Gould and Gould
[2012] FMCAfam 228
•8 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GOULD & GOULD | [2012] FMCAfam 228 |
| FAMILY LAW – Maintenance – de facto relationship – the respondent has capacity – the applicant has reasonable needs. |
| Family Law Act 1975, ss.72, 90SE, 90SF, div. 2, pt. VIIIAB |
| In the marriage of Vick & Hartcher (1991) FLC 92-262 |
| Applicant: | MS GOULD |
| Respondent: | MR GOULD |
| File Number: | BRC 1115 of 2011 |
| Judgment of: | Cassidy FM |
| Hearing date: | 8 February 2012 |
| Date of Last Submission: | 23 February 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 8 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamwood |
| Solicitors for the Applicant: | John Nagel & Co. |
| Counsel for the Respondent: | Mr Jordan |
| Solicitors for the Respondent: | Wonderley & Hall |
ORDERS
That the de facto husband pay maintenance to the de facto wife in the sum of $746.50 per week as and from 8 March 2012.
That the de facto wife file and serve written submissions in relation to costs by no later than 4.00ppm on 22 March 2012.
That by no later than 4.00pm on 12 April 2012, the de facto husband file and serve:
(a)Any submissions in reply in relation to costs; and
(b)Submissions in relation to the commencement date for the maintenance order.
That by no later than 4.00pm on 26 April 2012, the de facto wife file and serve any reply in relation to the commencement date for the maintenance order.
That judgment with respect to costs and with respect to the commencement date for the maintenance order be adjourned to 9.30am on 4 May 2012 in the Federal Magistrates Court of Australia in Brisbane.
That the parties be at liberty to appear by telephone on 4 May 2012.
IT IS NOTED that publication of this judgment under the pseudonym Gould & Gould is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1115 of 2011
| MS GOULD |
Applicant
And
| MR GOULD |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
Introduction
This is an application by the de facto wife for interim spousal maintenance under Division 2 of Part VIIIAB of the Family Law Act 1975 (“the Act”).
The Material
The wife’s material is listed in her outline of submissions filed 17 February 2012. The material that she relied on was:
a)An initiating application filed on 15 July 2011;
b)A financial statement filed on 15 July 2011;
c)An affidavit of Mr Gould filed on 23 September 2011, paragraphs 1 – 15 and 28 – 44;
d)A further affidavit of Mr Gould filed on 3 February 2012; and
e)A reply of Mr Gould filed on 8 December 2011.
There was a further financial statement of Mr Gould filed on 29 September 2011 that was relied on in the wife’s case.
The husband’s material was set out in his outline of submissions that was filed on 16 February 2012. He relied on:
a)A response filed on 29 September 2011;
b)An affidavit of Mr Gould filed on 29 September 2011;
c)A further affidavit of the husband filed on 2 February 2012; and
d)A financial statement of the husband filed on 2 February 2012.
I also considered:
a)The outline of submissions filed by the wife on 17 February 2012;
b)The outline of submissions filed by the husband on 16 February 2012; and
c)The submissions in reply filed by the de facto husband on 21 February 2012.
The Law
I am satisfied the application is properly made under the de facto provisions of the Act and that I have jurisdiction to hear and determine the matter. The relevant provisions of the legislation are set out in the Act, in particular, s.90SF.
“Matters to be taken into consideration in relation to maintenance
(1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
(a) only to the extent that the first-mentioned party is reasonably able to do so; and
(b) only if the second-mentioned party is unable to support himself or herself adequately whether:
(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.
Note: For child of a de facto relationship , see section 90RB.
(2) In applying this principle, the court must take into account only the matters referred to in subsection (3).
(3) The matters to be so taken into account are:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); 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 de facto relationship 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 (4), 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) 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
(i) 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 de facto relationship 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 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; 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
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; 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
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.
(4) In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.”
Subsection (4) of that provision is of note. It provides, in exercising its jurisdiction under s.90SE, a Court must disregard any entitlement of the party whose maintenance is under consideration to an income test pension, allowance or benefit.
The Background Facts
The chronology in the respondent’s submissions is a useful summary of the background facts in this matter and I have relied on that in providing a short history of the matter.
The respondent is presently approximately 48 years old. He was born in 1964. The applicant is approximately 47 years old, being born in 1965. The respondent commenced an (omitted) degree in 1982 that he did not complete. The applicant studied (omitted) for about 18 months at around that time and it was in 1983 that the respondent alleges the relationship commenced. It was 1982 on the applicant’s case.
