Graham & Graham

[2007] FamCA 1586

FAMILY COURT OF AUSTRALIA

GRAHAM & GRAHAM [2007] FamCA 1586

FAMILY LAW – SPOUSAL MAINTENANCE – Periodic spouse maintenance

FAMILY LAW – COSTS – Interim costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Graham

RESPONDENT: Mr Graham

FILE NUMBER: SYF 2710 of 2006

DATE DELIVERED: 28 November 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 28 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Miller

SOLICITOR FOR THE APPLICANT: Carlisle Attorneys

COUNSEL FOR THE RESPONDENT: Ms Pearson

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

1. That the husband pay to the wife directly or as she may direct by way of interim spousal maintenance a payment of $600 per week the first payment to be made within seven days from today's date and payments, subject to the parties agreeing to the contrary, to be made every week thereafter. 

2. The husband pay to the wife by way of interim costs the sum of $57,000 within 21 days from today's date.

3. Unless the parties agree to the contrary the husband forthwith do all things and sign all documents to cause the wife to be able to sell 2002 Volvo V70 station wagon, registration number … AND IT IS NOTED the wife proposes to sell that motor vehicle and that she will retain the net proceeds by way of interim costs.

4. In the event that the parties agree for the purposes of facilitating these orders, the husband is to do all things and sign all documents necessary to transfer the motor vehicle to the wife. 

5. The character of those transactions in relation to the payment of $57,000 and sale of the Volvo motor vehicle is a matter for the Trial Judge in final proceedings. 

6. The costs of the parties of and incidental to these proceedings are reserved. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2710 of 2006

MS GRAHAM

Applicant

And

MR GRAHAM

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for interim spousal maintenance and interim costs and orders sought in relation to the sale of a motor vehicle. 

2. As to the last issue first, it is agreed that the motor vehicle can be sold.  The wife asks for an order that the husband sell the vehicle and if he does not do it, that she sell the vehicle.  The husband is happy for her to sell the vehicle.  So there is no issue about that. 

3. In relation to spousal maintenance, the wife seeks a payment of $1170 a week.  In fact she seeks an order for $980 a week because events have overtaken the application.  The husband says that he should continue to pay what he is paying and in that regard wants the application dismissed.  Then the wife seeks an order that the husband pay interim costs in the sum of $73,569.10 within 21 days.  The husband says, "You can have the Volvo and $57,000."  I think what he says is, "If you can't borrow the money somewhere else, then I'll borrow the money and provide you with $57,000 and you'll have the proceeds of sale of the Volvo," which he thinks might add up to $85,000.

4. The wife and husband are 42 and 44 years of age. They started to live together in 1995, married in 1996, separated under one roof on 16 February 2006 and there they remain; separated under one roof.  They have two children, M and S, who are nine years and 10 months and seven years and 11 months of age.

5. The parties have a final hearing commencing on 30 January 2008. The explanation for the application being made so close to the hearing is the wife was in necessitous circumstances because she lost her job and she had some bills pressing and she was no longer able to access some funds that she was accessing before. 

6. Maintenance is a remedy available to parties to a marriage, whether the marriage is still on foot or not. Where one party is unable to adequately support themselves from their own resources the other can be required to provide support to the extent that they are able. I think in terms of the literal threshold issue of whether the wife can support herself adequately from her own resources, it is an agreed fact that she cannot. The husband's case – and it is quite a proper case – is that with the support he already provides which meets certain outgoings and the payment of child support, the wife's current income is adequate to meet the remainder of her expenses.  The wife disagrees with that. 

