Gatsby & Gatsby (No 2)

[2012] FamCA 667

FAMILY COURT OF AUSTRALIA

GATSBY & GATSBY (NO. 2) [2012] FamCA 667

FAMILY LAW – SPOUSAL MAINTENANCE – Application by the wife seeking spousal maintenance – Whether the wife is unable to adequately support herself – Where the wife lives very modestly – Whether the wife has capacity for paid employment - Where the wife has not discharged her obligation to demonstrate that she cannot adequately support herself -  Whether the husband is reasonably able to pay spousal maintenance – Where there is no evidence that the husband has capacity to support the wife – Application dismissed.

Family Law Act 1975 (Cth) Sections 72 and 75(2).

APPLICANT: Ms Gatsby

RESPONDENT: Mr Gatsby

FILE NUMBER: SYC 1428 of 2010

DATE DELIVERED: 3 August 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Loughnan J

HEARING DATE: 17 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT WIFE: Wesley Community Legal Service

COUNSEL FOR THE RESPONDENT HUSBAND: Mr Othen

SOLICITOR FOR THE RESPONDENT: Slater and Gordon Lawyers

Orders

1. The Amended Initiating Application of the wife filed 20 December 2011 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 1428 of 2010

Ms Gatsby

Applicant

And

Mr Gatsby

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for spousal maintenance. The parties are divorced but for ease of reference I will refer to them as the wife and husband.

The Applications

1. At the outset of the hearing the wife’s solicitor said that the wife did not press for lump sum maintenance or backdated maintenance. Thus, according to her Amended Initiating Application filed  20 December 2011 the wife seeks the following orders:

   2.        ……. that the respondent pay maintenance to the applicant in the     sum of $940.00 per week, commencing 7 days after the date of this      Order, such Order to continue in force until 13 January 2016.

   ….

   4.        That maintenance under this Order shall be paid by being deposited           into the applicant’s Bank account with Westpac Bank BSB 732-298   account number […]55 in the name of [Ms Gatsby].

   5.        That the respondent pay the applicant’s costs of and incidental to     this application as agreed or assessed.

1. In accordance with the Case Outline document submitted in his case, the husband seeks the following orders:

   1.        That the wife’s contravention application be summarily dismissed.

   2.        If not summarily dismissed, that the wife’s contravention      application be otherwise dismissed.

   3.        That the wife’s spouse maintenance application be dismissed, and    the interim maintenance order made 11 April 2012 be dismissed as         at the date it stands paid.

   4.        Costs.

2. Prior to the commencement of oral evidence and without objection on behalf of the husband, the wife withdrew her Contravention Application filed 23 May 2012.

Documents relied on

1. The wife relied on the following sworn evidence:

   Affidavit of the wife sworn and filed 6 June 2012

   Financial Statement sworn and filed 11 July 2012

1. The husband relied on the following sworn evidence:

   Affidavit of the husband sworn and filed 3 July 2012

   Financial Statement sworn and filed 3 July 2012

The hearing

1. The matter was listed for hearing over two days, commencing on 17 July 2012. On 17 July 2012 when the matter was called I was asked to give husband’s counsel time to take instructions on the late served affidavit of the wife. The hearing commenced with objections but the cross-examination of the parties and final submissions were concluded before 4.00 pm on that day. I invited submissions on costs on the basis of the possible range of outcomes but the legal representatives declined that offer, indicating that they would prefer to address that issue, if necessary, after delivery of judgment. Judgment was then reserved and the parties were excused from attending on delivery of judgment. 

Background

1. The wife was born in 1956 and is 56 years of age. The husband was born in 1956 in and is 55 years of age. They started to live together in or around May 1997, were married in 2003 and separated 1 January or in March of 2010. The parties’ divorce became final on 20 August 2011. 

