of the husband's plan to take leave during the whole of the month of December was on the evening before the hearing on 24 November 2014.
38Ms Farmer submitted, and I accept, that the husband's proposals for the Christmas period would involve a very significant change to pre-existing arrangements as they relate to [A]. [A] has never spent more than five nights away from the wife, and the only occasion on which a stay of that duration occurred was when A was younger and spent time with the husband's parents in the United States. She was then only 13 months of age. The wife described the arrangement in her affidavit sworn 20 October 2014:
[48]Since birth, [A] has only spent a maximum of five days away from me on one occasion. This was in August 2013 when I travelled to the United States with [A]. [The husband] had insisted as part of the conditions for me being able to go was that she spent three weeks equally with each set of grandparents. In order for [A] to feel comfortable spending time with [the husband's] parents alone, I spent the first two weeks with [A] in their home, acclimatising [A] to their house and making sure she felt comfortable.
[49]I then allowed [A] to spend five days alone with her grandparents, as I thought this would be very good for [the husband's] parents. I spoke to them every day during this time. …
[50]Although [A] managed with this time away, she was only 13 months at that time and less aware of me not being present. …
[61]… Since May 2013, [A] has not spent any night away from me other than those that she spent with [the husband].
39There can be no doubt that the wife is [A's] primary caregiver. On the basis of the limited evidence available to the Court, I am not satisfied that [A] would be able to cope satisfactorily with the extended period away from the wife as proposed by the husband. It is, in effect, an untried arrangement. It would not be in [A's] best interests to experiment with such an arrangement on an interim basis. The parties' evidence has not been tested and the Court has not had the benefit of expert or other independent evidence as to the likely effect on [A] of such a significant change to the pre-existing contact arrangements.
40I discussed the law relating to applications concerning children (or, more accurately, applications for parenting orders) in Eades & Wrensted [2014] FCWA 15. Given the very limited nature of the current dispute, it is unnecessary for me to repeat that discussion. Suffice it to say that [A]'s] best interests comprise the paramount consideration in determining the parties' contact dispute.
41Ms Johnson conceded that the arrangements for non-holiday contact (being contact at times other than during December 2014) were largely agreed. It follows that the Court was being asked to do little more than "fine tune" those arrangements. The orders set out below are intended to ensure that [A] spends as much time with the husband as is consistent with her interests. I am satisfied that the time reflected in the orders enables [A] to have a meaningful relationship with both of her parents and cushions her from any potential adverse effects which could arise from a significant increase in the amount of time that she spends away from the wife.
42In relation to contact during December 2014, I am conscious of the fact that it was not until immediately before the hearing on 24 November 2014 that Ms Farmer and her client became aware of the husband's proposal to take leave during the whole of December and to seek to spend as much time as possible – in Australia – with [A] during that period.
43As I have indicated, the written submissions prepared on behalf of the husband were of little assistance in resolving the dispute regarding the husband's contact with [A] in December 2014. Once again, I have had [A]'s best interests uppermost in my mind as I have considered the contact arrangements proposed by each of the parties for this time. The orders that I have made relating to the relevant period are intended, as are the long-term interim contact orders, to ensure that [A] spends as much time with the husband and his family as is consistent with her interests. I am satisfied that the orders relating to the holiday period will also minimise any potential adverse impact on [A] arising from a significant (and immediate) increase in the amount of time that she spends away from the wife while allowing her to have a meaningful relationship with both of her parents. I am also satisfied that the husband has the capacity to provide for [A]'s needs (in the broadest sense) during the time that he is to spend with her pursuant to the orders.
44On the basis of the evidence currently available to me, I am satisfied that any form of equal time shared care arrangement for [A] would be inimical to her best interests at this time. That is not to say that such an arrangement cannot be considered at some time in the future when all relevant evidence is available to the Court. At the present time, however, there is no adequate reason (relating to [A]'s best interests) to put in place an arrangement which is new and untried and which may cause [A] distress. Further, there is no evidence that the arrangements proposed by the husband are more likely to be in [A]'s best interests than a relatively modest variation of the current arrangements (which, by and large, have worked satisfactorily). Put another way, the game is not worth the candle.
