I and I
[2000] FMCAfam 51
•19 October 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| I & I | [2000] FMCA fam 51 |
| SPOUSAL MAINTENANCE – Costs order |
| Applicant: | T N I |
| Respondent: | G J I |
| File No: | ZM 4034 of 2000 |
| Delivered on: | 19 October 2000 |
| Delivered at: | Melbourne |
| Hearing Date: | 13 October 2000 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Ramsey |
| Counsel for the Respondent: | Ms McNamee |
ORDERS
THAT the husband pay to the wife by way of spousal maintenance the sum of $100.00 per week less premiums necessary to maintain the term insurance referred to in order no. 7 of the orders made by consent on 13 October 2000.
THAT the husband pay the wife’s costs of and incidental to the husband’s Form 3 Application filed on 13 September 2000 and fixed in the sum of $1,934.00 by Registrar Wilson by order made on
28 September 2000.THAT there be a stay with respect to the above costs order such that the husband make payment of the said costs within sixty days of today’s date to the solicitors acting for the wife.
The said payment of spousal maintenance as referred to in order no. 1 herein continue for a period up to and including 20 March 2002.
THAT the wife within seven days notify the husband in writing of her becoming gainfully employed providing to the husband all details pertaining to her employment including hours worked, rate of pay and total weekly remuneration received by her. Further the wife provide notice to the husband in writing within seven days of her entering into a permanent de facto relationship and/or her re-marriage.
Certify for Counsel.
THAT otherwise all extant applications are dismissed and removed from the active pending cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM4034 of 2000
| T N I |
Applicant
And
| G J I |
Respondent
REASONS FOR JUDGMENT
Transfer
This matter came before the Federal Magistrates Court on 13 October 2000 having been transferred by the Family Court of Australia for the purpose of hearing and determining property proceedings between the parties together with the wife’s spousal maintenance application.
Orders by consent
Orders were made on 13 October 2000 as to the parties’ respective property applications. These orders were entered into by consent with the parties’ intention that as far as practicable the said orders would finally determine the financial (and other) relationships between them and avoid further proceedings between them save as to the question of the wife’s application for spousal maintenance which was to be determined by me.
Issue for determination
At the commencement of the proceedings the parties, having indicated that they had resolved the property issues between them, determined that the outstanding matters were one of spousal maintenance and the payment by the husband of the wife’s reserved costs on an earlier occasion.
Wife’s application
Specifically the wife sought the following:
a)That the husband pay to the wife by way of spousal maintenance the sum of $130.00 per week less premiums necessary to maintain the term insurance referred to in order no. 7 of the orders made by consent on 13 October 2000; and
b)That the husband pay the wife’s costs of and incidental to the husband’s Form 3 Application filed on 13 September 2000 and fixed in the sum of $1,934.00 by Registrar Wilson by order made on 28 September 2000.
Husband’s response
In his Response filed on 6 October 2000 the husband sought that an amount of 50 percent of the fortnightly payments of $240.00 made by the husband to the D F Credit Union be deemed to be payments of spousal maintenance by the husband to the wife and that otherwise the husband not be required to pay to the wife any further amount by way of spousal maintenance;. In the event that the court ordered a weekly payment of spousal maintenance then the wife to notify the husband in writing within seven (7) days of her being gainfully employed of all details pertaining to her employment including hours worked, rate of pay and total weekly remuneration received by her. Further, the husband sought a time limit be placed on any receipt of maintenance by the wife.
The husband opposed the payment by him of any costs incurred by the wife in relation to his Form 3 Application filed on 13 September 2000 but indicated in the event that such an order was to be made that he sought a stay for a period of time to enable him to obtain the necessary funds to pay the wife’s costs.
Preliminary matter
There was discrepancy between the parties and indeed discrepancy in the Child Support letters tendered in evidence as to the current child support liability of the husband. Accordingly I requested of the parties and they indicated their consent to the signing of an authority to enable me to obtain from the Child Support Agency a running sheet indicating the payment of the husband’s liability from the time the liability commenced until the date of hearing and it’s current assessed amount.
Background
The husband was born on 14 July 1966 and is now aged 34 years. The wife was born on 6 November 1971 and is now aged 28 years. The parties married in P F on 3 December 1988 and separation occurred on 23 May 1999. On 17 October 2000 I pronounced in court a decree nisi of dissolution of the marriage.
There are two children of the marriage namely S I born on 29 August 1987 who is aged 13 years and L I born on 1 December 1990 who is aged 9 years. Both children reside with the wife and have contact with their father as agreed. Orders providing for the children to reside with the wife were made on 20 March 2000 in the Family Court of Australia at Melbourne (sitting at Bendigo).