2. There are no children of the marriage. The husband has adult children from an earlier relationship.

3. The only evidence about the parties’ cohabitation is as follows:

4. On 17 December 2005 the wife chased the husband with a knife and threatened to stab him. The police attended.

5. The husband is the Managing Director and 51 per cent owner of Q Pty Ltd. His business partner owns the remaining 49 per cent of the shares but is not employed in the business and therefore does not receive a wage. I gather that the business is engaged in legal work. The business has employed lawyers and others to undertake the technical work. The husband is not engaged in that work. He runs the business, deals with the clients, negotiates disputes and is responsible for developing the business. It was the husband’s evidence in cross-examination that the business has run at a loss for the last four to five years.

6. For about seven years until 14 December 2009 the wife was employed in the business as a secretary.

7. The parties commenced proceedings for agreed property settlement orders in March 2010. Those proceedings were discontinued. The wife commenced property settlement proceeding in the Federal Magistrates Court in August 2010. She also sought interim orders for financial disclosure, interim spousal maintenance and interim costs. Ultimately, final financial orders were made by consent in the Federal Magistrates Court on 13 January 2011 in the following terms:

   BY CONSENT IT IS ORDERED:

   1) The husband shall pay to the Wife $37,000.00 payable as follows:

   a)      $10,000.00 within 30 days of the date of filing of this order,

   b)      $10,000.00 within 90 days of the date of filing of this order,

   c)      $17,000.00 by way of 17 fortnightly instalments of $1,000.00 per     fortnight commencing within 14 days of the date of filing of this        order.

   2) The payment referred to in Paragraph 1(a) hereof is to be made to the Wife’s solicitors H Law Firm.

   3) That the Husband continue to make the payment in Paragraph 1 of the Orders made on 8 November 2010 until receipt by the Wife of the first fortnightly instalment of $1,000.00 pursuant to Paragraph 1(iii) of this Order whereupon paragraph 1 of the Orders, 8 November 2010 is to be discharged.

   4) The Husband pay to the Wife’s solicitors an amount equal to 60% of the wife’s costs and disbursements from 22 March 2010 until the conclusion of this matter as agreed or taxed on a party party basis on the Federal Courts Scale of Costs. The said payment to be made within 30 days of the date of agreement or certificate of taxation.

   5) That the Husband be responsible for and make all payments as and when they fall due with respect to interest and if required by the creditor principle and interest with respect to the personal loan with St George Bank in the joint names of the parties and to indemnify the Wife in respect to same and within 90 days of the filing of this Order refinance the said loan in the Husbands name solely and provide evidence of same to the Wife’s solicitors.

   6) Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

   a)      each party be solely entitled to at the exclusion of the other to all     superannuation benefits earned by that party and other property        including Choses-in-Action in the possession of and/or owned by   that party as at the date of these Orders.

   b)     money standing to the credit of the party in any bank account being           deemed to be in the possession of the person whose name appears        on the bank,

   c)      insurance policies shall remain the sole property of the owner name          thereon,

   d)     each party be solely liable for and indemnify the other against any   liability encumbering any item of the property to which that party is           entitled to pursuant to these Orders.

   7) That the Conciliation Conference scheduled for 28 January 2011 and the Directions Hearing for 28 January 2011 be vacated and this matter be removed from the Active Pending Cases List in accordance with Paragraph 13 of the Orders made on 8 November 2010.

   THE COURT NOTES:

   A: It is the intention of the parties that these Orders be made in full and final settlement in relation to all financial matters, including but not limited to, weekly spousal maintenance payments and lump sum payments and any potential claim pursuant to the Family Provision Act 1982.

8. A contravention application was filed by the wife in the Federal Magistrates Court and it was subsequently dismissed.

9. On 31 October 2011 the wife commenced these proceedings in the Federal Magistrates Court, seeking a variation of spousal maintenance and various interlocutory orders. On that same date the proceedings were transferred to this Court.

10. For reasons given on 13 December 2011 Collier J rejected an argument made on behalf of the husband that the orders of 13 January 2011 exhausted jurisdiction under the Family Law Act in respect of spousal maintenance for these parties. The wife’s claim for spousal maintenance was then listed before me on 13 February 2012.

