HARRIS & ISENGA

[2014] FamCA 810

FAMILY COURT OF AUSTRALIA

HARRIS & ISENGA [2014] FamCA 810

FAMILY LAW – SPOUSAL MAINTENANCE – Where application is made by the wife in circumstances where she has employment – Where wife’s income exceeds her expenses – Threshold test for spousal maintenance not met.

Family Law Act 1975 (Cth)

APPLICANT: Ms Harris

RESPONDENT: Mr Isenga

FILE NUMBER: MLC 5071 of 2014

DATE DELIVERED: 24 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 2 September 2014

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Smith

SOLICITOR FOR THE RESPONDENT: McDonald Lawyers

Orders

1.That until further order the husband pay or cause to be paid the sum of $500 per week to the Westpac Bank in relation to the mortgage liability secured over the title to the property at C Street, Suburb B, Victoria.

2.That paragraphs 1-7 inclusive of the wife’s interim orders sought in her Amended Initiating Application filed 13 August 2014 be otherwise dismissed.

3.That paragraphs 2 and 3 of the interim orders sought in the husband’s response to Initiating Application filed 1 August 2014 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Isenga 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 MELBOURNE

FILE NUMBER: MLC 5071 of 2014

Ms Harris

Applicant

And

Mr Isenga

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 2 September 2014 in a Judicial Duty List the wife sought orders that the husband pay to her periodic maintenance in the sum of $1,739 per week.  That application is opposed by the husband.

2. In addition to the orders with respect to spousal maintenance, the wife also sought injunctive relief, orders for disclosure, valuation of matrimonial assets and the dispensing of the requirement that the parties attend for a conciliation conference.  Those matters were resolved between the parties, and orders were made by consent addressing those issues. 

MATERIAL RELIED UPON

1. The wife relied upon the following material:-

   ·Amended Initiating Application filed 13 August 2014;

   ·Affidavit of the wife filed 18 July 2014;

   ·Affidavit of the wife filed 13 August 2014;

   ·Amended financial statement of the wife filed 13 August 2014.

2. In support of his response, the husband relied upon the following material:-

   ·Response to Initiating Application filed 1 August 2014;

   ·Amended financial statement filed 28 August 2014;

   ·Affidavit of the husband filed 1 August 2014.

3. The wife’s application was originally listed before the Senior Registrar on 1 August 2014.  That day, the Senior Registrar made procedural orders for the filing of further material and the matter was otherwise listed for hearing in the Judicial Duty List on 2 September 2014.  The orders sought by the wife at the hearing were as follows:-

   2.        Spousal maintenance as follows:-

   $711 per week towards the mortgage repayments ($500 now being paid plus $211 additional)

   $252 per week for living expenses

   $776 per week for salary staying –at-home mum (sic)

   Total spousal maintenance $1,739 per week.

4. The husband sought that the wife’s application with respect to spousal maintenance be dismissed. 

5. The matter was conducted on the papers.  Each party relied upon the material referred to above as well as their oral submissions.  The onus of proof lies with the applicant, in this case the wife, and the standard of proof is the balance of probabilities.  However, given the nature of the hearing, contentious facts cannot be determined without the evidence being property tested.  Accordingly, in determining the matter, I have relied only upon those facts which are agreed between the parties or not in issue.

6. The wife represented herself at the hearing.  At the commencement of the hearing I informed the wife as to the manner in which the proceedings would be conducted, that she would have the opportunity to make submissions in support of her application, that counsel for the respondent would make submissions on behalf of his client in response, and that she would have a right of reply at the conclusion of those submissions.  I informed the wife that the matter would proceed “on the papers” and that her submissions should be directed towards the facts or matters, as set out in her affidavits, and the law upon which she relied and which supported the orders she sought.

7. Prior to the commencement of the hearing I provided the wife with the opportunity to attend upon the duty lawyer present at Court.  The matter was stood down for approximately 30 minutes to enable the wife to attend upon the duty lawyer.   Notwithstanding that the matter was stood-down for that purpose, I was informed by the wife at the commencement of the hearing that she had in fact elected not to attend upon the duty lawyer. 

BACKGROUND

1. The wife is aged 42 years and lives in the former matrimonial home at Suburb B.  She is engaged in part-time employment as a care worker.  Her income from that employment, as set out in her Amended Financial Statement, is approximately $776 per week.  In addition, she receives family tax benefit of approximately $325 per week.  It was common ground between the parties that in addition to her income and benefit, the husband contributes the sum of $500 per week towards the mortgage liability secured over the title to the Suburb B property.

2. The husband is aged 43 years.  He is a company executive and conducts two businesses, being allied healthcare centres and an education business.  In his financial statement filed 28 August 2014 the husband discloses an income of $1,478 per week. 

3. The parties married in May 1998 and final separation occurred on 1 January 2013.  They were divorced in September 2014. 

4. There are three children of the marriage, T aged 13, Y aged 10 and K aged five years.  The children live with the wife. 

5. The husband in his response to Initiating Application has sought parenting orders, including interim parenting orders.  That application has been listed for hearing in the Senior Registrar’s Duty List on 4 December 2014.

THE LAW

1. The statutory provisions relating to spousal maintenance are set out at ss 72, 74 and 75(2) of the Family Law Act 1975 (Cth) (“the Act”). The first issue for the Court’s determination is whether the applicant has crossed the threshold and established a need for maintenance, that is that she is “unable to support herself adequately” (see Bevan & Bevan (1995) FLC 92-600 and Mitchell & Mitchell (1995) FLC 92-601).

2. The liability of the husband to pay spousal maintenance depends upon the need of the wife for it, and the ability of the husband to pay.  There can be no liability to pay spousal maintenance unless the wife is unable to support herself adequately.  If that inability cannot be established then an order for maintenance cannot be made.

3. The wife has permanent part-time employment from which she generates an income of $776 per week.  Such a circumstance is rarely seen in applicants for spousal maintenance.  During her oral submissions the wife confirmed that that is her current position. 

4. During her submissions the wife confirmed that she sought spousal maintenance to enable her to cease her employment.  The wife’s desire to cease employment was based on two factors:-

   (a)The wife has an injury to her elbow and this is compromising her ability to work.

   (b)The parties’ youngest child has commenced Prep this year.  The wife deposes in her affidavit filed 13 August 2014 that that child “is far behind her peers and has special needs” and the wife seeks the opportunity to spend more time with her at home to support her.

5. In support of her submissions with respect to her incapacity to continue working, the wife tendered a letter from D Pty Ltd dated 5 June 2014 regarding her claim for Workers’ Compensation (Exhibit A1).  At page 2 of that letter it was confirmed as follows:-

   Dr [E] is of the opinion that you are suffering from a right lateral epicondylitis.  This is a new injury and the incident you described is sufficient to have caused such an injury.

   Therefore, [D Pty Ltd] has determined that you are entitled to compensation in the form of weekly payments and medical and like expenses for your right elbow injury only.

6. Hence it is clear from Exhibit A1 that the wife has an entitlement to ongoing income by way of weekly workers’ compensation payments as a result of her elbow injury.  I am satisfied that the wife’s income will continue notwithstanding her concerns about her elbow injury. 

7. In exercising jurisdiction pursuant to s 74 of the Act, the Court must take into account the matters referred to in s 75(2) of the Act. Section 75(2)(f) requires the Court to take into account the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth.

8. Section 75(3) of the Act provides that in exercising its jurisdiction under s 74 the Court shall disregard any entitlement of the party whose maintenance is under consideration to an income-tested pension, allowance or benefit. Hence for the purposes of assessing the wife’s income I am required to disregard the Family Tax Benefits received by her. Accordingly, for the purposes of determining the wife’s application I am satisfied that her income is $776 per week.

9. The wife sets out her personal expenses at Part G of her amended financial statement.  Those expenses total the sum of $2,526 per week.  However, the wife has included in her Part G expenses the sum of $500 in relation to the mortgage on Suburb B which she concedes and the husband agrees will continue to be met by the husband.  In light of that concession, I am satisfied that that sum should be deducted from the wife’s claimed expenses.

10. Further, the wife includes child-related expenses totalling $1,256 as part of her personal expenses.  Those child-related expenses are identified at Part N of her amended financial statement.  As such, they should be deducted from her claimed personal expenditure.

11. Upon making those deductions from the wife’s claimed expenses, her total personal expenses are approximately $770 per week.  Hence it would appear that the wife has a surplus of $6 per week.  Accordingly, the wife on her own material filed in support of her application does not make out her application for spousal maintenance beyond that which is already paid by the husband in relation to the mortgage liability.

12. It was submitted on behalf of the husband that the wife has not made full disclosure in relation to her income.  It was alleged by the husband that the wife receives income from boarders living at her home.  In reply, the wife conceded that one or two boarders reside in her home at any given period.  Those boarders each pay $190 per week for their board, but this sum is paid to the wife’s parents who live with her and support and assist the boarders.  The wife denied the allegation made by the husband as to the extent of the income received from the boarders.  In circumstances where the evidence has not been tested I am unable to make any findings in relation to this matter.

13. Given that I am satisfied that the wife does not establish a need for maintenance I am not required to consider the second limb of any maintenance application, that is whether the husband has the ability to pay maintenance. 

14. Nonetheless I note that the husband denied that he has the capacity to pay maintenance beyond the mortgage payments which he is currently paying and proposes to continue to pay. 

15. In his financial statement filed 28 August 2014 the husband disclosed an income of $1,478 per week.  The wife challenged that income and submitted that based on her experience working in the husband’s businesses, his income far exceeds that which is disclosed in his financial statement.  However, in circumstances where the evidence has not been tested and the wife produces no other evidence to support her allegation, I am unable to make any findings with respect to this matter.

16. At Part G of his amended financial statement the husband discloses expenses totalling $2,259.12 per week.  Hence on the face of that document, the husband’s expenses exceed his income by approximately $781 per week.  No explanation was provided by counsel for the husband as to how the husband continues to meet his weekly expenses.

17. Based on the husband’s evidence, I am satisfied that he does not currently have a capacity to meet any claim for maintenance by the wife even if she were able to establish such claim.

18. However, in circumstances where the husband through his counsel concedes firstly that he has been paying the sum of $500 per week towards the mortgage liability secured over the title to the Suburb B property and secondly, that he proposes to continue to meet that payment, I am satisfied that it is appropriate in the circumstances that there be an order to that effect.  Accordingly, I will make orders as follows:-

    1.That until further order the husband pay or cause to be paid the sum of $500 per week to the Westpac Bank in relation to the mortgage liability secured over the title to the property at C Street, Suburb B, Victoria.

    2.That paragraphs 1-7 inclusive of the wife’s interim orders sought in her Amended Initiating Application filed 13 August 2014 be otherwise dismissed.

    3.That paragraphs 2 and 3 of the interim orders sought in the husband’s response to Initiating Application filed 1 August 2014 be otherwise dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 24 September 2014

Associate: 

Date:  24 September 2014