Ingold and Ingold

[2016] FamCA 679

FAMILY COURT OF AUSTRALIA

INGOLD & INGOLD [2016] FamCA 679

FAMILY COURT – PROPERTY – INTERIM PROCEEDINGS – Where the wife seeks periodic spousal maintenance and lump sum urgent spousal maintenance –  Where the wife’s income has been significantly reduced in circumstances where she is no longer involved in the parties’ distributorship  –  Where the Court finds that the wife is unable to support herself adequately for the purposes of section 72  – Where the Court finds the husband has the capacity to pay to the wife periodic spousal maintenance – Where no evidence was presented by the wife as to why she requires urgent spousal maintenance – Orders made for the wife to be paid periodic spousal maintenance.  

Family Law Act 1975 (Cth) ss 72, 74, 77
Family Law Rules 2004 (Cth) Chap 13

Hall & Hall (2016) 332 ALR 1
Stein & Stein (2000) FLC 93-004

APPLICANT: Ms Ingold

RESPONDENT: Mr Ingold

FILE NUMBER: SYC 6816 of 2014

DATE DELIVERED: 18 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 2 August 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Douramanis of Diamond Conway Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schonell

SOLICITOR FOR THE RESPONDENT: Rebekah Dorter Family Lawyer

Orders pending further order:

1. Pursuant to section 74 of the Family Law Act 1975 (Cth):

   1.1.  Periodic spousal maintenance is to be paid to the wife in the sum of $5000 per month from the joint Australia and New Zealand Banking Group bank account BSB: … Account Number: … with such payments to be made to the wife on the first day of each month and with the first payment to made on the first day of the month immediately subsequent to the date of these Orders.

2. The husband and the wife are to do all such acts and things and sign all documents necessary to authorise the Australia and New Zealand Banking Group to effect the payments referred to pursuant to Order 1.1 above.

3. All outstanding applications for interim orders are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6816 of 2014

Ms Ingold

Applicant

And

Mr Ingold

Respondent

REASONS FOR JUDGMENT

Introduction  

1. By an Application in a Case filed on 5 May 2016, Ms Ingold (“the wife”) seeks a monthly payment of $10 000 for spousal maintenance pursuant to section 74 of the Family Law Act 1975 (Cth) (“the Act”), together with an additional payment of $15 000 pursuant to section 77 of the Act by way of urgent spousal maintenance.

2. The wife’s application is opposed by Mr Ingold (“the husband”) who, in response, seeks alternative orders whereby there be a monthly distribution to  the parties from a joint account held with the ANZ Bank. The distribution proposed by the husband is, however, conditional upon the account achieving a balance of $220 000 at which time the husband proposes a monthly distribution to the husband in the sum of $15 000 and a monthly distribution in the sum of $5000 to the wife. 

3. The reason the husband seeks to defer the distribution of funds to the parties is to ensure that there are sufficient funds available to pay outstanding taxation liabilities payable by the parties in respect to the 2012 to 2015 financial years.

Background

1. The parties commenced cohabitation in either June or July 2002. This difference does not appear to be material for the purpose of these proceedings.

2. The parties married in 2003 and separated in June 2013.  They were divorced in January 2015.

3. There are three children of the marriage, B who is currently aged 11, C who is currently aged 10 and D who is currently aged 8 (“the children”).

4. The parties have agreed on parenting arrangements whereby the children live week about with each of the parties.

5. On 16 June 2014 the parties sold the former matrimonial home at Suburb E for the sum of $1 210 000.  After the payment of costs associated with the sale and the discharge of the mortgage secured over the property, the parties were left with net proceeds in the sum of $620 646.12. 

6. There is a dispute between the parties as to the nature of an agreement between them as to how the proceeds of the sale were to be utilised.  The wife acknowledges spending the sum of $278 589 to repay what she asserts were outstanding debts, including repayment of a loan from her mother in the sum of $110 000 and a loan from her sister in the sum of $48 000. 

7. The husband acknowledges an agreement for the wife to be paid an amount of $165 000 from the net proceeds of the sale which included, according to the husband, repaying the wife’s mother a sum of $110 000 and her sister a sum of $23 000. 

8. The husband challenges whether those loans have been repaid to the wife’s mother and sister. He also expresses concern that he has not been able to ascertain what has happened to those funds.

