H and H - [2003] FMCAfam 471

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & H

[2003] FMCAfam 471

FAMILY LAW – Spousal maintenance – where wife has been required to cease work for medical reasons – whether wife can obtain alternative employment – whether husband has any available income – where husband is paying assessed child support – whether wife’s medical condition prevents her from obtaining employment – where wife has received greater part of property settlement.

Family Law Act 1975, ss.72, 75(2)
Child Support Assessment Act 1989

In the Marriage ofWeir (1992) 16 Fam LR 154
In the Marriage ofMitchell 19 Fam LR 44

Applicant:

RJH

Respondent:

IKH

File No:

PAM1495 of 2003

Delivered on:

29 October 2003

Delivered at:

Parramatta

Hearing date:

25 September 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr J Levy

Solicitors for the Applicant:

Ian Harper & Co

Counsel for the Respondent:

Mr D Alexander

Solicitors for the Respondent:

Philip Sim & Associates

ORDERS

Application dismissed.
No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM1495 of 2003

RJH

Applicant

And

IKH

Respondent

REASONS FOR JUDGMENT

Proceedings

These proceedings are brought by the wife for spousal maintenance. She seeks an order that the husband pay her $185 per week with the first payment to commence seven days from the making of my orders and weekly thereafter. The wife was born in 1957 and is presently 46 years of age. The husband is 45 years of age. The parties were married in 1979 and their first son was born in August 1990. Their second son was born in December 1991. The parties separated in March 2001 and their divorce became absolute on 6 April 2003. On 16 May 2002 final orders were made for parenting and property issues which provided that the wife received 65 percent of the gross value of the family home. The husband paid the wife $25,000 in respect of his superannuation fund. In money terms this meant that the husband received from the property settlement $46,892.43 his superannuation valued at $49,961 but unaccessible, a Toyota van valued at $4,000 and personal effects and furniture. The wife received $162,375.34, a Commodore motor vehicle valued at $3,000 and personal effects and furniture. The wife has the two boys living with her for 73 percent of the time. The husband has them 27 percent of the time. The husband pays child support in the sum of $300 per week and he pays private health insurance.
At the time the financial arrangements were entered into between the parties the wife was working as a nurse at an institution for developmentally disabled adults. She deposes that the work was heavy work involving making beds, physically assisting patients and other physical duties. In late October 2002 she began suffering symptoms of shortness of breath, constant tiredness and swollen feet. On 25 November 2002, following an appointment with her general practitioner and then a specialist cardiologist she was told she had congestive cardiac failure and went on sick leave. She has not returned to work since. Her consultant cardiologist Dr Mohan provided a report, which indicated that the applicant continued to receive treatment from his outpatient clinic for heart failure. He stated that despite optimum medication she continues to be short of breath on any activity other than mild exertion. The report indicated that the applicant wife could not lift anything more than, at most, 5 kilograms in weight at any one time and that she was limited in obtaining gainful employment. He suggested she was only suitable for sedentary employment for a four to five hour period per day. Under cross examination the Doctor indicated that he was capable of prescribing drugs which would delay the onset of any serious symptoms although he felt that she had not shown improvement to the extent that he would have expected. He diagnosed her as having viral myocarditis or inflammation of the muscles of the heart. He indicated that the applicant would be suitable for medical reception work provided it was reasonably light.
The applicant currently resides in a rented house with the two children of the marriage who, she says, give her assistance in things such as carrying the shopping and picking up items around the house as well as vacuuming and making the beds. In her affidavit she stated that she was paying her brother $50 per time approximately once a month to bring his lawn mower and mow the lawn. However, under cross-examination she admitted that this had only happened on one occasion. She stated that from her settlement of $162,000 odd she bought a new car for $20,000, some furniture, a computer and paid removal expenses into the new premises. She says she now has $110,000 odd in her account upon which she obtains interest at the rate of approximately 4.75 percent. By the time the matter came to court the wife was claiming that her ING account had diminished to approximately $78,000 but on 14 April 2003 she had withdrawn $31,000 which went into her CBA account and which she says she used to repay a debt of $25,000 to her family and paid $5,000 off her bills. She did not produce the CBA bank statements. Nor did she produce her accounts with the Credit Union of Australia. The debt of $25,000 is not disclosed in her financial statement.
