Hainsworth & Pardue
[2024] FedCFamC2F 121
•5 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hainsworth & Pardue [2024] FedCFamC2F 121
File number(s): PAC 3782 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 5 February 2024 Catchwords: FAMILY LAW – PROPERTY – Section 90SM property adjustment –– just and equitable orders made – spousal maintenance order made. Legislation: Family Law Act1975 (Cth) ss 90SE, 90SF, 90SM Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 23 January 2024 Place: Parramatta Counsel for the Applicant: Mr Heazlewood Solicitor for the Applicant: Longton Legal Solicitor for the Respondent: Dean Lawyers ORDERS
PAC 3782 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HAINSWORTH
Applicant
AND: MS PARDUE
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
5 FEBRUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The applicant within 3 days draws up two lists of items of household contents, furniture and personal effects, and the respondent within 3 days picks one list and retains the items on that list.
2.Upon compliance with Order 1 above, the respondent provides access to the applicant on a day and time as agreed between the parties, to allow him to enter the premises to collect the items on the list of items that he will retain.
3.On the making of these orders:
(a)The respondent shall vacate the property within 21 days;
(b)The respondent shall, subject to Orders 1 and 2 above, remove her items and possessions and those of the child X from the property;
(c)The applicant shall, subject to Orders 1 and 2 above, remove his items and possessions from the property;
(d)After the respondent vacates the property the applicant shall arrange to paint the interior of the premises and replace the floor coverings. The cost of the said works is to be as agreed between the parties, or failing agreement the applicant shall provide the respondent three quotations for each of the painting and replacement of floor coverings, and the respondent shall choose one quote for each work item. The costs shall be shared equally by the parties, be paid by the applicant in the first instance and adjusted on the sale of the property known as and situate at B Street, Suburb C in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier … (“the property”).
4.The parties forthwith do all acts and things and sign all documents necessary to list the property for sale by public auction on the following conditions:
(a)The parties shall appoint an agent as agreed and failing agreement the applicant shall nominate three agents within 4 days from the date hereof and the respondent shall select one to act as the agent on the sale within 3 days of receiving the applicant’s nominations in writing;
(b)The parties shall appoint Longton Legal to act as the conveyancer on the sale, and in the event that Longton Legal declines to so act, the applicant shall nominate three conveyancers within 4 days from the date hereof and the respondent shall select one to act as the conveyancer on the sale within 3 days of receiving the applicant’s nominations in writing;
(c)The auction shall be listed no later than 6 weeks from the date of these Orders;
(d)The reserve price shall be set as agreed between the parties and failing agreement by the agent;
(e)Upon settlement of the sale of the property, the net proceeds of sale shall be disbursed in the following manner and priority:
(i)In payment of agent’s commission, advertising and marketing fees incurred in relation to the sale;
(ii)In payment of professional legal costs and disbursements incurred in relation to the sale;
(iii)In payment of the mortgage to D Company in order to discharge the mortgage;
(iv)In payment of the following debts owing by the applicant and payable to:
A.Westpac Mastercard account ending #...93, $14,737;
B.E Company Mastercard account ending #...58, $17,440;
C.F Company Rewards Card account ending #...93, $9,909;
D.F Company Rewards Card account ending #...17, $18,894;
E.G Company Credit Card account ending #...41, $4,997;
F.H Company Overdraft to F Company…#…86, $455;
G.J Bank…#…61, $100;
H.K Pty Ltd, $13,729;
(v)In payment to the applicant of 50 per cent of the cost of the works paid for by him in accordance with Order 3 above;
(vi)The balance then remaining to be divided $7,215 to the applicant and $36,518 to the respondent, or if no such balance is available, in accordance with the Court’s within Reasons for Judgment;
(f)Pending the settlement of the sale of the property, the parties be restrained from drawing down on the existing loan facility and further encumbering the property without the consent in writing of the other party.
5.The applicant’s superannuation entitlement with Super Fund 1, member number …67, be dealt with as follows:
(a)This Order has effect from the operative time;
(b)In accordance with s 90XT(1)(a) of the Family Law Act1975 (Cth) (“the Act”) whenever a splittable payment within the meaning of s 90XE of the Act becomes payable to or on behalf of Mr Hainsworth from his interest in the Super Fund 1 (Member Number …), Ms Pardue is entitled to be paid an amount calculated within Pt 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $210,101 and there shall be a corresponding reduction in the amount Mr Hainsworth would be entitled to receive but for these Orders;
(c)That, having been accorded procedural fairness in relation to the making of this Order, the Order binds the trustee of Super Fund 1;
(d)The operative time for this Order is 7 business days from service of this Order upon the trustee;
6.The applicant be declared the sole legal and beneficial owner of Motor Vehicle 1 and indemnify and keep indemnified the respondent in respect to the car loan or any other liability in respect to the motor vehicle.