7. The wife's needs are estimated by her at $1741.75 a week.  They are an odd group of figures.  She provided in her affidavit on 7 November an average of what she actually spends and she actually spends $220 a week on food, but her estimate of her weekly needs, which in relation to most other categories is greater than the figure she actually spends, reveals that she wants to spend $70 a week less on food than she currently spends.  She spends $90 on household supplies but she wants to spend $150.  She spends $140 on the telephone and wants to spend $150.  She spends $40 a week on petrol and wants to spend $110.  She spends $10 a week on car maintenance and wants to spend $80 a week.  She spends $36 in car parking, and wants to continue to do so, she spends $50 on clothes and wants to spend $200; she spends $20 a week on medical, dental and optical, wants to spend $60. She spends $20 on hobbies and entertainment and wants to spend $50. She spends $40 on holidays and wants to spend $90. She spends on $20 on the chemist and wants to spend $25. She spends $20 on dry cleaning and wants to spend $30. She spends $10 on gifts and she wants to spend $60. As to the hairdresser and toiletries she does spend $90 but wants to spend $130. She spends $68 on insurance premiums but she only wants to spend $58. For health insurance she wants to spend $24.  She make no credit card payments now and she wants to spend $105. 

8. On the one hand, it is said, without going into the detail of the payments, that some of them seem a bit high.  On the other hand, it is said that they pale into insignificance compared to some of the commitments the husband has for himself.  In particular, there is some complaint from him about the wife leasing a car at $165 a week.  He leases one at $641 a week. That includes fringe benefit tax and so on.   He makes superannuation contributions of $252 a week. There is no suggestion that they are compulsory.  He spends $180 on his own entertainment and hobbies. That compares poorly with the wife wanting to spend $50 on her entertainment and hobbies. 

9. It is not possible for me to make a differential judgment about these things because there is no evidence to support them.  In theory, I accept that it is possible to spend $150 a week on household supplies.  It must be possible to spend $150 on the telephone.  It is certainly possible to spend $110 on petrol, but I do not know how, if you are only spending $40-odd how you would spend the remaining $70, unless you put the car up on blocks and just ran it.  Certainly one could spend less than $200 a week on clothing and shoes.  Presumably one could spend less than $130 a week on hairdressing and toiletries.  But none of it matters much. 

10. The parties have significant assets.  The husband has a significant income.  He works in the finance sector with a leading Bank.  I am told that his income last year was of the order of half a million dollars by way of salary and bonuses and other things.  There is an estimate of a potential payment to him of something in excess of that this year.  To be fair to him, he does not say that he cannot afford to meet any proper order.  It is just that he is resistant about this particular order.  He thinks that the wife could be working full-time more often and he thinks that she could meet her proper expenses – because many people do – out of the sort of salary she earns at around $50,000 a year. 

11. I am satisfied for the purposes of today that there is a shortfall.  Some of the problem may be addressed - if the Volvo motor vehicle generates more than is feared in relation to its sale, perhaps then some payments could be made off a credit card debt and not just minimum payments. We are dealing with a relatively short period.  The wife has not pursued spousal maintenance in the past.  So one way and another expenses are being met by her.  She gives details of 18 months worth of expenses.  There is nothing extraordinary in those expenses.  If you take out legal fees out of the 18-month estimate she gives, I calculate it at something like $43,000 a year, not unreasonable.  Certainly some of the wife's figures, as I have said, do not make any sense, and from that point of view I can see that there would be a reason for paring back the claim.  It is always difficult when you are dealing with something where somebody says, "This is what I do spend and this is what I want to spend."  It begs the question of whether there will ever be an opportunity to do it.

12. So I think there should be a payment, but not at $980 a week.  I will put the payment at $600 a week. Of course credit can be given for that if it transpires when there is an analysis of the two households, metaphorically speaking, that the husband has provided a surplus of support, that is called contributions and it has a lovely home in s.79 proceedings and he will get a credit for that. Adjustments can be made so there is no harm done.  There is no issue in principle about the interim costs and I will make the orders.  I will simply make the orders as the husband proposes.  The risk he runs I guess is that if the Volvo sells for less than $16,000, then the order that I make will not have achieved what the wife has sought and I do not see any reason why she should not be able to achieve what she sought. Therefore she might apply again. If the Volvo generates more than net $16,000, then she is in credit and no harm done.  

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate

Date: 17 January 2008