Grieves and Grieves (No.2)
[2011] FMCAfam 1291
•5 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRIEVES & GRIEVES (No.2) | [2011] FMCAfam 1291 |
| FAMILY LAW – Maintenance – spousal maintenance – urgent spousal maintenance – interim order – application to vary spousal maintenance order – whether order should be discharged – whether ongoing need – whether Respondent has capacity to pay. |
| Family Law Act 1975, s.77 |
| Grieves & Grieves [2011] FMCAfam 1150 |
| Applicant: | MS GRIEVES |
| Respondent: | MR GRIEVES |
| File Number: | SYC 2146 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 November 2011 |
| Date of Last Submission: | 21November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ladopoulos |
| Solicitors for the Applicant: | McCabe Partners |
| Solicitor for the Respondent: | Ms Becker |
| Solicitors for the Respondent: | Giles Payne & Co |
ORDERS
UNTIL FURTHER ORDER
Order (1) made on 19 September 2011 is varied so as to provide that the Respondent is to pay the Applicant the sum of $500.00 per week by way of urgent spousal maintenance the first payment to be made by 6 December 2011 and weekly thereafter.
The Respondent must do all things necessary to ensure that the company [S] PTY LIMITED continues to make the following payments as and when they fall due:
(a)The mortgage repayments of $12,369.00;
(b)The repayments on the Mercedes Benz motor vehicle used by the Applicant;
(c)All costs of registering and insuring the said Mercedes Benz motor vehicle and all reasonable costs of maintaining the said motor vehicle; and
(d)All utilities, rates and taxes associated with the matrimonial home at Property B in the State of New South Wales.
IT IS NOTED that publication of this judgment under the pseudonym Grieves & Grieves (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2146 of 2011
| MS GRIEVES |
Applicant
And
| MR GRIEVES |
Respondent
REASONS FOR JUDGMENT
Application
This is an application to vary an earlier order for urgent spousal maintenance. The Respondent Husband asks the Court to discontinue the order, on the basis that he cannot continue to pay the amount required. The Applicant Wife asks that the maintenance order should continue unchanged.
Background
On 19th September 2011 I made an order for urgent spousal maintenance in favour of the Wife in the sum of $800.00 per week, the first payment to be made on 4th October 2011 (Grieves & Grieves[1]). It is an order until further order, as is so often the case in matters where an order for urgent spousal maintenance is made under the provisions of s.77 of the Family Law Act 1975.
[1] [2011] FMCAfam 1150
When the order was made, it was done in the context of an agreement by the parties that the former matrimonial home was to be listed for sale by private treaty. If the home did not sell within a reasonable time, then an auction was envisaged for 5th November 2011.[2] It is common ground that the former matrimonial home has not been sold. The parties are of the opinion that it will not be sold until January or February, as the market is currently very quiet.
[2] [2011] FMCAfam 1150 at [9]
When I made the order for urgent spousal maintenance on 19th September 2011, I also ordered that the parties were to attend a conciliation conference with a Registrar of the Court to consider the financial matters between them. That conciliation conference took place on Friday 11th November.
When I made the Order for urgent spousal maintenance, I said:
That is an order until further order and it will be reviewed either at the conciliation conference with the Registrar or if it is not dealt with then for some reason, it will be reviewed when the matter comes back before me for further mention on Monday 21 November 21 November 2011 at 12 noon.[3]
[3] [2011] FMCAfam 1150 at [13]
On 21st November, when the matter came back to Court, I was informed that the conciliation conference had not resulted in a settlement of the matters between the parties and the question of urgent spousal maintenance had not been discussed at all.
Evidence and Orders Sought
The Respondent relies on these affidavits:
a)his affidavit sworn on 17th November 2011; and
b)the affidavit of Ms C sworn 3rd November 2011.
The Respondent asks the Court “to discontinue the payment of spousal maintenance in the sum of $800.00.”[4]
[4] Affidavit of Mr Grieves 17.11.2011 at paragraph [20]
In his affidavit, the Respondent deposes that he has been making the payments of $800.00 per week but is “struggling” to make those payments, as is his company, [S] Pty Ltd. He annexes to his affidavit copies of:
a)The Cash Flow Forecast for [S] Pty Ltd up to February 2012; and
b)A longer term forecast which shows that the company will be in debt in the amount of $81,500.00 by October 2012 if it continues at its present rate.