The wife is residing in T near P. The husband is re-locating from the Army barracks at P to the Army barracks in D on 15 October 2000 to continue his employment with the Army. The husband served in East Timor for approximately 4 months between February and June of this year.
Following separation the wife commenced to board with a mutual family friend by the name of J I and his children C, aged 15 years, and G, aged 12 years. The husband alleges that the wife and the said J I reside in a de facto relationship. The wife gave evidence denying this allegation. J I gave evidence denying this allegation. The wife is in receipt of social security payments and both she and the said J I gave evidence as to her financial contribution to their joint household. The basis of the husband’s assertion is what he alleges the children told him, namely that the mother and J I sleep together. The wife believes the children would not have told their father this, as it is not the case. Furthermore the husband gave evidence, as did the wife and J I, that the wife has a pool pass for herself and the children to use the provisions provided for the Army at P. The husband asserts such a pool pass is given only to a dependant. The wife and J I indicated that they did not know the basis of the issuing of the pool pass to the wife but I do not find on the basis of the expressed denials of the wife and J I that there does in fact exist a de facto relationship. Nor do I find that Mr I is providing financial support for the wife. I shall refer again to this matter hereunder.
Proceedings
The proceedings commenced by the wife’s filing of a Form 7 Application on 29 May 2000 seeking that there be an appropriate division of property and financial resources between the parties as is deemed just and equitable by this Honourable Court. The wife sought to be excused from providing more specific details until the husband made full financial disclosure. She then filed and relies upon the following:
a)Her Amended Form 7 Application filed 9 August 2000 wherein the wife sought that the husband pay to her the sum of $38,000.00 by way of property settlement and further that the husband pay to the wife spousal maintenance in the sum of $130.00 per week;
b)Her Affidavit sworn and filed on 26 September 2000 in response to the husband’s Form 8 Application filed on 13 September 2000;
c)Her Form 8A Response filed on 26 September 2000;
d)Her Financial Statement filed on 6 October 2000;
e)Affidavit of James I filed on 6 October 2000;
f)Order 30 Affidavit of the wife filed on 6 October 2000.
The husband relies on the following:
a)His Financial Statement filed the 26 July 2000;
b)Form 8 Application filed on 13 September 2000;
c)The Affidavit of the husband sworn on 7 September 2000 and filed on 13 September 2000;
d)Form 3A Response filed on 6 October 2000;
e)Affidavit of the husband filed on 6 October 2000;
f)Financial Statement of the husband filed on 6 October 2000.
The husband deposed in earlier proceedings that he was due to be discharged from the Australian Army on 28 October 2000. He expected to receive a Member Benefit Payment on 29 October 2000 of $38,880.30. Thereafter he expected to receive no additional superannuation or other benefit from the Army until he attained the age of 65 years when he expected to receive a superannuation payment of $96,302.08.
The husband deposed in his Affidavit filed on 13 September 2000 that he had decided to withdraw his claim for discharge from the Australian Army and proposed to continue his Army career for an indefinite number of years. Consequent upon that decision his Member Benefits Payment estimated at $38,880.00 was no longer to be paid to him.
In his Form 8 Application returnable on 28 September 2000 the husband sought that the wife’s Amended Application be struck out and in the alternative that the hearing date of 27 October 2000 be vacated on the basis that he desired all procedural matters to be fully put in order before the hearing.
On 28 September 2000 Registrar Wilson dismissed the husband’s application and ordered as contained in order no. 5:
“THAT the wife’s costs of and incidental to the husband’s Form 3 Application filed on 13 September 2000 be fixed in the sum of $1,924.00 and reserved to the trial judge”.
Registrar Wilson in fact bought the hearing date forward from
27 October 2000 to 13 October 2000 as the husband had indicated that he was re-locating to D to commence employment there on 16 October 2000. Furthermore Registrar Wilson was of the view that the matter could proceed in October in the defended list and required no further procedural orders.
The wife sought in her Form 8A Response of 26 September 2000 that the husband’s Application filed on 13 September 2000 be struck out and that he pay her costs in relation to the Application and hearing of 28 September 2000.
The husband’s Application was entirely unsuccessful. He put the wife to not inconsiderable cost and sought to delay the hearing of a spousal maintenance application by the wife. There was no real basis nor merit to his Application and it was misconceived. In particular, the intent of the 28 July 2000 orders of Mr Justice Frederico, framed to avoid unnecessary expenditure and delay given the small pool of assets available to the parties, was in part defeated by the husband’s actions.