The parties’ son, X, was born on (omitted) 1990 and the respondent commenced a (omitted) degree in 1997. In 2000 the applicant completed her (studies omitted) in (qualification omitted). It was in 2001 that the respondent completed his (omitted) degree and in the following year took up an internship and was employed in a (employer omitted). In 2003, on (omitted), the parties’ daughter, Y, was born. In 2006 the parties moved to (omitted) where the respondent received training as a (occupation omitted). It was in (omitted) that the parties purchased the matrimonial home and that was in May of 2007.
The parties separated in 2009, on the respondent’s case in February, and on the applicant’s case in late July. In around early 2010, the applicant moved to live with her parents at (omitted). The respondent married his present wife, Ms R, on (omitted) 2010. In 2011 the parties sold the home that they had purchased together in (omitted). On 15 July 2011, the applicant filed the application for property settlement and spousal maintenance.
The Respondent’s Capacity
I have to consider, as the part of the legislation requires me to, the capacity of the respondent to pay maintenance. The respondent is a (occupation omitted) and he is in (occupation omitted) in (omitted). He obtained the qualification during the de facto relationship.
The Respondent’s Income
I have to look at the respondent’s income. It was submitted by the counsel for the applicant that I should consider his income at its highest over the last couple of years. The respondent’s financial statement, filed on 29 September 2011 swore to an average weekly income of approximately $5,316.00, which is an annual income of $276,432.00. In his second financial statement filed, the respondent’s average weekly income had decreased to $4,736.00, which is an annual income of approximately $246,272.00.
Mr Hamwood of counsel submitted I should find that the de facto partner has an earning capacity of the higher income. The de facto husband’s evidence was that he has lost $1,000.00 a month in benefits because (omitted) abolished (omitted). The remaining decrease, he says, is because he has decreased the number of (omitted).
I heard the respondent’s evidence with respect to this issue and I consider his approach was reasonable. I do not intend to increase his income to its previous level. I note that the applicant conceded the (omitted) loss.
The Payments on Behalf of the Respondent’s Wife
Counsel for the applicant submitted:
“[20] As to the husband’s expenses, he claims that it is appropriate for him to be paying all of his current wife’s expenses in the amount of $525 (Part N) plus $146 (Part H) in circumstances where the wife has a current income of $780 per week and previously earned $975 per week. The amount of $671 should be disallowed from the husband’s asserted expenses.”
In In the marriage of Vick & Hartcher (1991) FLC 92-262, the Full Court considered this issue and the headnote adequately summarises the law. The Full Court were referring to s.72 of the Act, which is the provision that is for married couples but is in the same terms as the de facto provision. The headnote provides:
“(b) Section 72 of the Family Law Act defines the circumstances in which the duty to maintain a spouse arises; when a person for one or more of the reasons set out in the section is unable to support himself or herself adequately and then only to the extent that the economically stronger party is reasonably able to do so. The fact of marriage does not, by itself, give rise to such an obligation, and it would be inconsistent with notions of sexual equality to imply in the statute a duty to support a wife merely by reason of marriage.
(c) Her Honour was correct in holding that a party against whom maintenance is claimed, who wishes to rely on a duty to maintain a new spouse, has the effective onus upon him or her to establish the circumstances which pursuant to sec 72 impose that duty upon him or her.”
Mr Jordan, counsel for the husband, referred me to authorities at paragraph 17 of his submissions in reply. In particular, he said:
“[17] Lastly, in respect of contributions made by the Respondent to his new wife, the Full Court in Brown & Brown 37 Fam LR 59 (sic) confirmed what was said in the marriage of Sobluski (1976) FLC 90 – 124 (sic) (referred to in the initial submissions at paragraph 30) that:-
“A Court is required under para (e) to consider in a realistic way the fact that a party has assumed the responsibility to support another person, and the weight to be given to that fact depends upon the circumstances of each individual case…”
[18] The Full Court emphasised the fact that the provision is couched in wide terms and ought to be given a broad interpretation.”
In the present case, the respondent’s wife gave no evidence. I am not satisfied that the de facto husband discharged the onus on him to establish the circumstances set out in s.72, which is the equivalent of s.90SF, that impose a duty on him to support his new wife. I will, therefore, subtract $671.00 from the respondent’s expenses that are the payments he made on behalf of his wife.
The Visa Card
I am not satisfied that it is appropriate to remove the $200.00 per week Visa card payment set out in the respondent’s expenses. The evidence was not clear on this point and it may be an issue that has a different result at the final hearing. However, I am not able to make a finding that it is unreasonable in the present circumstances.