The applicant wife claimed that she had a credit card debt of approximately $2,500 and was spending $25 a week in interest payments. These figures do not compute but it does seem unreasonable to expect interest payments on a credit card debt to be taken into account when the applicant plainly has the ability to repay that debt in full. This would have the effect of reducing her taxable income and avoiding the payment of interest out of post tax income.
Much of the wife’s cross-examination was taken up with her leisure activities. The wife admits to being a member of three registered clubs and to attending these on a regular basis. Some returns from poker machines at one of these clubs were proposed to be tendered in evidence. They appeared to indicate a significant spend by the applicant. However, information that was provided about these documents indicated that they could not show a net spend and for that reason they were not of assistance. The applicant admitted to losing approximately $40 per week on poker machines.
The applicant also admitted that she is a member of a bowling league. She plays most weeks using an 11 pound ball. She did not indicate that her ability to bowl was affected by her illness and she had not told her doctor about this activity.
The applicant argued that she was unable to work. She stated that she did not have the capacity or training to undertake the type of non-strenuous work recommended by her doctor. She agreed that she had taken courses in desktop publishing, computer, canteen management and had some experience in clerical jobs. It is always difficult for a court to make findings as to what a person is capable of in the way of employment but it can be said that whilst the applicant’s ability to carry out her former duties as nurse must be severely restricted, if not excluded, she has not made any significant efforts to find alternative employment. Dr Mohan agreed with me that she could undertake the work of a medical receptionist. She has medical training, she has done clerical work in the past and she has a knowledge of computers. I did get the impression from Dr Mohan’s evidence that he was doing his best to support his patient’s case and I would not accept that she is unemployable.
The respondent husband is now in a new relationship and has living with him his son by his former marriage. That son was a student and was being supported by his father. He ceased being a student and obtained some employment. The husband’s evidence is that his son now intends to return to his studies.
There are also present in the house two daughters and the son of the husband’s partner. The two sons who are resident with the applicant wife also spend 27 percent of the time with their father.
The husband has an income of $1,317 per week from which $422 is deducted for tax, superannuation and union fees. He pays $300 per week in child support leaving him with less than $600 per week. This contrasts with the applicant wife’s income of approximately $723 including Centrelink and family tax payments.
The husband has now purchased a home with his partner. The house is owned as tenants in common. The husband’s share is 30 percent. However, the husband pays 50 percent of the mortgage. The reason for this, which I accept, is that the husband’s cash contribution to the property was much less than that which would have been expected for a 30 percent interest. In those circumstances it was agreed between him and his partner that he would pay a higher proportion of the mortgage. I am satisfied that this arrangement is equitable and was not constructed in order to avoid these proceedings.
The applicant sought to cross examine the respondent to the effect that the son of the family who lived with him would be costing the respondent more than the amount of the contribution the respondent was arranging for him to pay ($70) out of his weekly wage of $500. The respondent readily accepted this but he also indicated that his son was soon to go back to university and would not be in a position to make any greater contribution.
The respondent was cross-examined at some length about the figures, which he put in to his Form 17. Having heard his explanation, for example about medical expenses, I believe that the figures in that statement are reasonably accurate when one takes into account that some payment is made for the two children who live with the applicant. I would find that there should be a reduction in the expenditure of the husband from that deposed to of $100 per week being the amount by which I believe it is reasonable for the eldest son to contribute whilst he is at work.
The respondent husband agreed that he had made improvements to his new home including the installation of a spa, the conversion of a bedroom for his son, decoration, the purchase of a new fridge, television and DVD player. He stated he had approximately $300 in the bank.

