Gimondi and Gimondi

[2014] FamCA 368

FAMILY COURT OF AUSTRALIA

GIMONDI & GIMONDI [2014] FamCA 368

FAMILY LAW – PROPERTY – Interim spousal maintenance – Determination of the wife’s reasonable financial needs – Whether the husband has the capacity to meet a provision of maintenance – Application granted for the husband to meet certain expenses of the wife and to pay a periodic lump sum to meet a shortfall in the wife’s reasonable expenses

Family Law Act 1975 (Cth) ss 72, 75(2)

APPLICANT: Ms Gimondi

RESPONDENT: Mr Gimondi

FILE NUMBER: PAC 2471 of 2013

DATE DELIVERED: 4 June 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 28 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Fox & Staniland Lawyers

COUNSEL FOR THE RESPONDENT: Mr Rosic

SOLICITOR FOR THE RESPONDENT: Rowlandson & Co

Orders

1. That pending further order the husband pay to the wife by way of interim periodic spouse maintenance the sum of $260 per week from the date of this Order onwards and to date from 27 February 2014, with the first periodic payment within seven (7) days from the date of this Order, such payment to be paid by way of periodic bank transfer to such bank account as is nominated by the wife to the husband’s solicitors  within two (2) days from the date of this Order and with arrears to the date of this Order to be paid in a lump sum by the husband within one (1) month from the date of this Order to such bank account as is nominated by the wife for the purpose of weekly periodic payments.

2. That pending further order the wife pay as they fall due and payable council rates, water rates and home and contents insurance in relation to the home occupied by her at B Street, Suburb C, New South Wales.

3. That pending further order the husband do all necessary things so as to maintain private health insurance cover for the wife at such level of cover as is presently in effect, and the husband do all necessary things so as to facilitate the wife having access to an appropriate membership card in relation to that private health insurance cover in order that she may make a claim on such health insurance cover in her own right.

4. That, otherwise, all interim applications before the Court be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gimondi & Gimondi 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: PAC 2471 of 2013

Ms Gimondi

Applicant

And

Mr Gimondi

Respondent

REASONS FOR JUDGMENT

1. The present proceedings before the Court are proceedings touching upon interim financial issues.

2. The parties have been able to reach agreement in relation to underlying valuation issues, the withdrawal of funds by the husband from a joint Commonwealth Bank facility and the wife’s continuing occupation of the home at Suburb C in Sydney.

3. The parties have been unable to agree in relation to the wife’s application for interim financial provision by way of a periodic spouse maintenance order and the payment of certain other expenses on her behalf by the husband.

4. The wife, in summary, seeks orders that the husband continue to pay, as they fall due and payable, her mobile telephone bill, home and contents insurance for the home, council rates for the home and private health insurance premiums to cover the wife, together with the sum of $500 per week by way of periodic spouse maintenance.

5. The husband opposes the orders sought by the wife.

6. Section 72 of the Family Law Act (Cth) (“the Act”) sets out the relevant provisions in relation to the right to spouse maintenance. Section 72 provides that 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 a 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) of the Act.

7. It is not conceded on behalf of the husband that the wife is unable to support herself adequately by reason of any of the matters referred to in section 72.

8. The wife has the onus of establishing her right to an order for spouse maintenance.

The wife’s circumstances:

1. The wife is 53 years of age and in full time employment in an administrative role.

2. The parties married in April 1990 and separated on 13 April 2013. The parties are not yet divorced.

3. There are two children of the parties’ marriage, the eldest is 22 years of age and the youngest is 19 years of age. The eldest resides in the home with the wife about two days per week. He is a full-time student at university but works 20 hours per week in the husband’s family business as an assistant and earns about $500 per week. The youngest child is employed as a third year apprentice tradesman earning about $500 per week. He lives in the family home with the wife and spends little time with the husband.

4. The wife’s salary is $50,000 per annum and she has a total remuneration package, including superannuation, of $54,500 per annum. Her weekly after-tax income is $864. She has been employed in her present job for about two years.

5. The wife continues to reside in the parties’ unencumbered home to the exclusion of the husband. Since separation, the husband has continued to pay home and contents insurance in relation to the home occupied by the wife, her mobile telephone bill and her private health cover.

