Halie and Halie

[2012] FamCA 522

FAMILY COURT OF AUSTRALIA

HALIE & HALIE [2012] FamCA 522

FAMILY LAW - PROPERTY – EX TEMPORE INTERIM ORDERS - SPOUSAL MAINTENANCE – Where parties sought urgent Orders under section 77 of the Family Law Act 1975 (Cth) – Where the Court determined Maintenance pursuant to section 72 of the Family Law Act 1975 (Cth) – Where the needs of the Wife and the capacity of the Husband to pay warranted payment of Spousal Maintenance

Family Law Act 1975 (Cth) ss 72, 75 and 77

Ashton and Ashton (1982) FLC 91-285
Mitchell and Mitchell (1995) FLC92-601
W and W (1980) FLC 90-872

APPLICANT: Ms Halie

RESPONDENT: Mr Halie

FILE NUMBER: NCC 1513 of 2011

DATE DELIVERED: 25 June 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 21 September 2011  

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Olsen of Boyd Olsen for the Wife

SOLICITOR FOR THE RESPONDENT: Mr Fox of Attwaters for the Husband

Orders

1. That pending further Order of the Court, the husband pay to the wife the sum of $500.00 per week by way of spouse maintenance, commencing on Friday 29 June 2012 and each Friday thereafter, payable to an account nominated in writing by the wife to the husband.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Halie & Halie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1513 of 2011

Mr Halie

Applicant

And

Ms Halie

Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife, filed 20 June 2011 for urgent spousal maintenance pursuant to section 77 of the Family Law Act 1975 (Cth) (“the Act”). The respondent is Mr Halie, the husband. His response was filed on 21 July 2011. The husband sought dismissal of the wife’s application.

2. The parties began living together in late 2006, married in September 2007, and separated on 10 April 2011.  Accordingly, there was a relationship of about four and a half years in total.  The parties have one child C (“the child”), born in October 2008, now almost four years old.

3. The matter came before the Court on 27 July 2011.  On that day, an order was made by consent and without admissions by the husband as follows:

   (1)The husband to pay to the wife within seven days of the date hereof the sum of $1200, the characterisation of such sum as either spousal maintenance or on account of property settlement be a matter for determination at the final hearing of the matter.

4. The application of the wife for spousal maintenance was otherwise adjourned to a date after the date appointed for a financial conference in September 2011.  The parties attended that conference and were unable to reach any resolution of their financial dispute.  The matter came back before the Court on 21 September 2011.  The wife continued to press for urgent interim spousal maintenance.  At the conclusion of a short hearing, there was a direction for written submissions.  Those submissions were provided in a timely way.  Thereafter, there was a delay attributable to the Court and not to the parties or their lawyers.

5. On 31 May 2012, the matter was listed by the Court to give the parties the opportunity to provide information relating to any change in the parties’ circumstances in the intervening period.  A change of circumstances for the husband was asserted by the wife, but there was no consensus about putting any further material before the Court.  No material on an agreed basis or at all has been received.  Accordingly, I have determined the matter on the documents relied on in September 2011.  They are as follows:

   a)Interim order sought in the initiating application of the wife filed 20 June 2011;

   b)Response filed by the husband, 21 July 2011;

   c)Two affidavits by the wife filed 20 June 2011 and 21 September 2011;

   d)Two financial statements by the wife filed 20 June 2011 and 21 September 2011;

   e)Affidavit of the husband filed 21 July 2011;

   f)Financial statement of the husband filed 21 July 2011;

   g)Submissions on behalf of the applicant wife received 25 September 2011; and

   h)Submissions for the respondent husband filed 27 September 2011.

The application

1. The wife sought an order for the payment of $750 per week by way of spousal maintenance and the return to her of the Volkswagen motor vehicle registered in the name of the husband, unencumbered.  This is a vehicle that the wife had used during the course of the marriage.  The payment of $1200 pursuant  to the July Consent Order was made on 4 August 2011.

2. By 21 September 2011, when the matter came back before the Court, the financial circumstances of the parties had changed.  There had been a child support assessment for payment by the husband in respect of the child.  The wife had successfully applied for a parenting benefit and family tax benefit.  The wife had received a tax refund of $2548.  However, the application for spousal maintenance was pressed as urgent, although no longer on the most urgent basis.

The law

1. Section 77 allows a very wide discretion to the court in urgent circumstances. The application of section 77 of the Act is limited to circumstances, where there is very little information available to the Court and there is dire need of urgent maintenance. However, given the material before the Court relating to financial circumstances of the parties the correct approach is to deal with the Order in the ordinary way pursuant to section 72 of the Act (see Ashton and Ashton (1982) FLC 91-285 at 77,613–77,614).

2. Section 72 of the Act sets out the matters which give rise to spousal maintenance in the ordinary way. Section 72 says this:

   A party to a marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so if and only if that other party is unable to support herself or himself adequately, whether:

   (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)for any other adequate reason,

   having regard to any relevant matter referred to in section 72(2).

3. Effectively, this section imposes on spouses an obligation for mutual support. If the applicant is able to prove that she is unable to adequately support herself for reasons as defined or accepted by the Court, then the need for spousal maintenance is established. Once need is established, there is an inquiry into the means and reasonable needs of the respondent and the extent of his ability to contribute towards the support of the wife. If the husband is found to have sufficient means to contribute to the support of the wife, then the ability to pay is established. The factors set out in section 75(2) are guidelines for analysing those two aspects, namely, need and capacity to pay.