The Law

This application is made under section 72 of the Family Law Act 1975 (the “Act”) and the applicant relies on section 72(a), “having the care and control of a child” and 72(b) “by reason of her physical incapacity for appropriate gainful employment.” The matters which the court is obliged to take into consideration are set out in section 75(2) and it is appropriate in coming to a conclusion in this matter that I deal with each of those matters in turn so far as they are relevant. I shall assume that the contents of these sub sections are known to the parties and will not set them out.

Section 75(2)(a)

The parties are of the same age but the respondent husband is in better health than the applicant wife. I am satisfied that the applicant wife does suffer from the heart complaint identified by her treating specialist but I think that her disability, insofar as it affects her earning capacity, was exaggerated by her.

Section 75(2)(b)

After payment of tax and child support the husband’s income is in fact less than that which is received by the wife. But her income includes approximately $310 of Centrelink and family tax payments. The husband indicated that he did have opportunities to do overtime (he is a TAFE lecturer) and it would appear that his living arrangements with his current partner do allow him some available income which has been used in the past for home improvement purchases. The wife has more money in the bank than the husband in that she retains a substantial proportion of the property settlement moneys. It is to be remembered that she receive the bulk of those moneys and that whilst the husband was left with his superannuation he paid the wife $25,000 for her share and he is unable to access his. I have already found that the wife is capable of working in a sedentary position such as that of a medical receptionist. When the wife was working as a nurse she was only working part time earning approximately $285 per week.

Section 75(2)(c)

The wife has the care and control of the two children of the marriage for 72 percent of the time.

Section 75(2)(d)

Both parties have commitments that are necessary to enable them to support themselves and three children. The husband pays child support and looks after the children when they come to visit with him. The wife (using the child support moneys) pays for the children’s needs when they are with her. I am satisfied that whilst the eldest son of the husband is in work he should be making some contribution to the household but when he returns to being a student this would cease. I have no doubt that the husband spends some money on the children of his partner as is natural in most circumstances. However, I would not put that expenditure into the equation.

Section 75(2)(e)

I do not think that either party has an obligation to support any other person than the two children of the marriage.

Section 75(2)(f)

I have noted that the wife has given evidence she receives between $220 and $243 per week from Centrelink and $91 as a family tax rebate. The husband does not receive any pension.

Section 75(2)(g)

I am satisfied that the standard of living enjoyed by the husband is reasonable. The wife is obviously pushed to make ends meet. The real issue is whether that is because she is spending too much of her income on gambling or is not making sufficient effort to obtain alternative employment and whether in all the circumstances the husband should make up any shortfall. I note in regard to the husband that his ability to enjoy his reasonable standard of living may well be affected by the fact that his partner is currently on workers compensation. If the make up pay which she is currently receiving stops for any reason he would probably be asked to make a greater contribution towards household expenses. To that extent his responsibilities to support another person would commence.

Section 75(2)(h)

Not applicable

Section 75(2)(j)

The applicant wife says that she has contributed to her husband’s income earning capacity and financial resources and the husband has retained his superannuation entitlements. No evidence was proffered about the contribution alleged. It is true that the husband has retained his superannuation entitlements but he has paid the wife $25,000 in respect of her share.

Section 75(2)(k)

The marriage was of 22 years duration. The wife claims that it has affected her earning capacity but it is not entirely clear how that claim is made out. The one position for which the applicant was particularly qualified, nursing, was an occupation which she carried out after the marriage broke up.

Section 75(2)(l)

The applicant wife wishes to continue her role as parent to the two children under eighteen. However, it is not suggested that if she undertook employment of a type which was now suited to her for the same period which she was undertaking her previous employment that this would materially affect her ability to carry out her role as parent. She argues that her ability to carry out this role is diminished because she is not in work as a result of her heart disease.

Section 75(2)(m)

The applicant is not cohabiting with any other person. The husband is. The husband is now contributing towards another property. His financial circumstances within a two income family do appear from the evidence to be slightly better than those of the applicant wife. However, he and his partner have up to six children living in the house at any one time. His partner gave evidence that she was now on worker’s compensation.