7.The parties forthwith do all acts and things and sign all documents necessary to transfer Motor Vehicle 2 to the respondent, with the costs of the motor vehicle transfer to be borne by the applicant;
8.Unless otherwise specified in these Orders, the applicant retain and be declared the sole legal and beneficial owner of all his right, title and interest in and to:
(a)All cash at bank and other monies invested by him;
(b)All personal effects in his possession;
(c)All other property and financial resources in his name, possession, or control or to which he is or may become entitled;
9.Unless otherwise specified in these Orders, the respondent retain and be declared the sole legal and beneficial owner of all her right, title and interest in and to:
(a)All cash at bank and other monies invested by her;
(b)All personal effects in her possession;
(c)All her superannuation benefits;
(d)All other property and financial resources in her name, possession, or control or to which she is or may become entitled;
10.Unless otherwise specified in these Orders, the applicant shall be solely responsible for all liabilities in his sole name or jointly with any other person or entity and the applicant shall indemnify and keep indemnified the respondent against any present or future liability in respect of any debt, debt balance in any loan account, credit account, personal loan or any other liability relating to the applicant in whatsoever kind or nature;
11.Unless otherwise specified in these Orders, the respondent shall be solely responsible for all liabilities in her sole name or jointly with any other person or entity and the respondent shall indemnify and keep indemnified the applicant against any present or future liability in respect of any debt, debt balance in any loan account, credit account, personal loan or any other liability relating to the respondent in whatsoever kind or nature;
12.Pursuant to s 90SE(1) of the Act the applicant shall forthwith pay maintenance to the respondent in the sum of $32 per week for a period of 18 months.
13.The parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
14.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders then the Judicial Registrar of the Court shall be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Judicial Registrar being provided with verification of such refusal or failure by way of affidavit.
15.Liberty to apply on 7 days’ notice in relation to any issue relating to the facilitation or implementation of the above Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These are Reasons for Judgment relating to a final property hearing held before the Court on 23 January 2024.
The husband and wife both appeared legally represented.
PROPOSALS
The husband, by his Case Outline, sought Orders giving effect to an overall adjustment of 67.5 per cent to the husband and 32.5 per cent to the wife, other than superannuation. He specifically sought orders for the sale of the motor vehicle in the wife’s possession, the discharge of his various credit card debts, and a superannuation split to the wife with a base amount of $66,828.
The wife, by her Amended Response, sought orders giving effect to an overall adjustment of 70 per cent to the wife and 30 per cent to the husband, but after certain payments were made to the wife. She sought a superannuation split in her favour with a base amount of $234,600. By her Case Outline, the wife contended for an overall division of 60 per cent to her and 40 per cent to the husband. She also sought orders for spousal maintenance.
MATERIAL RELIED UPON
The husband relied upon:
(a)Amended Initiating Application filed 2 March 2023;
(b)Reply to Response to Final Orders filed 19 October 2023;
(c)His affidavit filed 22 December 2023;
(d)His Financial Statement filed 18 January 2024;
(e)His Financial Questionnaire filed 5 September 2022;
(f)His Financial Summary filed 13 July 2022;
(g)Amended Response filed 13 October 2023;
(h)The wife’s affidavit filed 29 December 2023;
(i)The wife’s Financial Statement filed 29 December 2023;
(j)The wife’s Financial Summary filed 7 October 2022;
(k)His Case Outline filed 19 January 2024.
The wife relied upon:
(a)Amended Response filed 13 October 2023;
(b)Her affidavit filed 29 December 2023;
(c)Her Financial Statement filed 29 December 2023;
(d)Child Impact Report of Ms L dated 27 September 2023;
(e)Her Case Outline filed 19 January 2024.
The following documents became exhibits:
(a)Exhibit A: Page 67 of husband’s tender bundle;
(b)Exhibit B: Joint balance sheet;
(c)Exhibit C: Page 11 of husband’s tender bundle;
(d)Exhibit D: Pages 108–109 of husband’s tender bundle;
(e)Exhibit E: Page 44 of husband’s tender bundle;
(f)Exhibit F: Pages 45–61 of husband’s tender bundle;
(g)Exhibit G: Centrelink payment summary for 2022.