9. The husband asserts that there has been a history of extravagant expenditure by the wife. This, together with issues of non-disclosure, are factors that the husband submits the Court should consider in respect to the wife’s application.

10. The primary dispute that has given rise to the current application relates to revenue generated by a joint Company F distributorship (“the distributorship”) that the parties operated during the course of their marriage.  The distributorship was commenced by the husband in 1989 and, over the years, it has expanded considerably.  It was agreed between the parties that the gross return from the distributorship in the last financial year was approximately $260 000.

11. Income generated by the distributorship has been, and continues to be, paid into a joint ANZ account. Until the funds were frozen in March 2016, the wife had equal access to the joint account.  The wife asserts the account was frozen as a result of a direction being made by the husband to the ANZ.  The husband asserts that the freezing of the accounts occurred as a result of ANZ noting the dispute between the parties and as a consequence, requiring the consent of both parties before permitting access to the funds held in the joint account. 

12. The wife asserts that the funds currently held in the joint account total approximately $47 000. However, the husband’s Financial Statement filed 18 May 2016 asserts that there is approximately $52 500 in the account. 

13. On 5 May 2016 the wife filed her Application in a Case seeking orders pursuant to sections 74 and 77 of the Act.

14. On 18 May 2016 the parties entered into consent orders which included an agreement for each party to receive $25 000 from the joint ANZ account, with the distribution identified as being by way of an interim property settlement. 

15. The husband asserts that the fact that the wife received the payment of $25 000 by way of interim partial property distribution is a factor the Court should consider in determining whether the wife is unable to support herself. 

16. The wife, on the other hand, asserts that she has provided particulars as to how those funds have been disbursed and denies any extravagance or inappropriate expenditure.

The Law

1. In the recent case of Hall & Hall (2016) 332 ALR 1, the High Court set out the appropriate approach in considering an application for interim spousal maintenance as follows:

   3. … The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section 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 … having regard to any relevant matter referred to in [s] 75(2)".

   4. The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That sub-section provides that, "[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part".

   5. A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as "the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment". They also include, by virtue of s 75(2)(o), "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account".

   …

   8. Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order "[t]he evidence need not be so extensive and the findings not so precise" as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).

   (Footnotes omitted)

2. The totality of matters set out in section 75(2) are as follows:

   (a)  the age and state of health of each of the parties; and

   (b)  the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   (c)  whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)  commitments of each of the parties that are necessary to enable the party to support:

   (i)  himself or herself; and

   (ii)  a child or another person that the party has a duty to maintain; and

   (e)  the responsibilities of either party to support any other person; and

   (f)  subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)  any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party; and

   (g)  where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (h)  the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

   (ha)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

   (j)  the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

   (k)  the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)  the need to protect a party who wishes to continue that party's role as a parent; and

   (m)  if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

   (n)  the terms of any order made or proposed to be made under section 79 in relation to:

   (i)  the property of the parties; or

   (ii)  vested bankruptcy property in relation to a bankrupt party; and

   (naa)  the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)  a party to the marriage; or

   (ii)  a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

   (na)  any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

   (o)  any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)   the terms of any financial agreement that is binding on the parties to the marriage; and

   (q)  the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

Issues

1. The issues to determine in these proceedings are therefore:

   i.To what extent is the wife unable to support herself having regard to section 72(1) of the Act (i.e. the “gateway” issue)?

   ii.What are the wife’s reasonable needs?

   iii.What capacity does the husband have to meet a spousal maintenance order, if such an order was to be made?

   iv.If (i) to (iii) favour an order for spousal maintenance being made by the Court, what order is reasonable having regard to section 75(2) of the Act?

Has the wife established that she is unable to support herself by reason of having the care of children under the age of 18 years?

Issue of non-disclosure

1. Counsel for the husband argued that the wife has failed to demonstrate that she is unable to support herself because she has not presented evidence of reasonable attempts to obtain employment.  The husband noted that the wife’s evidence is restricted to applications which were all made on 21 June 2016 through the website seek.com.au.  The husband also asserted that the applications for employment related to positions outside the wife’s expertise. 

2. Counsel for the husband also submitted that the Court should have regard to the fact that the children spend an equal amount of time with both parents. 