11. An interim hearing was conducted on 11 April 2012 and on that date I made the following orders:

    1.     Leave is granted to the parties to inspect document produced on subpoena by B Law Firm.

    2.     That the husband’s address be sealed and not released without an order of the Court.

    3.     That pending further order the husband pay to the wife direct or as she may direct in writing $150.00 per week by way of interim spousal maintenance.

    4.     That the time in which the husband is to comply with the Notices to Produce returnable on 29 March 2012 and 11 April 2012 be extended to 28 days from today’s date.

    5.     That the proceedings be listed for hearing on a final basis in relation to spousal maintenance over two days commencing on 17 July 2012 at the Parramatta Registry of this Court.

    6.     That in relation to their health each of the parties file and serve an affidavit from their treating medical practitioner within 42 days from today’s date.

    7.     That not later than close of business on 3 July 2012 each of the parties file and serve a consolidated single affidavit of their evidence in chief, a single affidavit, if necessary, from any other lay witness in their proceedings and an updated Financial Statement.

    8.     That a case outline document be provided by each party to Justice Loughnan’s associate and the other party by close of business on Friday, 13 July 2012 setting out briefly the terms of the orders sought by the parties to the extent that they are not reflected in any other document filed, a list of the documents relied on by that party and a brief summary of the arguments to be made in relation to the elements of need and capacity in respect of proceedings for spousal maintenance

The witnesses

1. The only witnesses were the parties.

2. The husband was not successfully challenged on any significant issue.

3. The wife was a poor witness. She was unresponsive, argumentative and inconsistent. Indeed she gave a fair representation of some of the behaviour that is alleged by and against her. For example, the evidence filed in her case suggests that she has had anger management problems. The wife’s evidence[1] to this court is that since separation she has “not felt happy or her usual self”. The husband describes conduct going back over some years consistent with very angry behaviour by the wife. The wife made no effort to explain inconsistencies in her evidence. In response to challenges in relation to her expenses the thrust of her answers was to the effect that no one could reasonably live on her income.

   [1] Exhibit 3 - excerpt from an affidavit of the wife sworn 2 December 2011.

4. It is conceded[2] in the wife’s case that in December 2011 she gave false evidence about the financial resources then available to her and about the fact of her accessing about $25,000 by way of a retirement fund.

   [2] Exhibit 3 – above.

5. Although it was conceded in her case in April 2012 that she had access to a total of $112,000 in the 12 months leading to 22 November 2011, the wife initially refused to make the same concession in this hearing.

6. The wife refused to concede obvious propositions. For example it was put to her that it was inappropriate for her to commence contravention proceedings against the husband for a breach of the property settlement orders in circumstances where he had paid in advance of the due date. The thrust of the wife’s response in cross-examination was that instead of paying in advance, the husband should have made weekly payments on the due dates. If not the silliness of that proposition, one might think that the fact that the application had been summarily dismissed reflected on the propriety of the application.

7. The wife was taken to several emails she sent to the husband on 7 October 2011 but would not concede that they were threatening. The operative words of the four emails were:

   You contact me to sort this out or I will Fuck you 6 ways from Sunday

   Finish this and make it worth my while

   Call Mohammad on Monday and settle this thing equally and equitably.

   IF YOU DON’T I AM OVER THE MOON WITH CONFIDENCE TO TAKE THIS TO COURT

   THE JUDGE WILL FUCK YOU AND SEND YOU TO JAIL FOR PERJURY AND FRAUD

   and

   I told you, you did not get it. If you ever fuck around on me. I WILL FUCK YOU

1. The wife’s ultimate response was to the effect that she was drunk when she sent the emails.

The Law

1. In the context of this case, spousal maintenance is a remedy available between parties to a marriage whether the marriage is on foot or not. Section 72 of the Family Law Act says relevantly:

   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: by reason of having care and control of a child; by reason of age or physical or mental incapacity for appropriate gainful employment; or for any other adequate reason having regard to any relevant matter referred to in subsection 75(2).