Child support
Since the parties separated the husband has had a child support liability which commenced on 23 May 1999. In the period from 23 May 1999 to 30 June 1999, the husband’s monthly liability was $575.58. His child support liability from 1 July 1999 to 30 September 2000 was in the monthly sum of $538.83. Thereafter his monthly liability from 1 October 2000 to 31 December 2001 was in the sum of $503.41. There was disparity between the parties as to the husband’s current liability bought about perhaps by the recent lodgment by the husband of an “estimate” in relation to his income for the latest child support period. On
27 September 2000 he lodged an estimate indicating that his income was $25,217.00 replacing the earlier taxable income of $32,857.00. As a result of that “estimate” being lodged by him his monthly liability has been reduced to $331.50.Thus at the current time and as a consequence of the husband lodging an “estimate” the Child Support Agency has indicated that the husband’s monthly liability is $331.50 on an estimated income of $25,217.00. This is a significant reduction in the child support which he proposes to pay and is the monthly liability asserted by the wife in evidence.
In addition, the amount of $668.80 is outstanding as arrears although I accept that generally the husband has paid child support as assessed and that that has been by way of automatic deduction from his salary. I note there should be a reconciliation as to the husband’s arrears at the end of the month in any event and that the current amount overdue after expected salary deductions is $55.60. I make no adverse finding against the husband in relation to any arrears.
Findings of fact on disputed issues are made on the balance of probabilities. In these reasons statements of fact should be taken as findings of fact.
Evidence of wife
The wife’s evidence was that she was not in a de facto relationship with Mr J I and nor was she in a financially dependent relationship. Her evidence was that she contributed the sum of $50.00 per week by way of payment of board and paid one-half of her share of the utilities and food bills. In addition, she provided some transportation to and from activities for Mr I’s two children.
Her further evidence as to her capacity to be gainfully employed was that she currently works on a Monday as a cleaner and is in receipt of $36.00 per week. Her evidence was that she had not refused any cleaning jobs and that although she would be available between the hours of 9:00 am and 3:30 pm each of the remaining four days there was currently no work available to her. Her evidence was that there were plenty of people in front of her in the job queue with those people being possessed of more skills.
I accept the wife’s evidence that she is not living in a de facto relationship with Mr I and that he does not financially support her other than by subsidising her accommodation expenses. She gave a straight-forward account of her financial and accommodation circumstances as did Mr J I. I accept the wife’s evidence that she would work if same was available to her and accept her assurances that she would notify the husband if she were to be gainfully employed within seven (7) days of obtaining that employment. Indeed Mr J I’s evidence was that he drove the wife to places to lodge her curriculum vitae for the purposes of her current endeavours to obtain employment.
Mr J I will be in receipt of income of $35,000.00 per annum. I accept Mr J I’s evidence that he does not provide any financial assistance for T I, the wife, or claim any Army benefits or income tax benefits and the like for her. He does, however, assist her children with Army passes to the swimming pool and other Army based facilities. Furthermore he does not charge her a very high board due to her limited income and the fact that she does tend to do the housework and look after his two boys.
The wife left school during her mid-secondary schooling at the age of 15 when she was pregnant with the parties’ first child. Since the birth of the parties’ daughter, S, the wife has predominantly remained at home full-time caring for the two children. Her husband has spent considerable periods of time away from the home.
The wife in the last two years of the marriage was able to be employed by G.V. Cleaning on a part-time basis as a cleaner but I accept the wife’s evidence that that job is no longer available to her and has not been since the parties separated. The wife has no other skills which would allow her to easily re-enter the workforce at this stage. Furthermore she is responsible for the care of the children on a daily basis.
The marriage has affected the wife’s earning capacity in that she remained out of the workforce for many years and upon re-entering was able to do so on a part-time basis as a cleaner in receipt of about $10.00 an hour net with limited hours currently available to her.
The wife’s income
The wife will receive maintenance in the sum of $76.50 per week from the husband, income from her cleaning of $36.00 per week and is otherwise in receipt of Department of Social Security benefits. Her total expenses as contained in her Form 17 are in the sum of $614.00 each week. I accept her evidence as to her entertainment expenses covering both herself and the children on occasion and on other occasions herself alone and accept that her cleaning expense, which was the only other expense challenged, is in the sum of $40.00 per week, although that appeared an estimate on her part and her evidence was not entirely supportive of this level of expenditure. Even if that expenditure is reduced by $10.00 - $15.00 each week the wife still has expenses of $600.00 each week of which $90.00 relates to her children as well as some part of her accommodation and utilities expenses. Her expenses considerably exceed her income.