3. Finally, the counsel for the husband submitted that, as a result of issues of non-disclosure on the behalf of the wife, the Court could not be satisfied that the wife has met the legislative gateway requirement of establishing that she is unable to support herself adequately.  In that respect, the husband asserted that the wife has failed to properly disclose:

   (a)The nature of her relationship with Mr G (“Mr G”);

   (b)The extent to which the wife and Mr G have intermingled their finances in circumstances where Mr G is a joint card holder on one of the wife’s credit cards;

   (c)The extent to which the wife and Mr G have intermingled their finances in circumstances where the wife is leasing a property which has been purchased by Mr G;

   (d)How it is that the wife’s Financial Statement filed 5 May 2016 identifies the loan to Mr G as a financial resource in the sum of $110 000 and subsequently in her Financial Statement filed 1 August 2016, she identifies the loan as a financial resource in the sum of $113 800; and

   (e)The basis upon which rental expenses incurred by Mr G were paid by the wife in exchange for Mr G providing fitness instruction to the wife and the children. 

4. The wife asserted that she initially failed to disclose the nature of her transactions with Mr G, and transactions related to Mr G’s business, as she considered those transactions to have been no business of the husband. 

5. The obligations of disclosure set out in Chapter 13 of the Family Law Rules 2004 (Cth) (“the Rules”) are quite clear and with respect to the wife, the reason she has advanced for her previous failure to fully disclose her financial transactions is unsatisfactory. I note, however, that the wife has provided additional information concerning these matters in affidavits filed subsequent to the filing of her Application in a Case. That additional information is contained in the wife’s affidavits filed 15 July 2016, 26 July 2016 and 1 August 2016.

6. I have significant reservations as to whether the wife has fully disclosed the nature of her financial relationship with Mr G. In particular, I have significant reservations regarding the nature of the asserted loan to Mr G in circumstances where the wife claims that the loan is a financial resource for her whilst also asserting that it is a debt payable by Mr G to the wife’s mother. This is an issue that will be better explored at final hearing.

7. In terms of the gateway requirement set out in section 72(1), I note that the wife and the husband have both been responsible for the care of their three children. I further note that subsequent to her marriage to the husband, the wife has applied her skills to the distributorship and has not been engaged in her traditional area of employment. While she is in the process of attempting to build her own Company F distributorship, understandably that will take some time. In the meantime, her income has been reduced as a result of no longer participating in the distributorship with the husband.

8. Accordingly, I am satisfied that the wife has met the gateway requirements of section 72(1) that she is unable to support herself adequately:

   a.in terms of section 72(1)(a), by reason of having the joint care and control of the children who are under the age of 18 years;

   b.in terms of section72(1)(c), because the wife’s income has been significantly reduced as a result of no longer being involved in the distributorship with the husband and it will take some for her to establish her own distributorship; and further  

   c.in terms of section 72(1)(c), the wife has not been engaged in her traditional area of employment as a result of being involved in the distributorship with the husband and, given the period of time that has elapsed since the wife worked in that area, it would take some time to update her skills set to obtain employment in that sector.

The wife’s reasonable needs

1. During the course of the proceedings the wife’s legal representative conceded that, in assessing the needs of the wife, it was inappropriate to consider expenses incurred by the wife in respect to the children of the marriage. 

2. It was asserted that the wife’s average weekly expenses are set out in Parts G and N of her Financial Statement filed 1 August 2016 as follows:

   Part G:

Rent	$645
Life and Total and Permanent Disability (TPD) insurance	$22
Motor vehicle insurance	$27
Third party motor vehicle insurance	$12
Motor vehicle registration	$11
Lease payments in respect to motor vehicle	$204
Credit card payments (Mastercard)	$100
Credit card payments (Amex)	$399

Part N:

Food	$70
Household supplies	$20
Gas	$14
Electricity	$15
Telephone	$45
Motor vehicle - maintenance	$15
Fares	$20
Clothing and shoes	$50
Medical, dental and optical	$20
Entertainment/hobbies/fitness	$240
Holidays	$50
Chemist/pharmaceutical	$5
Books and magazines	$5
Gifts	$10
Hairdressing	$10

1. Counsel for the husband argued that the Court should not have regard to certain items of the wife’s alleged weekly expenses as a result of the wife failing to provide sufficient documentary evidence to support those expenses.  In that respect, reference was made to the recent decision of the High Court in Hall & Hall (2016) 332 ALR 1, which confirmed that even in interim proceedings the rules of evidence apply.