Spousal maintenance
45The wife's claim for interim spousal maintenance is contained in pars 3, 4 and 5 of her amended response to initiating application filed 6 October 2014. In summary, she seeks orders to the effect that the husband pay –
a)interim spousal maintenance at the rate of $1,275.50 per week;
b)rental payments in respect of [the R Street property]; and
c)a number of additional expenses – being utilities and water usage for the R Street property, contents insurance for the R Street property and the wife's Foxtel, Internet, telephone and Vonage accounts.
46Vonage is a company that provides telephone service via a broadband Internet connection.
47Part VIII of the Family Law Act 1975 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.
48Section 72 is as follows:
Right of spouse to maintenance
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).
49Section 74(1) is as follows:
Powers of court in spousal maintenance proceedings
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.
50Section 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. …
51The role of each of the provisions is important:
… s 72, which concerns the liability of one party to a marriage to maintain the other, says nothing of the amount of maintenance that a needy spouse is entitled to receive from his or her partner should the former enforce this liability by a maintenance order. Quantum of spousal maintenance is determined by the Court pursuant to s 74, taking into account the … considerations set out in s 75(2). It is possible for a liability to pay maintenance to be established under s 72, yet for the subsequent maintenance order to be quite small – or even for no maintenance order to be made at all – on account of the relevance of particular considerations set out in s 75(2).1
52In Bevan & Bevan (1995) FLC 92-600, the Full Court stated 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.
53There is no clear and direct reference to interim maintenance in the Family Law Act. Pursuant to s 80(1)(h) – which is within Pt VIII – the Court, in exercising its powers under Pt VIII, may "make … an order pending the disposal of proceedings … or until further order". Spousal maintenance orders of this nature are referred to as interim spousal maintenance orders, but they are subject to the usual criteria for spousal maintenance as set out in ss 72 and 75. 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 (supra), citing Redman & Redman (1987) 11 Fam LR 411).
54I have not overlooked the Court's power to order urgent spousal maintenance under s 77, but it is unnecessary for me to consider this provision in the light of the manner in which the parties presented their cases.
55It is clear from the above that 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", not only by reason of the matters set out in (a), (b) and (c) of s 72, but also having regard to any relevant matters referred to in s 75(2). Thus, the question whether an applicant for spousal maintenance (or interim spousal maintenance) can support herself or himself "adequately" is not to be determined by reference to any fixed or absolute standard – but by reference to the matters referred to in as 75(2): see Mitchell & Mitchell (1995) FLC 92-601 at 81,995.
56More recently, the Full Court in Brown and Brown (2007) FLC 93-316 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".
57The Full Court in Brown and Brown (supra) 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.
58Ms Johnson conceded that the husband has the financial capacity to maintain the wife. She submitted, however, that "the issue for determination is whether the funds he pays to or on behalf of [the wife] are sufficient for her to adequately support herself": husband's submissions at [101]. The suggestion made on behalf of the husband is that the amount presently being paid for the benefit of the wife is indeed sufficient.
59In other words, it is not in dispute in the present case that the wife passes the threshold test (at least on an interim basis). The husband conceded that the wife is entitled to a payment for spousal maintenance, and the only real issue is the quantum of that payment.
60It is clear that the wife's sole source of income is from the husband and that she does not work in paid employment. Indeed, she does not wish to work in paid employment at this stage, even on a part-time basis. She regards herself as a full-time homemaker and caregiver for [A].
61The wife's expenses are set out in her financial statement sworn 6 October 2014. She asserts that she spends approximately $18 per week in respect of motor vehicle insurance and $18 per week in respect of motor vehicle registration. She also asserts that she spends a total of approximately $1,577 per week in respect of other expenses for herself and [A]. That figure is broken down into approximately $857 per week in respect of expenses for herself and $720 in respect of expenses for [A].