2. The first issue to be determined by me is whether the wife is unable to support herself adequately for any proper reason. If the wife is able to establish that, the second issue is whether the husband is reasonably able to provide support and to what extent. In deciding those matters the court is to have regard to relevant matters referred to in s 75(2).

The exercise of discretion

1. Turning to the matters in s 75(2):

   (a)           the age and state of health of each of the parties;

2. The wife and husband are 56 and 55 years of age respectively. 

3. As to the health of the parties. Despite the trial directions made by me, neither of the parties filed medical evidence under cover of an affidavit by a medical or other health professional.

4. This is a very frustrating state of affairs given that in reasons published on 11 April 2012 I said:

   3.  In addition, a number of matters were addressed informally, such as medical evidence on behalf of each of the parties. That evidence is not on affidavit.  Medical reports were simply attached to the parties’ documents. That would need to be rectified in the substantive proceedings, in circumstances where there are some issues about that evidence.

5. Much of the evidence they submitted on health matters was excluded on objection or not pressed. What is left is as follows:

6. The husband consults a Clinical Psychologist on a regular basis. He last saw her on the Friday of the week before the hearing. He received 16 sessions without charge as a result of his claim for Victims Services Compensation. He sees the Psychologist monthly with some additional intervening sessions. He saw a Psychiatrist in February 2012, also associated with that claim. Without objection, the husband says he has high blood pressure and has difficulty sleeping. He has been prescribed Orthoplex Inkephalin for depression.

7. The wife sought counselling help from Lifeline Western Sydney in relation to anger issues, an inability to adjust to her current living situation, depression and feelings of isolation from others, identity and adjustment issues.

   (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;

8. As to the income, property, financial resources of each of the parties and their physical and mental capacity for appropriate gainful employment:

9. The wife’s most recent Financial Statement puts her income at $150.00 per week by way of a Centrelink Newstart allowance. This appears to be a rough estimate of the net allowance after certain deductions are made. Advice[3] from Centrelink as at 30 May 2012 provided the following information:

   [3] Annexure A to the wife’s affidavit.

Fortnightly Payment or Deduction	Amount
Newstart Allowance	$489.70
Plus Pharmaceutical Allowance	$6.20
Less NSW Govt Housing Arrears Payment	-$25.00
Less NSW Govt Housing Payment	-$120.10
Less Court fines	-$10.00
Less Electricity	-$46.00
$294.80

1. The wife’s Financial Statement is confusing and was not relied on in her case as to her income and expenses. Rather unusually, the parties agreed that the wife would rely on a document annexed to her affidavit called Personal Money Plan.[4]

   [4] Annexure B to the wife’s affidavit.

2. Thus the wife deposed to an income by way of Newstart Allowance of $495.90 per fortnight. She declared the following fortnightly expenses:

Expense	Amount
Public housing rent	$120.10
Water rates	$14.00
Electricity	$46.00
Mobile telephone	$40.00
Internet	$20.00
Fares	$52.00
Groceries	$150.00
Self-education	$20.00
Chemist	$20.00
Haircuts/beautician	$10.00
Cigarettes etc	$20.00
SDRO - fines	$10.00
NSW Housing	$25.00
Rent Arrears	$20.00
Total	$567.10

1. I am not sure what was intended by the last two expenses. The Centrelink document[5] puts the rent arrears at $25.00 per fortnight. The source documents are annexures A & B to the wife’s affidavit and are both dated May 2012. It is odd that they contain different figures. A possible explanation is that the penultimate expense on annexure B is meant to be the NSW Housing rent arrears and that the ultimate expense on annexure B is for something else. I cannot take that matter any further.

   [5] Annexure A to the wife’s affidavit.

2. Thus the wife shows a deficit of $71.20 per fortnight. The wife does not acknowledge receipt of the $150.00 per week which the husband deposes to paying pursuant to the order for interim spousal maintenance of 11 April 2012.