1. I am satisfied that by way of the annexures to her affidavit filed 1 August 2016, the wife has provided adequate evidence to support the quantification of the following expenses:

   (a)Rent – Annexure A;

   (b)Life and Total and Permanent Disability (TPD) insurance – Annexure B;

   (c)Motor vehicle insurance – Annexure C;

   (d)Third party motor vehicle insurance – Annexure D;

   (e)Motor vehicle registration – Annexure E;

   (f)Lease payments in respect to motor vehicle – Annexure F;

   (g)Credit card payments (Mastercard)– Annexure G;

   (h)Credit card payments (Amex)– Annexure H;

   (i)Telephone – Annexure I;

   (j)Gas – Annexure J;

   (k)Electricity – Annexure K;

   (l)Fares – Annexure L;

   (m)Entertainment – Annexure M;

   (n)Household groceries – Annexure O; and

   (o)Clothing – Annexure O.

2. Counsel for the husband nonetheless argued that the wife’s claimed expenses should be reduced by removing all of those expenses relating to the motor vehicle because the wife does not have a licence. Counsel for the husband also argued that the items that include a component in respect to expenditure on children should be reduced to remove that component.  These included, for instance, rent, gas and electricity.  Finally, it was argued that the wife had not provided evidence to support an increase in the expenses she claims that were over and above her previous Financial Statement.

3. As a result, the husband argued that, in the event of the Court finding that the wife had satisfied the gateway requirements of section 72(1), the Court should find that the wife’s reasonable needs were as follows:

Rent - being one third of rent actually paid	$215
Life and Total and Permanent Disability (TPD) insurance - as a result of that item being non-essential and only recently taken out	$NIL
Motor vehicle related expenses - as a result of the wife not having a driver’s licence	$NIL
Credit card payments (Mastercard)	$100
Credit card payments (Amex)	$400
Food	$60
Household supplies	$10
Gas	$5
Electricity	$5
Telephone	$38
Fares	$20
Clothing and shoes	$50
Medical, dental and optical	$20
Entertainment	$30
Chemist/Pharmaceutical	$5
Gifts	$5
Hairdressing and toiletries	$10
Total	$973

1. I find that it is not reasonable for the wife to claim expenses relating to the motor vehicle in circumstances where the motor vehicle owned by the wife was purchased after separation, where the wife does not have a driver’s licence and until recently she had expressed an intention to sell the motor vehicle.  I accept the argument made on the behalf of the husband that it is reasonable to assume that the motor vehicle has been used by another person.  In circumstances where the wife has not particularised how the motor vehicle has been used and whether it has or has not been utilised for her benefit, it would be inappropriate to include those expenses. 

2. I also note that the wife has claimed a large amount in respect to “entertainment/hobbies/fitness”.  I note the wife’s assertion that it is necessary for her to maintain her fitness in promoting Company F products and I further note the wife’s desire to maintain good health as a result of a medical condition from which she suffers that could result in chronic kidney disease (Annexure P to the wife’s affidavit filed 1 August 2016). However, the amount claimed by the wife in respect to entertainment/hobbies/fitness is excessive.  I note that the claim of $240 per week equates to approximately $12 480 per annum.  In forming that view, I have had regard to the fact that the wife has not fully disclosed the nature of her relationship with Mr G who is the wife’s fitness instructor.  In circumstances where Mr G owes the wife and/or the wife’s mother the sum of $110 000, it is unsatisfactory that the wife has presented no evidence regarding the frequency and nature of instruction that she receives from Mr G and the basis upon which she is charged by him.  In the absence of such evidence, I am not satisfied that the amount of $240 per week is reasonable. 

3. I note that the husband was prepared to concede that the amount of $30 per week was a more reasonable figure. In the absence of evidence to the contrary, I will therefore reduce the weekly amount claimed by the wife in respect of “entertainment/hobbies/fitness” from $240 per week to $30 per week. 