62The wife has not worked since midway through her pregnancy with [A]. Her desire is to be able to continue to care for [A] until she commences school. The wife asserts, and I accept (on an interim basis) that it would be difficult for her to engage in paid employment in Australia without family support to help her with the care of [A]. She also asserts that she is uncertain as to her ability to obtain employment in Australia because her "type of work (Analytical Chemistry) advances quickly" and the knowledge and experience she has in that field may be perceived to be out of date.
63I am not satisfied that the wife has the capacity to obtain and maintain paid employment at this time. That is not to say that the Court might not reach a different conclusion when all relevant evidence has been presented to it at trial. On an interim basis, however, I accept that the wife has the care and control of [A] and that she wishes to continue in the role of full-time caregiver for her.
64Because the wife is not an Australian citizen (or, indeed, a permanent resident) she is unable to obtain Government benefits in Australia. Similarly, she is not entitled to Medicare. As a result, all of her and [A]'s medical expenses must be paid for privately and then reimbursed by her overseas health insurance provider.
65In her affidavit sworn 6 October 2014, the wife deposed to receiving $537.50 per week from the husband by way of spousal maintenance and $337.50 per week from the husband by way of child support (on an informal basis). She is unable to obtain child support from the husband through the Child Support Agency because the parties are not Australian residents for tax purposes.
66The husband pays the wife $250 per month for the care of the parties' three cats (which live with the wife).
67According to the husband, he currently pays the wife $2,150 per month for spousal maintenance, $1350 per month by way of child support for [A] and the additional $250 per month for the cats. He also pays for the R Street property utilities, the wife's home telephone and mobile, Foxtel and Internet, health insurance and car insurance: see husband's affidavit sworn 3 October 2014 at [74].
68Before turning to a consideration of the wife's expenses, it is important to remember that the wife's claim is for spousal maintenance, and not for spousal maintenance and child maintenance. The quantum of maintenance required for the support of [A] was not explored in the documents to which the Court was referred or in the parties' submissions. No separate claim was made by the wife for child maintenance and none of the considerations to which the Court must turn its mind when dealing with such a claim were addressed: see, for example, ss 66H, 66J and 66K in particular and Division 7 of Pt VII of the Family Law Act 1975 in general. It follows that I have ignored [A]'s expenses as described in Part 10 of the wife's financial statement sworn 6 October 2014. I have had regard to the expenses claimed by the wife for herself only.
69Doing the best that I can with the evidence available to me, and taking into account the submissions of both parties, I find that the following weekly figures represent a reasonable allowance for the wife's necessary commitments. Put another way, I find that the following weekly figures represent the amount that the wife requires to support herself adequately:
a)food: $175
b)household supplies: $30
c)telephone: $30
d)motor vehicle (petrol): $40
e)motor vehicle (maintenance): $10
f)fares/car parking: $10
g)clothing and shoes: $75
h)entertainment/hobbies: $50
i)holidays: $50
j)chemist/pharmaceutical: $25
k)cleaning (house/pool): $50
l)repairs (furnishing/appliances): $5
m)dry-cleaning: $10
n)books and magazines: $10
o)hairdressing, toiletries: $25
p)bank fees: $2
70The total of the above expenses is $597, which I shall round up to $600.