1. The wife owns:

Assets	Amount
Westpac Bank at [C]	$8.28
Household contents	$2,000.00
Total	$2,008.28

1. The wife has no superannuation or financial resources.

2. The wife’s Financial Statement details no debt balances. Notwithstanding that fact, in the summary of the Statement at Part B the wife puts the total of her liabilities at $53,000. There is evidence that the wife owes arrears of rent and is paying off a fine. I understand from reference made during the hearing to her former solicitors retaining documents under a lien, that she may have a debt to those solicitors. I can take that matter no further.

3. As to her capacity for paid employment, the wife has not had paid employment since she her employment with the husband’s company Q Pty Ltd was terminated on 14 December 2009. For about 7 years until 14 December 2009 the wife was employed in that business as a secretary. It is difficult to make a confident finding about the nature of the wife’s role at Q Pty Ltd. Ms F, a lawyer employed by the business, gave the wife a reference, written on company letterhead, on 12 February 2010. Ms F there asserted that the wife worked in the firm as a Personal Assistant/Secretary for approximately seven years. She had no hesitation in recommending the wife in those roles to a future employer. She said that the wife was capable, conscientious, hard-working, honest and dedicated. She said the wife was computer literate, a very competent and fast typist and had excellent communication skills. The only impression gained from that reference is that, to Ms F’s observation, the wife had played a meaningful role at Q Pty Ltd and had been well thought of. The husband was directly asked whether he endorsed the sentiments in the reference and he said he did. Although raised in cross-examination in the final hearing but not ultimately pressed, the nature of the wife’s role with Q Pty Ltd was addressed in the interim hearing on 11 April 2012. I recorded in reasons given on that day:

30.      …..

Can the wife adequately support herself from her own resources?  The wife’s case is that she can’t work - can’t have paid employment.  The husband’s case is, I gather, that she can.  He conceded in the course of submissions that there is some medical evidence in relation to the wife. He made a submission in the course of wrongful dismissal proceedings consistent with the wife’s evidence before me, in relation to her role with the company and inconsistent with his own and inconsistent with the propositions that he put to her in cross-examination.  He put to her on a number of occasions - at least two - that she had a full time role as a […] secretary for eight years working for the company.  That is not what he represented to the authorities in relation to the wrongful dismissal proceedings.  There his evidence was something closer to the wife’s representation before me, that the arrangement had more of the character of income splitting.

1. This issue was neither addressed in the affidavits prepared for the final hearing nor was it pursued in cross-examination. For example, despite me raising the question of detailed evidence about the wife’s hours of work etc at Q Pty Ltd in my reasons published on 11 April 2012, there is no such evidence before me.

2. The wife has accessed services from Lifeline Western Sydney. Since March 2010, the wife has consulted the ORS Group (a Job Services Australia provider). A Lifeline counsellor advocated on the wife’s behalf in relation to a complaint regarding her telecommunications provider.

3. It is the evidence of the wife that for more than two years she has applied for jobs at the rate of 10 applications a week. It is confusing then that she deposes to having applied for about 250 jobs since she left Q Pty Ltd on 14 December 2009. She could not and indeed made no attempt to reconcile that evidence in cross-examination. As was put to her by learned counsel for the husband, at the rate she asserted, 10 applications a week, she would have applied for about 1,250 jobs in two and one half years. Notably, not one copy of a job application, rejection or acknowledgment was put into evidence by the wife. It is the wife’s evidence that she has not received a rejection. Whether she made 250 or 1,250 applications, it would seem remarkable that on not one occasion did she receive advice that her application was unsuccessful. I understood the wife to say that most if not all her applications were made online. No reason was given for her not providing evidence of such applications. As I put to the wife’s solicitor, the high point of her case on this issue is that she receives the Newstart allowance and therefore the Court might assume that she diligently seeks paid employment because she is supervised in meeting her obligations to do so.