6. The wife in her financial statement sets out what she asserts to be her fixed personal expenditure as follows:

   Council rates  $42

   Water rates  $36

   Motor vehicle insurances              $32

   Motor vehicle registration             $7

   Motor vehicle servicing                 $18

   $135

7. The wife otherwise sets out her discretionary expenditure in Part N of her financial statement.

8. Having regard to the discretionary expenditure asserted by the wife and the discretionary expenditure asserted by the husband and in circumstances where the Court is not assisted by cross-examination, this being an interim application, then in general terms by comparing the parties’ asserted discretionary expenditure and upon hearing submissions, the Court is satisfied that the wife’s reasonably necessary expenditure, in the context of this interim application, should be regarded as follows:

   Food  $300

   Household supplies  $20

   Gas  $17

   Electricity  $40

   Telephone landline and internet    $20

   Car expenses - petrol and tolls     $50

   Clothing and shoes  $50

   Medical, dental and optical           $7

   Entertainment/hobbies                   $75

   Chemist/pharmaceuticals              $25

   Gardening/lawn mowing                $70

   Dry cleaning  $10

   Books and magazines  $10

   Hairdressing/toiletries  $60

   Gifts  $25

   P.O.Box fee/NRMA  $5

   $784

9. Thus, overall her necessary expenditure is $918 per week.

10. Otherwise, the wife has occupation of the home in respect to which she pays some outgoings relating to the two children, who are both in receipt of income. It is reasonable to expect that they make some contribution thus lessening, to a small degree, her expenditure.

11. However, to overall meet her necessary outgoings, as they are assessed in the context of this interim application, the wife relies upon various payments from the husband and, otherwise, still has a shortfall. These payments include her mobile phone bill that she asserts to be $200 per week. Such a sum seems excessive. The husband pays home and contents insurance on the family home at a cost of about $6 per week.

12. Otherwise, the husband maintains the wife on the present family health cover, which includes the eldest child who is a student dependent.

13. Allowing for payments presently made by the husband for home and contents insurance and allowing $50 per week for the wife’s mobile phone expenses, the wife’s necessary expenditure is $974 per week. Such sum makes no provision for any discretionary expenditure as referred to below.

The husband’s circumstances

1. The husband is aged 52. He is a director and employee of Gimondi Pty Ltd, his parent’s company. The husband owns one share in that company, which entitles him to discretionary dividends.

2. Historically, his income has comprised a salary from the company and dividends paid to him arising from his shareholding entitlement.

3. In the financial year ended 30 June 2013 the husband received a fully franked dividend of $77,111, together with other salaried income of about $200,000.

4. For the 2013 financial year the husband’s income after tax was approximately $4,000 per week. Following the filing of his 2013 tax return the husband received a tax refund of $17,542, representing an additional income of about $350 per week.

5. In the financial year ended 30 June 2012 the husband received a fully franked dividend of about $265,000, together with other salaried income taking his taxable income to about $363,000. The husband asserts that the later restructuring of the components of his income was for superannuation purposes.

6. The husband asserts his current salary to be about $2,750 per week ($143,000 per annum) less tax of $1,135. In addition to which he has an expectation of receiving shortly an additional lump sum payment of $100,000, representing an additional $58,000 net after tax (or $1,115 per week), before 30 June 2014. That will bring the husband’s total salary to about $243,000 for the year.

7. Accordingly, as at 30 June 2014, the husband’s net after-tax salary per week for the financial year will be about $2,729 before the receipt of any dividend by him. Historically, he has received a dividend payment each year.

8. The husband’s necessary expenses, derived from his financial statement and by comparison with those of the wife, are as follows:

   Rent  $1,000

   Life insurance  $47

   Home and contents insurance       $16 (including Suburb C)

   Family health insurance                 $75 (including the wife)

   Motor vehicle insurances and

   Registration   (one third)                $40

   Food  $300

   Household supplies  $20

   Gas  $6

   Electricity  $30

   Telephone  $20

   Car expenses/petrol  $50

   Car expenses/maintenance   $12

   Medical, dental and optical  $7

   Entertainment/hobbies                   $75

   Chemist/pharmaceuticals              $5

   Dry cleaning  $10

   Books and magazines   $10

   Gifts  $50

   Hairdressing/toiletries  $10

   $1,783

   Overall, the husband has a significant surplus of income over expenditure.

Issues for determination

1. The questions for determination are:

   a)Is the wife unable to support herself adequately for one of the reasons set out in section 72, having regard to the matters set out in section 75(2)?

   b)If so, what are the wife’s reasonable needs?

   c)Having regard to the wife’s reasonable needs, what is the capacity of the husband to make a contribution towards those needs?