71Certain of these figures require comment:
a)Many of the expenses reflect the precise amount as asserted by the wife in her financial statement.
b)The husband appears to challenge the wife's assertion that she spends approximately $30 per week in respect of telephone expenses. He says that he meets the wife's telephone account as part of his agreement with her. It seems clear, however, that he is not presently meeting the wife's mobile telephone account. It seems to me that $30 per week comprises a reasonable allowance for the cost of the wife's mobile telephone.
c)I have allowed an average of $40 per week in respect of petrol and $10 per week in respect of motor vehicle maintenance. In my opinion, a total allowance of $50 per week in respect of these items is reasonable and adequate on an interim basis. I have allocated a greater proportion of the total weekly petrol costs to the wife's use of the car than she allocated for herself, but note that there is no evidence regarding amounts necessary to maintain the car.
d)In my opinion, an allowance of $100 per week for the wife's entertainment/hobbies is likely to be excessive on an interim basis. There is no evidence to support the figure and I have therefore reduced it to $50 per week.
e)In my opinion, the claimed allowance of $50 per week in respect of holidays is reasonable on an interim basis.
f)In my opinion, the allowance of $100 per week in respect of cleaning expenses is excessive, given that the wife is a full time homemaker and caregiver for [A]. I have allowed $50 per week in respect of this item.
g)I have reduced the amount claimed in respect of repairs to furnishings and appliances from $25 per week to $5 per week. The R Street property is a rented property and it seems unlikely that the wife would have to pay anything close to $25 per week in respect of repairs. No evidence was presented to support the claimed figure.
h)The amount of $95 per week for "pet needs" is unexplained. In those circumstances, I regard it as excessive – and seemingly unnecessary given that the husband contributes $250 per month towards the costs of looking after the cats. In any event, the husband has said that he will continue to meet costs for the pets as they arise: see husband's submissions at [119(g)]. This item has been disallowed.
i)The amount of $20 per week for "foreign currency exchange" was effectively unexplained. In other words, I was unable to understand the explanation proffered. No evidence was presented to support it. The item has been disallowed.
j)I have disallowed the total of approximately $36 per week in respect of the wife's motor vehicle insurance and registration. The husband has indicated that he pays the former (see husband's affidavit sworn 3 October 2014 at [74]) and it seems that there is no need to pay the latter in the short to medium term.
72I accept that the approach that I have adopted above is somewhat superficial or "summary", but such an approach is not inappropriate in cases of this nature: see Wilson& Wilson (supra) at [211]. Even if I am wrong in relation to the allowances I have made for the various items of expenditure, I am satisfied that, taken globally, the amount of $600 per week will enable the wife to support herself adequately on an interim basis. I do not accept the husband's submission to the effect that "any further payment [above the current level of spousal maintenance] will … provide for the wife to enjoy a level of luxury simply due to the husband's wealth": see husband's submissions at [124]. The suggestion that the wife will be able to "enjoy a level of luxury" as a result of receiving the spousal maintenance and other benefits reflected in the orders the Court has pronounced is baseless.
73Neither party addressed the s 75(2) factors in any detail. In my opinion, the only matters of relevance within the sub-section are the following:
a)the wife is the primary caregiver for [A], and she wishes to continue in that role;
b)the wife does not appear to have any or any significant earning capacity at the present time;
c)the wife is ineligible for Government benefits; and
d)the husband is paying child support on an informal but agreed basis.
Conclusion in relation to spousal maintenance
74I have already observed that it is not in dispute in the present case that the wife has passed the threshold test imposed by s 72.
75I have considered the provisions of ss 74 and 75(2).
76I 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.
77I understand that that any order that I may be minded to make for interim maintenance for the wife 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.
78I have concluded that a reasonable allowance for the wife's necessary commitments (excluding those items for which the husband is paying separately) is the sum of $600 per week. She has no income and it therefore follows that she has a shortfall of $600 per week.
79It is not in dispute that the husband is able to meet that shortfall.
80When I have regard to all the matters to which I have referred (including the s 75(2) factors), I am conscious of the lack of precision inherent within the determination of spousal maintenance and property settlement issues under the Family Law Act. Inevitably, and perhaps necessarily, this imprecision infects the reasoning used to support awards of spousal maintenance at all levels. If an example is required, then (with the greatest of respect to their Honours comprising the Full Court) the process by which a shortfall of $30.00 per week was converted to an award of spousal maintenance of $50.00 per week in Bevan & Bevan at p 81,980 would probably suffice.