EVIDENCE
The Court has considered the documentary material relied upon by the parties discussed above, and the parties’ oral evidence. The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out under the headings, “Balance Sheet”, “Contributions”, and “Section 90SF(3) of the Act”.
LEGAL PRINCIPLES
The parties’ relationship was a de facto relationship. The legal principles relating to property adjustment following the breakdown of these relationships are similar to the legal principles relating to former marital relationships.
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
BALANCE SHEET
The joint balance sheet, Exhibit B, is now set out:
Ownership Description Applicant’s value Respondent’s value Assets 1 A B Street, Town C $428,000 $428,000 2 A Motor Vehicle 1 $85,000 $85,000 3 A Motor Vehicle 2 $44,400 $25,000 4 A Cash at J Bank $68 $68 5 A Cash in Longton Legal Trust Account 6 J Household contents 7 J Personal items in storage Total $557,468 $538,068 Addbacks 8 Total $ $ Liabilities 9 A Home loan $304,006 $304,006 10 A Westpac MasterCard …93 $14,737 $14,737 11 A E Company Rewards MasterCard …58 $17,440 $17,440 12 A F Company Rewards MasterCard …93 $9,909 $9,909 13 A F Company Rewards Card …17 $18,894 $18,894 14 A M Company Credit card now G Company …41 $4,997 $4,997 15 A H Company Overdraft to F Company …86 $455 $455 16 A J Bank #...61 $100 $100 17 A K Pty Ltd $13,729 $13,729 18 A Legal Fees secured by Caveat 19 A Legal fees 20 A Loan to Applicant from father 21 J Strata Levies 22 R N School Fees $0 $0 Total $384,267 $384,267 Superannuation Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 23 A Super Fund 1 $442,318 $442,318 24 R Super Fund 2 $5,876 $5,876 Total $448,194 $448,194 Financial Resources Ownership Description Applicant’s Value Respondent’s Value 25 N/A Total NIL Net Total Assets Total (Assets – Liabilities) $123,201 $153,801 Total (Assets – Liabilities + Superannuation) (As per original)
In relation to item 3, Motor Vehicle 2, there is no evidence supporting the wife’s contended value of $25,000. Exhibit A, being an online car sales instant offer for the motor vehicle, provides a value range of $37,800 – $44,400. Doing the best it can, for item 3 the Court will adopt the mid-range of these figures leaving a sum of $41,100.
The final balance sheet will be as follows:
Ownership Description Value Assets 1 A B Street, Town C $428,000 2 A Motor Vehicle 1 $85,000 3 A Motor Vehicle 2 $41,100 4 A Cash at J Bank $68 Total $554,168 Liabilities 5 A Home loan $304,006 6 A Westpac MasterCard …93 $14,737 7 A E Company Rewards MasterCard …58 $17,440 8 A F Company Rewards MasterCard …93 $9,909 9 A F Company Rewards Card …17 $18,894 10 A M Company Credit card now G Company …41 $4,997 11 A H Company Overdraft to F Company …86 $455 12 A J Bank #...61 $100 13 A K Pty Ltd $13,729 Total $384,267 Superannuation Member Name of Fund Value 14 A Super Fund 1 $442,318 15 R Super Fund 2 $5,876 Total $448,194 Net Total Assets Total $618,095
Accordingly, the parties’ non-superannuation assets are $554,168. Liabilities are $384,267. Accordingly, the total for net non-superannuation assets is $169,901. The parties’ superannuation entitlements are $448,194. The net total asset figure is thus $618,095.
SECTION 90SM(3) OF THE ACT
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
CONTRIBUTIONS
The relationship of the parties spanned the period from about late 2006 to about July 2020; a relationship of over 13 years.
At cohabitation commencement, the husband owned:
(a)Superannuation of about $100,000;
(b)A car worth about $6,000, and another car later sold in 2012;
(c)A 50 per cent interest in a property at Town O (owned with his former wife). In 2009 he received net sale proceeds of $91,679; this sum was in part applied to rent and living expenses of the parties, with $25,837 being applied to a deposit for the purchase of the parties’ relationship home in about late 2011;
(d)Personal belongings.
At cohabitation commencement the wife had a car.
During the parties’ relationship the husband was the primary income earner for the family working full-time as a public servant and applied his income for the benefit of the family including in relation to mortgage repayments, utility bills, Strata levies, and motor vehicle expenses.
