Garwin and Garwin

[2009] FamCA 959

FAMILY COURT OF AUSTRALIA

GARWIN & GARWIN [2009] FamCA 959

FAMILY LAW – MAINTENANCE – interim spousal

Family Law Act 1975 (Cth) ss 72, 74 & 75

APPLICANT: Ms Garwin

RESPONDENT: Mr Garwin

FILE NUMBER: SYC 4531 of 2009

DATE DELIVERED: 22 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 22 September 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Adrian Twigg & Co

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders

1. That by consent orders and notations are made in accordance with the document titled “Draft Minute of Consent Order” marked Exhibit 1.

2. That the husband pay to the wife or as the wife may direct by way of interim spousal maintenance the sum of $2,300 per week until further order.  First payment within seven (7) days from today’s date and payments weekly thereafter.

IT IS NOTED that publication of this judgment under the pseudonym Garwin & Garwin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4531 of 2009

MS GARWIN

Applicant

And

MR GARWIN

Respondent

REASONS FOR JUDGMENT

1. There is a residue of a case here about interim spousal maintenance.  The parties had other financial issues that were resolved by orders made by me on an earlier occasion which included, among other things, the distribution to the wife of something like $200,000.  The character of that payment was not identified to be spousal maintenance. 

2. Maintenance is a remedy available between parties who have been married whether the marriage is on foot or not.  Where one party can establish that they cannot adequately support themselves from their own resources, for a proper reason, the other party can be called on to provide that support to the extent of his or her reasonable capacity. They are always unsatisfactory proceedings.  The problem is that in an interim proceeding, the Court is rarely in a position to make a finding of fact on a disputed issue of fact.

3. On one view you could take the approach that the husband puts into issue all of the wife’s substantial expenses and therefore no decision is possible.  That is not the end of the matter.  It seems to me that the subtext of section 72, 74 and section 75, is that the parties should live decently between the time that the marriage breaks down and there is a resolution of their finances, as they would have wanted for each other at any time during their 16 years of cohabitation.

4. On the point of separation, suddenly the parties are in a different interest. The person whose role in the marriage was largely as a breadwinner suddenly has a conflict of interest. The other party was typically not involved in business arrangements and is left, to an extent, vulnerable and in need of ongoing support.  The authorities have it that a person is not required to exhaust their capital resources in pressing a claim for maintenance. 

5. There is a necessary lack of exactitude about the parties’ finances.  The wife estimates that she spends $300 a week in total on food. In fact there will be no week when she spends $300 a week.  Some weeks she will spend $350 and maybe there is a week where she spends $262. The idea of a Financial Statement is that parties do their best to try and work out a weekly estimate of their outgoings by reference to what has gone on in the past and what they know the future. 

6. It is not the end of the world if this calculation is slightly awry.  If I underestimate her expenses, there is a fallback position that keeps the wolf from the door in relation to the wife.  She has access to $120,000, being the residue of that capital fund.  If I overestimate her expenses, then there is a home for the husband’s complaint in relation to that, in terms of an argument about an imbalance of contribution after separation.  If the husband is able to make the case that is sought to be pressed today, and that is that the wife is hiding a claim for property settlement under the guise of interim spousal maintenance, then there is a happy home for that argument in terms of preliminary distributions through Townsend’s case and the other authorities, in that regard.

7. It is a pleasure to hear a case like this. There is no child in trouble and there are enough funds for the parties to live decently. It seems to me that the justice of the case would be met by a payment of $2,300 a week.  I order that the husband pay to the wife, or as the wife may direct, by way of interim spousal maintenance, the sum of $2,300 a week, until further order.   The first payment is to be made within seven days and payments to be made weekly thereafter.

8. That sum has been arrived at by me paring down amounts in relation to petrol, fares and car parking, entertainment and hobbies, and by adding back in an amount that is not reflected in the wife’s July Financial Statement, being $780 for rent.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  7 October 2009