4. The husband’s weekly income before tax is $2,404, by way of wages as Managing Director of Q Pty Limited. The husband was cross-examined about the fact that the company has traded at a loss for recent years. The husband’s evidence is that he intends to obtain advice from an accountant about bringing the business back into profit. He is hopeful that will occur. He thinks that once these proceedings are over he will be able to pay more attention to the business and will be better apply to apply himself in that regard. On that evidence, I cannot make a finding that the husband’s income is likely to increase in the near future.

5. In his Financial Statement the husband deposed to the following expenses:

Expense

Amount

Income tax

$694.00

Rent

$700.00

Rates, unit levies

$3.00

Health Insurance - BUPA

$21.00

Personal loan repayments – St George Bank

$222.00

Personal loan repayments – GE Finance

$129.00

Mastercard repayments – Commonwealth Bank

$60.00

Mastercard repayments – GO

$30.00

Mastercard repayments – GE Money

$30.00

Maintenance to wife

$150.00

Other expenses.

$580.00

Food

$170.00

House supplies

$30.00

Gas

$30.00

Electricity

$30.00

Fares and parking

$40.00

Clothing and shoes

$25.00

Medical dental and optical

$35.00

Entertainment & hobbies

$50.00

Chemist pharmaceuticals

$20.00

Gardening lawnmowing

$25.00

Dry cleaning

$15.00

Books and magazines

$10.00

Gifts

$10.00

Hairdressing, toiletries

$15.00

Other necessary commitments

Vet fees, cat food and supplies

$75.00

Sub-total

$580.00

Total

$2619.00

1. The husband deposes to a weekly deficit of $215.00.

2. The husband owns:

Assets	Amount
Commonwealth Bank account  …56	$150.00
Commonwealth Bank account  …64	$3.00
Commonwealth Bank account  …12	$314.00
St George Bank account  …81	$45.00
Household contents	$3,000.00
Total	$3,512.00

1. The husband has a superannuation interest of $37,760 with AMP Retirement Fund.

2. The husband owes:

Liabilities	Amount
St George Bank personal loan	$55,375.00
GO Mastercard	$3,704.00
Commonwealth Bank Mastercard	$10,170.00
GE Money Mastercard	$3,702.00
GE Finance personal loan	$28,531.00
Total	$101,482.00

1. As to the capacity of the husband for gainful employment. The husband said that he has difficulty concentrating at work and lacks motivation. There is no independent evidence about the husband’s capacity for paid employment, other than the fact that he continues to hold down a job.

   (c)         whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

2. This does not apply.

   (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;

3. Neither of the parties was challenged as to the necessity for the expenses they incur.

4. In previous proceedings the wife conceded that she had available to her something like $112,000 in the 12 months leading up to 22 November last year.  Of that, $92,000 came in the form of payments received from the husband and from cashing in a retirement benefit. The wife could not and cannot fully account for the application of those funds. It was her evidence in the interim proceedings before me that she was spending at the rate of something like $39,000 a year.  She brought electronic equipment and some other things that added up to about, $15,000.  The wife said she spent about $20,000 on clothing, shoes and a trip to Melbourne. When challenged about that expenditure, the wife’s evidence was that she then anticipated an early return to paid employment and needed that style of clothing.

5. The husband was asked about the rates at which he is paying off various loans. The husband said that in relation to some loans the rates have been fixed by the lender setting a direct debit figure. He anticipates that he will pay out the St George loan in four years and 10 months. I note that that takes that liability passed the period for which the wife seeks spousal maintenance.

6. There is nothing by way of category or quantum that stands out in the expenses claimed by the parties, save perhaps for the husband’s rent at $700 per week. It stands in stark contrast to the impost on the wife of $60.05 per week for public housing. Again, despite that issue being specifically flagged by me on 11 April 2012, it was not taken up with the husband in cross-examination.

7. Lest it be thought to be inherently extravagant, I gather that the vet fees and other costs incurred by the husband for the care of a cat are in relation to the parties’ cat. Similarly, the loan repayments made by the husband are substantially founded on the matrimonial debts which the husband retained as a result of the property settlement effected in January 2011.