The wife did not work in paid employment during the parties’ relationship.
During the parties’ relationship the parties shared the care of the child X (now aged 16 years and born in 2007). However, the Court would infer that the wife’s care of the child from the child’s birth to commencement of school was probably significantly greater than that of the husband because the husband was usually in full time employment and the wife was not in employment during the parties’ relationship. The Court would also infer that the wife’s care of the child, following the husband’s accident in 2012 when he was seriously injured, was probably significantly greater than the care afforded the child by the husband at least during the time spanning his many medical operations and procedures and related recovery time. The husband was hospitalised for 6 months in total.
During the parties’ relationship the husband attended to the majority of household duties subject to the 2 periods which have been discussed in the immediate above paragraph when, the Court infers, the wife probably carried out the majority of household duties.
After separation in July 2020, the child remained living with the wife in the premises at Town C, and the wife, thereafter and to date, solely cared for the child and paid the household expenses for herself and the child. Post separation the wife received Jobseeker payments from Centrelink in the sum of about $354 per week. The husband, post separation, paid no formal child support however he did continue to make the mortgage repayments for the above premises, and paid utilities, Strata levies and motor vehicle expenses on behalf of the parties. Since separation the husband has lived in rented premises.
As to superannuation, as at cohabitation commencement the husband had superannuation of about $100,000. As at separation, his superannuation balance was about $310,625. His superannuation balance is now $442,318. It is likely that the wife indirectly contributed to the accumulation of the husband’s superannuation after cohabitation commencement and up to the present time by reason of her homemaker and parent contributions (discussed above) which enabled the husband to earn income and thereby accumulate superannuation.
At cohabitation commencement, the wife probably had superannuation in the sum of about $5,000 noting that she was not in paid employment during the relationship and her superannuation balance is now $5,876.
The husband contended that his contributions should be assessed at 70 per cent, with the wife’s contributions assessed at 30 per cent.
The wife contended that the Court should find that the parties’ contributions were equal.
Taking into account all the above discussed matters, and viewing the parties’ contributions holistically, the Court finds that the parties’ contributions to non-superannuation assets should be assessed at 62.5 per cent to the husband and 37.5 per cent to the wife resulting in a disparity of $154,524.
SECTION 90SF(3) OF THE ACT
The wife is aged 39 years. The husband is aged 52 years and will turn 53 years in 2024.
The total length of the parties’ relationship was over 13 years. There was 1 child of the relationship, X. X remains living with the wife and the wife cares for her. X does not spend regular time with the husband. The Court observes that X will turn 18 years in 2025.
The husband has not paid formal child support since separation. He does pay the mortgage loan, utilities and motor vehicle expenses.
The wife contended that she will need to rehouse herself and X when the Town C property is sold.
The husband’s Financial Statement filed 18 January 2024 states that he receives $2,505 in wages before tax. He remains employed as a public servant.
The husband suffered serious injuries in an accident in 2012. He was declared fit for light duties in about 2018.
The wife does not work in paid employment. She receives Jobseeker benefits in the sum of about $354 per week. She has not worked in paid employment since about 2005 when she was working as a professional. Accordingly, the wife has been out of the workforce for over 18 years. In 2005 she suffered injuries after an accident. In 2006 she suffered further injuries. The wife believes that as a result of these injuries she is unable to work although the Court observes that there is no supportive medical evidence in that regard. The wife received compensation payments for a period after these injuries which stopped in 2012. The Court observes that the husband, in his affidavit, asserts that the wife, during the relationship, often had pain and was unable to assist or carry out homemaker tasks. The husband asserts that he is aware that the wife experienced a couple of accidents that aggravated her injury. The Court would assess that the wife may well have a modest work capacity in at least part-time employment but she may need to retrain in some employment field to enable her to re-enter the workforce.
Despite the husband’s injuries and related disabilities relating to his accident in 2012, he continues to be employed as a public servant on light duties earning $2,505 gross per week and clearly has a greater income earning capacity compared to the wife. There is no significant medical evidence indicating that the husband will likely have to retire prematurely. In any event Exhibit E, the husband’s Super Fund 1 statement issued in late 2020, indicates that he has not insignificant TPD cover.
The Court takes into account the husband’s significantly greater financial resource namely his superannuation entitlement being presently $442,318 compared to the wife’s superannuation entitlement of $5,876.
The wife contended that she should obtain an adjustment in her favour of 10 per cent under s 90SF(3), by reason of her need to rehouse herself and X, her care of X until X turns 18 years, the fact that she is not working in paid employment, she may well need to re-train to enable herself to enter the workforce, and she has no significant financial resources.