The Respondent deposes that:
a)[S] Pty Ltd owes “a large amount”[5] to the Australian Taxation Office and has entered into an arrangement to pay the arrears in instalments of $3,000.00 per month from 2nd December 2011 until 2nd May 2012;[6]
b)The Christmas period is traditionally a very slow time in the [omitted] field, which is the Respondent’s business, and his company will be relying on income derived from its [omitted] rather than [omitted] for its income over that period;[7]
c)There few excess funds available in the parties’ mortgage with the Westpac Bank;[8]
d)The company pays approximately $1,871.00 (presumably per month) in car repayments “of which $1,200.00 is the repayment for the Applicant Wife’s Mercedes Benz vehicle”.[9]
e)He has been informed by the selling agent for the property that only one offer has been received, in the sum of $1,900,000, which he believes would not be sufficient to discharge all the parties’ debts and pay agent’s commission;[10]
f)The agent does not believe that the property will sell over the Christmas period;[11]
g)He pays for his own expenses as well as those for the parties’ two sons, [X] and [Y], both of whom live in the former matrimonial home;[12]
h)He has a heart condition and high blood pressure and has been advised by his doctor to ease his workload.[13]
[5] unspecified
[6] Affidavit of Mr Grieves 17.11.2011 Annexure “C”
[7] Ibid at paragraph [8]
[8] Ibid at [9] and Annexure “D”, a bank statement showing total funds available as $2,623.26
[9] Ibid at [10]
[10] Ibid at [12]
[11] Affidavit of Mr Grieves 17.11.2011 at [12]
[12] Ibid at [15] and [19]
[13] Ibid at [16]-[17 and Annexures “E” and “F”
The Respondent also relies on the affidavit of Ms C, sworn 3rd November 2011. Ms C is a casual [occupation omitted] and in her affidavit she set out how she applied to the [omitted][14] for reaccreditation as a casual [occupation omitted]. She deposes that she is currently employed as a casual [omitted] at two different [workplaces] and earns $328.00 net per day.[15]
[14] The [omitted] was established in April 2011
[15] Affidavit of Ms C 3.11.2011 at paragraphs [15]-[16]
The Applicant Wife relies on her affidavit sworn on 17th November 2011. In her affidavit she deposes that:
a)the former matrimonial home did not go to auction on 5th November on the advice of the selling agent;[16]
b)she expects to complete her [qualification omitted] course in early December and will apply for [omitted] positions once she is qualified;[17]
c)she is working as a [occupation omitted], for which work she earns $90.00 per week;
d)she would like to spend some time caring for her elderly mother, who was injured in an accident, after she completes her course;;
e)her son [Y] has returned to live in the matrimonial home and he is not currently in employment.
[16] Affidavit of Ms Grieves 17.11.2011 at paragraph [2]
[17] Ibid at [3]
The Applicant annexes a number of documents to her affidavit, including a list of her weekly expenses since the payments of maintenance commenced.
Submissions
The Applicant submits that the spousal maintenance should continue at its present rate. Her income from working as a [omitted] will be suspended over the December and January school holiday break. She does not expect to be able to obtain work as a [omitted] until January or February, again, because of the Christmas holiday period. She has sparse funds available to her. However, she has had payments from [S] Pty Ltd notionally made to her but in reality she has not been paid those amounts.
The Respondent submits that he, and the company, cannot continue to pay spousal maintenance at the rate of $800.00 per week. He submits that the Applicant could obtain work as a [omitted] if she were to apply. He offers to continue making these payments:
a)The mortgage repayments of $12,369.00;
b)The car repayments of $1,871.00, of which $1,200.00 relates to the Applicant’s car;
c)The costs of registering, insuring and maintaining the Applicant’s car;
d)All utilities, rates and taxes associated with the matrimonial property and [S] Pty Ltd; and
e)The sum of $200.00 per week to the Applicant to assist her with her living expenses.
Conclusions
It is unfortunate for both parties that the former matrimonial home has not sold. On the evidence before the Court, it would seem unlikely that the property will sell before February 2012, at the earliest.
The December/January holiday period would appear to offer relatively lean returns for both parties.
It is the evidence of the Respondent Husband that this time of the year is not a time when he can expect much in the way of [income omitted]. He says that his company will be obliged to rely on its [omitted] to provide the income to meet its expenses.
The Applicant Wife will not finish her [omitted] course until early December, so it is unlikely that she will be able to obtain employment in that field before January at the earliest. Her [omitted] work will not be available to her over the December/January holiday period.
The Respondent submits that the Applicant should consider going back to [occupation omitted], pointing to the affidavit evidence of Ms C as an example. However, Ms C’s experience is not necessarily a guide to the success that the Applicant might expect if she were to apply to the [omitted] for accreditation and work as a casual [omitted]. In any event, [omitted] work would not be available to the Applicant, even if she were successful, until the end of January.
Thus, the income prospects for both parties would appear to be relatively bleak over December and January. It must follow that the earlier order for urgent spousal maintenance needs to be reconsidered. I am satisfied that that the Applicant still has a need for spousal maintenance for the time being. However, the Respondent’s capacity to pay at the present rate is doubtful.
Consequently, the Order for urgent spousal maintenance made on 19th September 2011 is to be varied, taking into account the needs of the Applicant and the proposals of the Respondent as to what he claims he is and is not able to pay.
In my view, it is reasonable to take into account the Respondent’s ongoing payments, being the repayments on the mortgage and the payments of utilities, rates and taxes concerning the matrimonial home. The Respondent states that he is currently making repayments on both his car and the Applicant’s car, and he meets the costs of registering, insuring and maintaining that car. The ongoing order should take those payments into account. I do not propose to make an order that the Respondent continue to make the repayments on his own car, as that would hardly be a payment attributable to spousal maintenance.
The Respondent also offers to pay the sum of $200.00 to the Applicant “to assist her with her living expenses generally”.[18] This should be characterised as spousal maintenance. I stated in the earlier decision at [7] that the spousal maintenance order to be made would supplant the sum of $200.00 that the Respondent was currently paying.
[18] Affidavit of Mr Grieves 17.11.2011 at [22.e]
I propose to vary the earlier order so as to provide that the Respondent would pay to the Applicant, until further order, spousal maintenance in the sum of five hundred dollars per week. He will also be required to do all things necessary to ensure that [S] Pty Limited continues to make regular payments towards the mortgage over the former matrimonial home and the repayments and other expenses relating to the Mercedes Benz motor vehicle used by the Applicant.
The Respondent was required to make the earlier payments by 4th October 2011 and weekly thereafter, so the operative date for payment will be Tuesday 6th December 2011 and weekly thereafter.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 28 November 2011
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