8. In those circumstances I accept that the parties’ expenses were incurred and that they were necessary. In the wife’s case the payments reflect a very modest lifestyle, indeed a subsistence standard of living.

   (e)          the responsibilities of either party to support any other person;

9. This does not apply.

   (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;

1. The wife receives a Centrelink benefit and the husband has a superannuation interest. There is no evidence about the husband being able to access his superannuation.

   (g)           where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

2. There is no evidence before me in relation to the standard of living of the parties during the marriage. 

   (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;

3. The wife pays or would like to pay $20 per week for self education. I do not know what that entails. There is no other relevant evidence on this topic.

   (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; 

4. This was not addressed during the trial or in the evidence. In circumstances where the husband’s business runs at a loss and he owes more than he owns, there must be a concern that any further impost on his income may adversely affect his capacity to repay his existing creditors.

   (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;

5. There were no relevant submissions on this issue.

   (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;

6. The parties seem bitter in relation to each other. The husband gave evidence about being assaulted by the wife with a knife in 2005. Notwithstanding the current presentation of the parties, no effort was made to provide evidence to link the marriage to the current earning capacities of the parties.

   (l) the need to protect a party who wishes to continue that party's role as a parent;

7. This provision has no relevance to these proceedings.

   (m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;

8. The evidence is that the husband and wife each live alone.

   (n)          the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

9. I have set out the terms of the property settlement orders above.

   (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

10. This provision has no relevance to these proceedings.

    (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

11. Nothing comes to attention here.

    (p)          the terms of any financial agreement that is binding on the parties.

12. There was no binding agreement made between the husband and wife.

Conclusion

1. Can the wife adequately support herself from her own resources? There is some evidence that supports the wife’s claim. The wife is in very poor financial circumstances. She lives in public housing, lives very modestly and even then her outgoings exceed her income. In the context of these proceedings I am obliged to ignore the wife’s receipt of the Newstart Allowance. Therefore, without maintenance from the husband, on her own modest figures, she has a fortnightly shortfall of $567.10. There was no challenge to the nature or quantum of her outgoings.

2. The real issue is whether the wife can return to paid employment.

3. The wife has not provided direct evidence that she has unsuccessfully applied for any jobs. In circumstances where the wife was a poor witness, it would be of assistance to have some corroboration of her testimony on this point. There is no medical evidence to support the wife’s case about her earning capacity.

4. Against that there are the background facts. The wife is 56 years of age and has not had paid employment since December 2009. She has received counselling for depression and assistance from the authorities for the necessities of life. She has qualified for a Newstart Allowance which carries with it a supervised obligation to seek paid employment. Although the husband endorses the wife’s capacity for work, his company no longer retained her services after December 2009. The husband represented to an authority in wrongful dismissal proceedings that her role within the company was far less significant than is represented by him in these proceedings.

5. It is no substitute for evidence on the issue, but in my view, if any significant element of the wife’s behaviour to the husband directly and her conduct and presentation in the course of these proceedings was repeated at a job interview or potential workplace, it is unlikely that a potential employer would select her.

6. In my view, the wife has not done enough to discharge her obligations in this regard. The background facts suggest that the wife should be able to support her contention. Notwithstanding that I have found that the wife has not made out a case, I will nevertheless address the second element of the wife’s case – that of the husband’s reasonable capacity to provide support.

7. The husband pays out more than he earns. No successful challenge was made to the type or quantum of his outgoings. The husband owes substantially more than he owns. There is no suggestion that the husband is not exercising his earning capacity. Part of his current outgoings is directly referable to the property settlement struck by the parties in 2011. The husband has a superannuation interest. There is no evidence that the husband can access those funds. If one were to speculate about the terms of the relevant fund, it is likely that he could not access the fund without leaving the paid workforce. If that applied here and he retired then there are creditors who could claim more than the entire value of the superannuation interest.

8. There is no evidence that the husband has a capacity to support the wife.

9. The wife is not able to make out the elements of a case for spouse maintenance and her application must be dismissed.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 3 August 2012.

Associate: 

Date:  3 August 2012