The wife has a motor vehicle being a 1977 Mazda with a value of approximately $300.00. The family car has been retained by the husband who also has the liability for the loan incurred in relation to its purchase. In addition the wife has minimal items of furniture and otherwise there was no property to divide between the parties at the cessation of their marriage.
The law
The Court is required by Section 74 of the Family Law Act 1975 (hereinafter referred to as “the Act”) to “make such order as it considers proper” once the threshold test of Section 72 is met.
Section 72 provides that:
“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…”.
The section then goes on to set out three circumstances which may cause the need for maintenance to arise:
“(a)By reason of having the care and control of the 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 subsection 75(2).”
The wife has to care for herself and the two children of the marriage with very limited financial means. The husband remains a Corporal in the Army and in receipt of regular income. The property settlement between the parties makes no capital sum immediately available to the wife. The property orders provide for a distribution of the husband’s superannuation and other work-related entitlements in the future which does not assist the wife in adequately providing for herself at the present time.
It is clear that the wife is unable to support herself adequately. The matters as referred to in subsection 75(2)(c)(g)(j)(k)(l)(n)(na) are also applicable to her.
The husband’s capacity to maintain the wife
The husband’s financial statement indicates that he has a gross weekly salary of $804.35. On 3 October 2000, he swore that his fixed expenditure included loan repayments to the D F Credit Union Ltd and the Public Service Benevolent Fund of $167.43 each week.
A D F Credit Union Ltd loan in the sum of $15,038.20 was taken out by the parties on 17 April 1998. The interest rate at the time was 14.9 per cent. As at 2 June 1999 the annual percentage rate was 12.9 per cent and the loan together with a further loan was transferred into the husband’s name solely with an amount then outstanding of $23,000.00 approximately. Those borrowing’s related in part to the consolidation of debt and approximately $10,000.00 of those borrowing’s were used for the purchase of the husband’s motor vehicle. This loan has now approximately $18,000.00 or $19,000.00 outstanding. The husband is paying a higher than required fortnightly repayment to the D F Credit Union given the reduction in the interest rate. What he is required to pay is $205.00 ie. $35.00 a fortnight less.
The husband received an amount of $125.00 per day for the period from 4 February to 24 June 2000 inclusive resulting in an additional payment to him of $17,750.00. The husband’s evidence is that he has disposed of these funds.
The husband’s evidence was that he incurred the additional Public Service Benevolent Fund debt at the commencement of this year which was many months post separation and it’s purpose was to pay his outstanding bills. He had however received a worker’s compensation payment of approximately $23,000.00 on 17 February 1999. He had withdrawn $7,500.00 and paid-out his Mastercard, AGC and Target card and on 11 March 1999 he had withdrawn a further $2,000.00. At the date of separation a further $8,000.00 was remaining of which the husband took $6,000.00 and the wife $2,000.00. The husband gave contradictory evidence saying he had paid his solicitor’s with some of those monies but subsequently swore that he had paid then with the East Timor funds. He produced a receipt from his solicitors in the sum of $3,150.00 indicating a payment to them on 9 March 2000. His earlier evidence was that he had paid them $5,000.00 and subsequently $4,500.00. He then conceded it was $3,150.00. What the husband has not done with either the $17,500.00 or $6,000.00 received by him is pay out the D F Credit Union Ltd loan. His evidence was unsatisfactory as to his disposal of these monies. He was evasive as to what precise bills he had accumulated or their quantum.
The latest available salary advice from the husband indicated as at
28 September 2000 the husband was in receipt of $739.86 fortnightly salary. This was after amounts had been deducted for superannuation, taxation; living-in accommodation of $69.80 which I note will increase from 1 January 2001 by some $18.00 as a consequence of his relocation to D; utilities $15.90 per fortnight and child support of $287.84 which is now $153.00, a deduction of $134.84. D F Credit repayments of $240.00 per fortnight being met as were Public Service Benevolent Fund fortnightly repayments of $94.85. I note also the husband’s taxation will reduce because of a zone allowance when he relocates to D but the husband was not able to advise in what sums. In fact the husband was evasive as to his pay position on relocation to D making concessions only upon information obtained by the wife and put to him in cross-examination.In addition to this income the husband has received salary earnings not shown on his 1999-2000 group certificate in the sum of $32,842.00 up to 30 June 2000. Salary earnings not shown in the 2000-2001 financial year are in the sum of a further amount of $7,360.00 to 21 September 2000.
Consequent upon the husband’s relocation he will receive a district allowance of $1,570.00 per annum together with $27.50 per week on-field duty allowance should he be engaged in on-field duties. He will also receive an annual payment of $825.00 for a remote locality leave travel allowance.
The husband conceded that in D he shall be in receipt of a higher income than he is at present.