The husband contended that there should be an adjustment in the wife’s favour under s 90SF(3) of 2.5 per cent by reason of her care of X until X turns 18 years. He contended that it would be open to the Court to allow a 5 per cent adjustment in this regard.
Taking into account the above discussed matters, there should be an adjustment in favour of the wife of 10 per cent. This results in an adjusted contributions finding in favour of the husband of 52.5 per cent and 47.5 per cent to the wife, with the resulting disparity being $30,904 in the husband’s favour.
JUSTICE AND EQUITY
The husband’s 52.5 per cent of the net property pool ($618,095) is $324,499.
The wife’s 47.5 per cent of the net property pool ($618,095) is $293,595.
It is common ground that the property at Town C should be sold. The net equity in this property is $123,994. The husband’s debts (excluding the mortgage), which entered the final balance sheet, are $80,261, and they will need to be paid from the sale proceeds of this property. Thus the final net sale proceeds are $43,733 (subject to sale related expenses of this property).
Should the husband retain:
(a)Motor Vehicle 1: $85,000;
(b)Cash in bank: $68;
(c)Superannuation (after a superannuation split) being 52.5 per cent of $442,318: $232,216;
Being a total of $317,284,
Then he will need to receive a further $7,215 ($324,499 less $317,284). Ideally this amount of $7,215 can be paid from the final net sale proceeds of Town C.
Should the wife retain:
(a)Her superannuation interest: $5,876;
(b)A superannuation split in her favour (being 47.5 per cent of $442,318): $210,101;
(c)Motor Vehicle 2: $41,100;
Being a total of $257,077,
Then she will need to receive $36,518 ($293,595 less $257,077). Ideally this amount of $36,518 can be paid from the final net sale proceeds of Town C.
In view of the above, the husband will retain his motor vehicle, cash of $7,283, and superannuation of $232,216.
In view of the above, the wife will retain her motor vehicle (which the Court finds the wife will reasonably need), cash of $36,518, and superannuation of $215,977.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes Orders accordingly.
WIFE’S SPOUSAL MAINTENANCE APPLICATIONS
The wife, in her Amended Response filed 13 October 2023, seeks, in proposed Order 5, an order that the husband pay to her the sum of $4,400 by way of lump sum spousal maintenance. In proposed Order 7, she seeks a further order that the husband pay to her the sum of $385 per week by way of spousal maintenance for a period of 18 months. These proposed orders are opposed by the husband.
Section 90SE(1) of the Act provides:
(1)After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division.
The geographical requirement in s 90SD is satisfied because both parties were ordinarily resident in a participating jurisdiction, namely NSW, when the wife’s application for the spousal maintenance orders were made. Section 90SB of the Act is satisfied because the parties’ de facto relationship was greater than two years and there is a child of that relationship.
The wife has adduced no relevant evidence relating to her proposed Order for lump sum maintenance in the sum of $4,400 and such Order will not be made.
As to the wife’s proposed order that the husband pay to her the sum of $385 per week by way of spousal maintenance for a period of 18 months, the Court accepts that the wife has a need for such maintenance. Her current income is $354 per week from Centrelink with the husband paying no formal child support, and her weekly expenditure is about $400 for herself and $330 for X (see her Financial Statement in Part N). The wife’s ability to obtain gainful employment within the next 18 months is probably unlikely and the Court refers to its Reasons above relating to the wife’s work capacity.
However, the husband’s capacity to pay significant spousal maintenance is probably limited at present. His Financial Statement indicates his gross weekly income is $2,505. His weekly personal expenditure, following the property at Town C being sold and his personal debts being paid, by reference to his Financial Statement and his evidence that he will have to rent premises for at least $700 per week, is likely to be about $2,473 per week. This leaves an excess of income over personal expenditure of only some $32 per week. It will be proper to make a spousal maintenance order in this sum for a period of 18 months.
The Court is cognisant of the fact that a spousal maintenance order of only $32 per week is very modest indeed. However, the Court is bound by the evidence and the manner in which each side conducted their case at trial. The wife may consider making a formal child support application and/or seeking increased Centrelink benefits. The Court observes that as a result of the above property adjustment Orders, she will have cash funds of about $36,518.
The Court will make a spousal maintenance order in the sum of $32 per week for 18 months.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Deputy Associate:
Dated: 5 February 2024
0
5
1