81Take into account all of the factors discussed above, I conclude that an appropriate award of interim spousal maintenance (leaving aside those items for which the husband is paying separately) is $600 per week.
Orders
82Having regard to the findings I have made and the other matters referred to in these Reasons, I propose to make the following orders:
(1)Paragraph 2 of the orders contained in the minute attached to the orders of 16 June 2014 remain in full force and effect (subject to variations which have been agreed upon between the parties from time to time) until 8 PM on Sunday, 30 November 2014, and thereafter be discharged.
(2)With effect from 8.00 pm on Sunday, 30 November 2014, the husband spend time with the child, [A] GARCIA born 12 July 2012 as follows:
(a)from 4.00 pm to 7.00 pm on Tuesday 2 and Wednesday 3 December 2014;
(b)from 4.00 pm on Friday 5 December 2014 to 7.00 pm on Sunday 7 December 2014;
(c)from 4.00 pm to 7.00 pm on Tuesday 9 December 2014;
(d)from 4.00 pm on Thursday, 11 December 2014 to 7.00 pm on Saturday, 13 December 2014;
(e)from 4.00 pm to 7.00 pm on Tuesday 16 and Wednesday, 17 December 2014;
(f)from 4.00 pm on Friday, 19 December 2014 to 7.00 pm on Sunday, 21 December 2014;
(g)from 4.00 pm to 7.00 pm on Tuesday, 23 December 2014;
(h)from 4.00 pm on 25 December 2014 to 7.00 pm on Saturday, 27 December 2014; and
(i)from 4.00 pm to 7.00 pm on Tuesday 30 and Wednesday, 31 December 2014.
(3)With effect from 8.00 pm on Wednesday, 31 December 2014, and until further order, the husband spend time with [A] as follows:
(a)each Tuesday and Wednesday from 4.00 pm to 7.00 pm, commencing Tuesday 6 January 2015;
(b)each alternate weekend from 4.00 pm on Saturday to 7.00 pm on Sunday, commencing Saturday 3 January 2015;
(c)each other weekend from 4.00 pm on Friday to 7.00 pm on Sunday, commencing Friday 9 January 2015 and provided that on 9 January 2015 and on every fourth Friday thereafter the time commence at 8.30 am on the Friday; and
(d)such further or other times as the parties shall agree in writing from time to time.
(4)Subject to paragraphs 6 and 7 below, and until further order, the husband must pay or cause to be paid to the wife the sum of $2,600 per calendar month as and by way of periodic spousal maintenance – such periodic spousal maintenance to be payable on the first day of each month commencing on 1 January 2015.
(5)In addition to the periodic spousal maintenance referred to in paragraph 4 above, and until further order, the husband must pay or cause to be paid the following payments as and when they shall fall due:
(a)the rental payments due in respect of the R Street property;
(b)all utilities, including gas and power, for the R Street property;
(c)all water usage required to be paid for the R Street property;
(d)home and contents insurance on the R Street property;
(e)the Foxtel account at the R Street property;
(f)the wife's Internet account;
(g)the wife's telephone account; and
(h)the wife's Vonage account.
(6)The quantum of periodic spousal maintenance payable by the husband pursuant to paragraph 4 above is conditional upon the husband paying and continuing to pay to the wife (or otherwise causing to be paid) –
(a)the payments referred to in paragraph 5 above; and
(b)the following additional payments:
(i)$1,350 per month by way of child support for [A]; and
(ii)$250 per month for the care of the parties' three cats.
(7)In the event of the husband failing or refusing to pay or cause to be paid to the wife the payments referred to in paragraphs 5 and 6 above, or any of them, the wife have leave to apply – at short notice – for an immediate increase in the quantum of periodic spousal maintenance payable by the husband pursuant to paragraph 4 above.
I certify that the preceding [82] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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1 See Family Law by Dr A Dickey QC (4th Edition — Law Book Co, 2002), at p 468.
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