Needs of the wife

1. The wife has the following income on a weekly basis:

   a)gross salary:  $356;

   b)parenting payment:  $208;

   c)family tax benefit:  $96.32;

   d)child support:  $282,

   a total of $942.32.  The receipt of Commonwealth benefits is irrelevant to the question of whether the wife is unable to support herself adequately.  Accordingly, the wife has income of $638 inclusive of child support.  The wife is 34 years of age and in good health.  She has an undetermined entitlement to matrimonial assets. 

2. She has the physical and mental capacity for gainful employment and is employed at $356 gross per week in permanent casual work.

3. She has the care and control of one child, who is almost four and attends pre-school.

4. She has a commitment to support herself and the parties’ child.  She has weekly expenses which I accept as necessary at $485 per week minimum.  However, this figure is artificially low.  The wife lives with her parents in Newcastle, who provide rent‑free accommodation for her.  The wife is planning to live independently in a rental property at around $380 per week.  It is reasonable for her to do so.  I accept that the wife is indebted to her parents, but is not repaying loans to them at this time at the figure suggested.  I accept that when the wife lives independently the figure of $45 to $65 per week for utility costs will be payable.

5. The wife is eligible for and receives Centrelink benefits, being a parenting payment and a tax benefit.  These figures are excluded from consideration of needs, but may be included for consideration of the payment to be made by the respondent.  The wife has an interest in superannuation in the sum of $17,176. 

6. The wife has lived with her parents to maintain a reasonable standard of living for herself and for the child.

7. The wife wishes to purchase a replacement motor vehicle, the husband having retained and disposed of the Volkswagen vehicle used by her during the marriage.  I accept there will be repayments on a loan for the purchase of a new vehicle, and that the sum of $50 and running costs of $30 per week as asserted by the wife are reasonable. 

8. The wife gave up lucrative employment at the request of the husband during the marriage.  When the parties’ child was 11 months old, the wife returned to work on a part‑time basis.  Her parents gave unpaid assistance by caring for the child at those times when she was working.  The wife wishes to continue her role as a parent, combining work and care of the child.  Part of her income is applied to preschool fees.

9. The parties are yet to finalise the division of their matrimonial property.  The husband pays child support of $282 per week.  Having considered the factors set out above, I find that the wife has established a need for spousal maintenance at the rate of not less than $500 per week.  The husband, in his financial estimate, estimated his income at $3995 per week, approximately $207,000 gross per year.  However, the husband more recently deposed to a reduction in his gross salary in his affidavit. 

10. Despite this, I accept the submission on behalf of the wife that, in fact, the husband’s income continues at the same or a higher level.  The husband conceded in his oral evidence that his year to date gross income was then $45,491.38 for the period 1 July 2011 to 15 September 2011.  This would amount to an annual gross income of $215,000 per annum plus.

factors Under Section 75(2) of the Act

1. The husband is aged 31 years.  He suffers from insulin dependent diabetes which he manages effectively.  He is otherwise well.  The husband has a high level of income, has assets, and a physical and mental capacity for gainful employment.  The husband has two children, the child of this marriage, and a six year old child from an earlier marriage.  The husband does not have the full‑time care of his two children, but has financial obligations to contribute to their care at the rate of $480 per week in total for both children.  The husband does not support any other person.

2. The husband enjoys a good standard of living.

3. The wife contributed to the earning capacity of the husband by being available to care for the child herself or otherwise arranging for her parents to care for the child.  The wife worked full time and later part time during the marriage.

4. The husband has worked full time in a job with demanding shifts and long hours. 

5. The husband wishes to continue in his role as parent, spending regular time with his children.

6. At the time of hearing, the husband was not living with another person.  The parties have not resolved the division of their property.  The husband runs a motor vehicle which he uses to transport himself and the child.

7. The husband owns a house property in Newcastle.  He borrowed $460,000 from the Bank of Queensland and $100,000 from his parents for this purchase.  He makes weekly mortgage payments of $880.  These two loans have both been reduced.  He also makes loan repayments for a motor vehicle at $450 per week.  That loan had been reduced to $31,000.  In addition to reasonable claims for personal tax, rates relating to his property and various insurances, the husband claims $1211 per week in personal expenses.  I consider the following items to have been successfully challenged in that regard: 

   a)for food at $400 and household supplies at $60, reduced to $300 and $30 respectively; 

   b)for children’s activities at $100 per week reduced to $44 per week, based on the wife’s expenditure for children’s activities for one child at $22; 

   c)hobbies for the husband and the children at $60 per week each, $120 a week in total, reduced to nil.  This is discretionary spending which does not take priority over the need to support the wife;

   d)hairdressing and toiletries at $60 per week, reduced to $25 per week;

   e)holidays at $40 a week reduced to nil, the husband’s evidence being that he does not take holidays;

   f)books and magazines for the husband and children at $40 per week, reduced to $20 a week, such items being discretionary spending which do not take priority over the need for support for the wife.

8. Accordingly, I consider the total of the claimed expenses could be reasonably reduced by $400 to $800 per week.  Further, the husband has chosen to purchase a property of a certain size and style for himself.  Each of the parties is entitled to live at a reasonable level (see Mitchell and Mitchell (1995) FLC 92-601 at 81,995-81,996; W and W (1980) FLC 90-872 at p 75,528), in particular it is reasonable for the wife to live independently with the parties’ child in rented accommodation in the way she plans to do. The husband, in my view, has the capacity to refinance his home mortgage and credit union debts in relation to his car over a longer term, given his age and income, to release at least an additional sum of $100 per week.

9. Accordingly, the husband has the capacity to pay spousal maintenance in the sum of $500 per week.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 25 June 2012.

Associate:     

Date:              9 July 2012