The Rent
The respondent claims, as a reasonable expense, the whole of the rent, being $300.00 per week. I am not satisfied that this is reasonable and I consider that the expense should be apportioned equally between the respondent and his wife, Ms R. I will therefore subtract $150.00 from the respondent’s expenses that represents half of the rent paid on the property in which he resides.
The Extra Payment to his Child
The respondent is paying an extra $82.00 in excess of that assessed amount for child support. I accept his evidence that he will continue to pay that amount so I do not intend to add it into the unreasonable expenses. This might become an issue at the trial if the payments do not continue.
The Current Excess
Counsel for the respondent conceded, on his own figures, that there is an excess of $97.00 per week income over expenses. Therefore, the income available, as I assess it, is:
a)The payments made on behalf of the respondent’s wife, being $671.00;
b)Half of the rent paid by the respondent, being $150.00; and
c)The current excess income being $97.00.
The total available is $918.00.
The Applicant’s Needs
The amount of expenses claimed by the applicant totals $892.15 and that is set out at paragraph 34 of the submissions for the respondent:
“a. $613 – being her expenses at part (n) of her Financial Statement;
b. $247 – being her expenses contained in part (g) of her Financial Statement;
c. $32.50 – being her weekly shortfall in relation to her psychiatric treatment.”
As was submitted by the respondent, the applicant’s claim, at its highest, is $892.50 and I accept that submission.
The Rent
Mr Jordan, counsel for the respondent, submitted that I should exclude the sum of $220.00 a week from the applicant’s reasonable needs. The evidence is the applicant lives with her parents, on her parents’ property, with her two children. The applicant says her parents are pensioners. The applicant says that various bills are paid for them on the internet by her and she also makes other payments. The applicant says that that approximates to $220.00 a week and this is equivalent to the rent that she says she considers she should pay them.
I consider that it is appropriate that I include one-third of the $220.00 in the applicant’s expenses because she incurs expenses that are akin to rent and, in my assessment, it is reasonable given that the respondent is paying in the order of $150.00 for his share of his rent. I will therefore decrease the rent claim to one-third, being $73.00. I will therefore subtract $146 from the wife’s reasonable weekly needs.
The House Repairs
The de facto wife claims $23.00 a week. She says she spends this maintaining the shed where she and the children live. There was no challenge to the fact that the applicant spent the $23.00 but, rather, to the issue that if she is a tenant she does not have to repair the property. The applicant’s evidence was that she spent money fixing things up where she was living. It seems to me the arrangement is a somewhat loose arrangement between the applicant and her parents but I consider an expense of $23.00 a week maintaining the property that the applicant lives in is not unreasonable.
Gas, Electricity, Repairs and Furnishings
Mr Jordan, counsel for the respondent, submitted at paragraph 36.3 of his submissions:
“[36.3] It is submitted that the gas, electricity, repairs and furnishings (all of which total $130 (sic) ought to be divided one-third between each of the parties and thus the Applicant’s claim in respect of these ought to be $44 rather than $74 which she claims, which would reduce her expenses by a further $30.”
The applicant’s evidence was that she spends more time at home than do her two children and I consider that the apportionment that she has made with respect to these expenses is reasonable.
Entertainment
The applicant claims $130.00 for hobbies and entertainment. The submission from the respondent is that he spends $50.00 on himself and, therefore, I should reduce this sum in the expenses of the applicant. I note that the respondent spends $50.00 on his partner with respect to entertainment and an additional $100.00 on holidays for the two of them, being $75.00 for him and $25.00 for his wife. The applicant makes no claim for holidays.
I am satisfied that the sum of $130.00 in the context of the expenditure set out in the respondent’s material is reasonable, particularly when part of it relates to eBay purchases for (omitted) and the like, which assist the applicant in steadying her hands which suffer from tremor. The wife’s reasonable expenses, therefore, are $892.50 minus $146.00 being the amount for the rent that I have not allowed. The expenses come to a sum of $746.50.
The Wife’s Income
The wife’s payments of $260.00 and $73.00 are to be disregarded pursuant to s.90SF(4). The payments of child support are not income, in the sense that they relate to the child, and can be disregarded. The wife’s income, therefore, for the purposes of this application is nil.
Conclusion
I have to assess the applicant’s ability to support herself. I am satisfied that the applicant is unable to support herself, at least on an interim basis, because she has a mental incapacity. This incapacity was conceded by the respondent. I consider that she is unable to work at this time and this is consistent with the employment services assessment report exhibited at G2 of her affidavit filed 2 February 2012.
I will order that the respondent pay the applicant $746.50 per week from 8 March 2012.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cassidy FM
Date: 14 March 2012.
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