2. The husband does not contend that the wife is not working to capacity. She is in full-time employment and was in the same employment at the time of separation in early 2013. Thus, she has finite income from which to meet her reasonable needs.

3. The wife is dependent upon the husband paying some of her expenses and some expenses relating to the home in which she remains.

4. Otherwise, her available income is insufficient to meet her reasonable needs leaving aside any items of discretionary expenditure that she may choose to incur.

5. During the period of cohabitation the inference is that the parties combined their incomes to meet their reasonable living expenses and lifestyle expenses for their household and themselves. In the 2013 financial year the parties combined income was in the order of $335,000. In 2012 it was greater. The husband, by way of salary or dividend, provided over 80% of the household income.

6. The section 75(2) factors are considered below.

7. Both parties are in their 50s and neither asserts any health circumstances that would prevent them from continuing their present employment.

8. The property and financial resources of each of the parties is not a relevant consideration in the context of this interim application. However, the husband has a reasonable expectancy of receiving dividend income from his parents’ family company from time to time. Details as to the income of each of the parties are set out above and both parties are capable of maintaining their present gainful employment.

9. Neither party has the care and control of a child of the marriage who has not attained the age of 18 years.

10. The commitments of each of the parties for their self-support are set out above and such commitments do not include matters of discretionary expenditure which, by inference, both parties were able to have access to during cohabitation.

11. Neither party has a responsibility to support any other person, although the husband provides certain funds voluntarily to the adult children.

12. The wife has accumulated superannuation of just over $40,000. The husband has accumulated superannuation of about $285,000. Neither party can access superannuation entitlements at present.

13. It can be inferred that during cohabitation the parties enjoyed a comfortable lifestyle. They owned the matrimonial home unencumbered and enjoyed the benefit of significant combined income. The husband has rented for himself a property at Suburb P in the eastern suburbs area of Sydney, whilst the wife remains in occupation of the family home that the husband asserts has a value of about $1.8 million and the wife asserts has a value of about $1.6 million. It is apparent from the matters referred to above that both parties would expect that following separation they would have the ability to have discretionary lifestyle expenditure. At the moment, the husband has that capacity by reason of his surplus income that no longer is shared by the parties, whereas the wife has no such capacity as all of her income is applied to try and meet her reasonable living expenses.

14. The payment of maintenance to the wife would not increase her earning capacity. She is working presently full-time in a secretarial capacity and it is not contended by the husband that the wife should participate in any further course of education or training to enhance her employment prospects.

15. The parties cohabited for 23 years. The husband throughout the relationship worked for his parent’s family company. The wife was out of employment for many years of the relationship devoting herself to the household and the children. She commenced part-time employment in 2006 and that employment gradually increased until such time as she was able to commence full-time employment in 2011. It is to be inferred that, if she had had the opportunity of working throughout cohabitation, her employment prospects would be better than they are now.

16. Neither party is cohabiting with any other person.

17. Property proceedings are still on foot and in the context of those proceedings the wife seeks to retain the family home.

18. There are no other relevant considerations under section 75 (2).

19. Overall, the wife has a shortfall in meeting her reasonable expenses in circumstances where the husband meets some expenses directly and the wife has no capacity for any discretionary expenditure whatsoever. In the circumstances, the wife is not able to support herself adequately by reason of her limited full-time employment earning capacity.

The wife’s reasonable needs

1. The next question is:- What are the wife’s reasonable needs by reason of a consideration of section 75(2)? This is not the same question as what are the wife’s necessary expenses as set out above.

2. Allowing $150 for some discretionary expenditure by the wife, as is now permitted to the husband by reason of his significant surplus of income over expenditure, then the wife’s reasonable needs are $1,124 per week. This would leave the wife with a shortfall of $260 per week.

The husband’s capacity

1. The husband clearly has capacity to meet a spouse maintenance order in the sum of $260 per week by reason of the analysis undertaken above.

2. However, in consideration of that spouse maintenance payment, the wife will be required to meet her own mobile phone expenses and pay home and contents insurance as it falls due and payable.

3. Orders will be made accordingly. It is appropriate that the order is dated to run from the date of the wife filing her Application in a Case.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 June 2014.

Legal Associate:      

Date:   4 June 2014