Section 75(2)(n)

Orders under section 79 were made six months before the deterioration in the wife’s health. The orders, which have been discussed, gave the wife a very substantial proportion of the proceeds of sale of the matrimonial home together with $25,000 representing part of the applicant’s superannuation policy. The orders were made by consent.

Section 75(2)(na)

The respondent husband pays child support in accordance with an administrative assessment. He also pays the children’s private medical benefits insurances.

Section 75(3)

Section 75(3) of the Act orders a court to disregard any entitlement of the party whose maintenance is under consideration to an income tested pension allowance or benefit. It is my understanding that the purpose of this sub-section is to prevent a possible paying spouse from avoiding payment because of the receipt by the payee spouse of a government pension. In other words, it is an attempt to shift the burden of the financial liability from the state to the spouse. The reference in section 75(2)(f) that the sub-section is subject to subsection 75(3) would seem to me to indicate that this sub section is now aimed primarily at the payor spouse but no doubt it would allow there to be taken into account certain types of pension which are entirely independent of what could be described as social security relief. I think here of pensions paid to former members of the armed services or a blind persons pension. I am also of the view that section 75(3) is not proposed to operate so that a person who cannot afford to make a payment is obliged to do so.

Decision

In making my decision I have taken into account in relation to the failure by the applicant to produce important financial documentation the views of the Full Court In the Marriage ofWeir (1992) 16 Fam LR 154 and in relation to section 79 arrangements between the parties what the Full Bench said in In the Marriage ofMitchell 19 Fam LR 44. As expressed earlier I am of the view that the husband has some income which would be available to him for the payment of spousal maintenance if that was appropriate. Doing the best I can with the figures that are before me and considering his evidence and details of his expenditure I would put that at no higher than $100 per week. The question is whether or not the applicant has established her entitlement to such a sum. Although all the matters set out in section 75(2) are relevant I have to be satisfied that the applicant’s need for spousal maintenance falls within either of the sub sections of section 72. In regard to her needs for the purposes of looking after her children she is receiving child support. But, she says, because of her health she is unable to work and thus earn sufficient to keep herself and to make her contribution towards the upkeep of the children. I have not forgotten that her husband’s child support is not intended to pay 100 percent of the children’s upbringing nor that the purposes of the Child Support Assessment Act 1989 is to ensure that both parties pay their fare share of a child’s maintenance.
Although I am satisfied that the applicant could not return to nursing I do believe that there are positions which she could occupy without detriment to her health or to her children. I think that she is under an obligation to seek out such work effectively and I do not believe she has done this.
I was also concerned at the nature of the wife’s concessionary expenditure at registered clubs. Whilst it is not for the court to be judgmental about these matters it seems to me unreasonable for an applicant who spends, on her own admission, around $40 per week on poker machines in registered club to criticise her former spouse for making home improvements. This is what occurred in this case. I have a submission from the wife arguing that the husband cannot afford to pay his wife because he has indicated he has spent his concessionary income on a spa and other home improvements. This does not sit well with the wife’s conduct and I was gratified to see that the husband did not indulge in the same finger pointing in relation to the wife’s $25,000 car.

In all the circumstances I am not satisfied that the health of the wife has rendered her incapacitated for appropriate gainful employment. She accepted in evidence that when she was employed she was receiving sufficient moneys to enable her to get by and support her children. I will therefore dismiss the application. The applicant will have been advised by her able counsel that should her health deteriorate further there is no reason why another application cannot be made.

Costs

I am mindful that by making an order that the wife pay the husband’s costs she would inevitably face a significant reduction in the amount of capital which she still retains. This would reduce the income available to her from her investment. This in turn could lead to another claim under section 72(a) as some of that income is necessary for the applicant to support her children. In those circumstances I would make no order as to costs in this matter.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: Brant S

Date: