Hastings and Tomas

[2018] FCCA 1670

FEDERAL CIRCUIT COURT OF AUSTRALIA

HASTINGS & TOMAS [2018] FCCA 1670

Catchwords:
FAMILY LAW – Spousal maintenance – where the mother is dependent on Commonwealth support – where the father is unemployed – where there are undisclosed earnings – where the father is capable of earning a considerable income – where the father intends to leave the country – where the mother has not applied for a child support assessment – maintenance awarded to the mother.

Legislation:

Family Law Act 1975 (Cth), ss.90F, 90SE, 90SF

Applicant: MS HASTINGS

Respondent: MR TOMAS

File Number: DNC 212 of 2017

Judgment of: Judge Young

Hearing date: 8 June 2018

Date of Last Submission: 8 June 2018

Delivered at: Darwin

Delivered on: 8 June 2018

REPRESENTATION

Counsel for the Applicant: Ms MacCarron

Solicitors for the Applicant: Northern Territory Legal Aid Commission

Counsel for the Respondent: In person

ORDERS

1. The Respondent pay to the Applicant maintenance at the rate of $150 per week, the first payment thereof to be made on 22 June 2018.

2. For the purpose of Order 1, the Respondent will pay maintenance each Friday thereafter by transferring spousal maintenance to the Applicant’s Bank account: Ms Hastings: Account Number: until the child [X] born 2015 is of school age on 2020.

3. The Respondent is not required to pay any further maintenance to support the Applicant’s study.

IT IS NOTED that publication of this judgment under the pseudonym Hastings & Tomas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 212 of 2017

MS HASTINGS

Applicant

And

MR TOMAS

Respondent

REASONS FOR JUDGMENT

Ex - Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for spouse maintenance under section 90SE of the Family Law Act. The background is that the applicant mother and the respondent father apparently knew each other from (country omitted) and in 2014 the mother moved to Australia and began living with the applicant.

3. In 2015 a child, [X], was born.  He is thus little more than three years old at the moment.  The parties separated in March 2017. 

4. The mother is dependent on Centrelink benefits and receives an income from Centrelink payments of about $662 a week.  She incurs childcare expenses of about – over two days a week $40 – a week while she learns English.  She is undertaking a (qualifications omitted) – or, at least, she hopes to obtain a (qualifications omitted) by the end of term 1, 2020; that is, in about another two years. 

5. She seeks spousal maintenance at a rate of $237 a week till then.  She then seeks spousal maintenance for a further three years at the rate of $351 a week to the end of term 1, 2023 in order, she says, to complete a (qualifications omitted) and thereby increase her earning capacity.  A curious aspect of this matter is that the mother has not sought a child support assessment, apparently because she has been excused from that requirement under the relevant social welfare legislation because of a domestic violence exemption. 

6. Her affidavit and the submissions of her counsel suggest that the primary reason for seeking that exemption was that she was concerned about budgeting, that is, if the father did not pay a child support assessment and later enforcement proceedings recovered a lump sum, for example, she would be then obliged to make some repayment to Centrelink.  This reason does not appear to me to be within the spirit of the exemption. 

7. I am satisfied that under section 90SF of the Act the mother is unable to adequately support herself by reason of having care and control of a child under 18. In applying the principles in section 90SF the matters to be taken into account are set out in subsection 90SF (3). One of those considerations is (q) and, that is, any child support assessment for a child the payer might be liable to provide in future for the child. As I’ve said, while no child support assessment has been sought, it could be sought tomorrow and I see no reason why it would not or could not.

8. The father’s position is not entirely clear.  He filed a financial statement on 28 February 2018 saying he earned about $1500 a week.  He said in evidence that he works – or has worked – as a (occupation omitted) in the (employment omitted) industry.  In cross-examination he said for the first time that he had not worked for the last one and a half months due to a downturn in the (employment omitted) industry.  He said, however, that he had an interview for work next Monday.  The father’s credibility was put in question by his assertion about his income.  An examination of his bank records was not consistent with his claim that he was always paid by cheque. 

9. Questioned about that he said that he received some cash.  He said, nevertheless, that all of his work was recorded in an invoice book.  After the matter was stood down so he could bring that book to court, the book was examined.  It showed invoices totalling about $48,000 over the past two years or over a two year period.  I am satisfied that the father must have received significant cash payments which have not been disclosed, accounting for the discrepancy between the amount of his earnings in his invoice book - $48,000 over two years or about $24,000 a year, and his claimed income of $75,000 a year. 

10. In fact I have no real idea of his earnings.  The father says that he proposes to stop work. Indeed, he says that he has ceased work at the moment due to lack of work, and will return to (country omitted) in 2018.  The primary reason for this appears to be that he met a lady from (country omitted) online last year.  He travelled to (country omitted) in of this year where he met this lady for the first time.  He said he was then married to her in a civil ceremony in (country omitted). He says that she cannot obtain a visa for Australia and it will be easier for her to obtain a visa to (country omitted). 

11. The father spent considerable money last year travelling to (country omitted) on two occasions and, it appears, to (country omitted) on one occasion earlier this year.  The father also has an unpaid liability pursuant to an earlier interim or urgent spouse maintenance order and it has been asserted that he will not be able to leave Australia without this being paid.  The debt is about $2,000.  Whether that is so, I do not know.  However, I am satisfied that the future is uncertain for the father.  He said he will seek employment in (country omitted) and had, indeed, obtained an agreement from a prospective employer in (country omitted) to employ him but this was delayed to an extension of a supervision order in Australia. 

12. As I understand it, he was imprisoned for a breach of a domestic violence order and also in relation to some drug offences.  The fact is he remains under supervision, as I understand it.  The father said he supports a child from a previous relationship who is 16 or 17 years old and who lives in (country omitted).  He says that he pays $900 month to support her.  There was no evidence to support that other than evidence of two payments made in August and September 2017 totalling about $1,200. 

13. He also says he pays about $350 a month for rent for accommodation for his wife in (country omitted).  He says he now has savings of about $4,000.  I consider that it is up to the father to make an appropriate application to the court supported by evidence if he says that he currently has no means and his past admitted income of $75,000 a year will not be the case in future.  He is currently living with his parents and apparently they are paying the rent on the accommodation. 

14. I consider that I should proceed on the basis that the father is capable of earning a considerable income, certainly in the order of the income he has received in the past, and that his departure for (country omitted) is uncertain.  He said in evidence that he had not actually bought tickets.  On the other hand, I am satisfied that the wife is entitled to a child support assessment at any time and might obtain an assessment at any time. 

15. I do not accept that her seeking an exemption for domestic violence is for any reason other than that she does not wish to repay Centrelink if there is a recovery made by Centrelink.  I am satisfied that there is very great uncertainty about the future financial position of both parents.  I propose to make an order, however, while taking into account possibilities based on past history, not overlooking the fact that past history may change or what was the case in the past may change. 

16. I propose to make an order that the father pay spousal maintenance in the sum of $150 a week until [X] reaches school age on 2020.  In relation to the mother’s claim that there be a continuing payment so she may undertake further study, I am satisfied that that is too far in the future for me to act upon and, accordingly, I will not make the order about that she seeks. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 26 June 2018