Taking the husband’s income to be in the sum of $739.86 per fortnight and deducting the sum of $18.00 as a consequence of his relocation to D leaves an amount of $721.86 per fortnight. To that is added $134.84 being as a result of the deduction in child support together with $35.00 being the over-payment made by the husband to the D F Credit Union Ltd repayment makes available to the husband an amount of $891.70. There is then in addition to that $60.40 each fortnight being an averaging out of the husband’s district allowance making a total of $452.10 per fortnight income out of which the husband is to meet his necessary additional expenses. I note that his accommodation and utilities expenses has already been included as has repayment of his loans and his child support payments. In addition to this income is the additional taxation reduction income which will be in the husband’s pocket but as to which there is no evidence before me.
Out of the $226.05 each week the husband is required to meet the following expenses:
a)$47.00 for his food which enables him to eat three meals a day seven days a week;
b)$60.00 claimed by him for his petrol expense although I find that the claim is an excessive figure given that it is based upon the husband driving to and from work in an Army barracks base approximately five kilometres in width. This expense could be reduced to perhaps $40.00 each week;
c)$20.00 per week in clothing which I accept although it was challenged;
d)$20.00 per week with respect to additional expenses and entertainment being of a personal nature which I accept;
e)$40.00 per week for the husband’s mobile phone which again although challenged I accept;
f)$30.00 per week for car expenses;
g)$8.00 per week for dry cleaning.
This total of $205.00 leaving a surplus of income over expenditure of approximately $21.50 each week.
In addition to that surplus is any taxation benefit the husband will receive; any on-field duty allowance he may receive; his annual payment of a remote locality leave travel allowance; and the additional salary earnings not shown in his group certificates and in this financial year to 21 September 2000 $7,360.00 or $613.00 each week.
I am not satisfied that the husband has satisfied any liability for spousal maintenance in his on-going repayment of the D F Credit Union debt. This debt could well have been paid out by now by the husband with monies received by him and in part it relates to the purchase of a car in his possession. In addition, I accept the wife’s evidence that the sum of $2,606.00 advanced by AVCO she had no knowledge of or access to.
It is difficult to ascertain precisely the sum which the husband should pay to the wife by way of weekly spousal maintenance given that I am certain he has available to him a surplus or only $21.50 but with reference to paragraphs 29 and 34 of this judgment, to that must be added a considerable surplus which would more than satisfy the claim of the wife. His ongoing salary earnings are not able to be determined by me and that is the difficulty which was not assisted by the husband’s lack of response to questions concerning his precise income in the future. Nevertheless I believe that there is sufficient evidence to conclude that the husband has a capacity to make a payment to the wife in the sum of approximately $100.00 per week and I propose to order that the husband pay spousal maintenance in that sum with the first payment to commence on 20 October 2000 being the commencement date I indicated to the parties at the time of hearing.
I find the husband has the capacity to meet the costs of the wife reserved and that there is currently considerable disparity in the parties’ income. For the reasons outlined in paragraph 6 above I propose to order that the husband pay those costs but shall allow him sixty days to make the said payment.
I propose to make a maintenance order consisting of periodic payments from the husband to the wife for a period of time limited to eighteen months being a period in which the wife can continue her search for employment as a cleaner and/or obtain a marketable job skill which may assist her in obtaining employment and from which she has been precluded up to the present time due to her care of the children. Obviously if the wife should enter into a permanent de facto relationship wherein financial support is being provided to her or she becomes gainfully employed then she should advise the husband of those changed circumstances within seven (7) days.
It is ordered :
(1)THAT the husband pay to the wife by way of spousal maintenance the sum of $100.00 per week less premiums necessary to maintain the term insurance referred to in order no. 7 of the orders made by consent on 13 October 2000.
(2)THAT the husband pay the wife’s costs of and incidental to the husband’s Form 3 Application filed on 13 September 2000 and fixed in the sum of $1,934.00 by Registrar Wilson by order made on 28 September 2000.
(3)THAT there be a stay with respect to the above costs order such that the husband make payment of the said costs within sixty days of today’s date to the solicitors acting for the wife.
(4)The said payment of spousal maintenance as referred to in order no. 1 herein continue for a period up to and including 20 March 2002.
(5)THAT the wife within seven days notify the husband in writing of her becoming gainfully employed providing to the husband all details pertaining to her employment including hours worked, rate of pay and total weekly remuneration received by her. Further the wife provide notice to the husband in writing within seven days of her entering into a permanent de facto relationship and/or her re-marriage.
(6)Certify for Counsel.
(7)THAT otherwise all extant applications are dismissed and removed from the active pending cases list.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate:
Date:
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