4. I reject counsel for the husband’s argument that I should reduce the expenses claimed by the wife in respect to rent, electricity and gas on the basis that a portion of that expenditure relates to the children. This argument was based on the Full Court decision in Stein & Stein (2000) FLC 93-004. I accept the submission by the wife’s legal representative that the wife is renting an appropriate property in circumstances where it is necessary for her to have sufficient accommodation for the parties’ three children when they stay with her. While it may well be the case that a portion of the electricity and gas is utilised by the children during those periods that they spend with the wife, it is artificial to attempt to apportion what are relatively minor expenses on the basis of assumptions as to how much gas and electricity the children use.

5. I also reject counsel for the husband’s argument that the items of expenditure claimed by the wife in her Financial Statement filed 1 August 2016 should be reduced to those which she claimed in her earlier Financial Statement filed 5 May 2016.  While in some instances the amounts claimed are slightly higher, they are not in my view excessive and it is reasonable for the wife to make some adjustment having regard to the updated documentation which is now attached to her affidavit filed 1 August 2016.   

6. Accordingly, I find that the wife’s reasonable needs are as follows:

Rent	$645
Life and Total and Permanent Disability (TPD) insurance	$22
Credit card payments (Mastercard)	$100
Credit card payments (Amex)	$399
Food	$70
Household supplies	$20
Gas	$14
Electricity	$15
Telephone	$45
Fares	$20
Clothing and shoes	$50
Medical, dental and optical	$20
Entertainment/hobbies/fitness	$30
Holidays	$50
Chemist/Pharmaceutical	$5
Books and magazines	$5
Gifts	$10
Hairdressing and toiletries	$10
Total	$1530

1. I have assessed the wife’s reasonable weekly expenses to be in the sum of $1530 per week. At Part D of her Financial Statement filed 1 August 2016 the wife discloses an income of $155 per week from her Company F distributorship. Accordingly, deducting the wife’s disclosed income from her weekly expenses, the shortfall in the wife’s income and her reasonable weekly expenses is in the sum of $1375.

Husband’s capacity to pay

1. The wife’s legal representative criticised the evidence presented by the husband insofar as it failed to support the husband’s assertion as to his incapacity to pay spousal maintenance.  The husband’s evidence was contained in his affidavits filed 18 May and 26 July 2016 respectively. 

2. In particular, the solicitor for the wife asserted that the expenses claimed by the husband in a letter from his solicitors to the wife’s solicitors dated 6 July 2016 (Annexure E to the wife’s affidavit filed 15 July 2016) did not accord with the expenses in statements prepared by an independent bookkeeper “evidencing the average expenses per month” of the distributorship (referred to in paragraph 25 and Annexure A of the husband’s affidavit filed 18 May 2016). 

3. In response, counsel for the husband submitted that the schedule prepared by the bookkeeper was prepared with the assistance of the wife.

4. There is clearly an intermingling of personal and business expenses in the schedules. I do not intend to attempt an apportionment of the parties’ personal and business expenses. The extent to which personal expenses have been claimed as business expenses may ultimately be an issue in respect to the parties’ dealings with the Commissioner for Taxation. In these proceedings it presents a difficulty for the husband establishing what his average weekly personal expenses are and hence his capacity to pay spousal maintenance.

5. I note that it was conceded by the husband that in the last financial year that the distributorship has received income in the order of approximately $260 000. 

6. There is a disagreement between the parties as to whether the distributorship’s revenue is received as a return on services provided as argued by the husband, or by way of royalties as argued by the wife. I am unable to resolve that issue in these interim proceedings. However, it is reasonable to assume that there will be items of expenditure that relate to the business activities of the distributorship whatever the basis of its operation. 

7. The husband claims that the business expenses associated with the distributorship are approximately $8000 per month (paragraph 25 of the husband’s affidavit filed 18 May 2016). 

8. On that basis, the earnings before income tax of the distributorship would appear to be approximately $164 000 per annum. 

9. As noted, however, the statements prepared by the bookkeeper in respect to the three year period from 24 June 2013 to 24 January 2016 include a number of items that clearly relate to personal, rather than business, expenditure.  This includes, for instance, food and alcohol, clothing, shopping, fitness/gym, chemist and appliances. It is not satisfactory for the husband to criticise the accounting statements on the basis that they were prepared by the bookkeeper with the assistance of the wife. It remains the case that the husband has failed to present adequate evidence to substantiate the personal expenses that he has claimed.

10. In short, in the absence of documentary evidence supporting the husband’s claimed personal expenditure, I am unable to identify the extent to which items claimed as business expenses have been replicated in those items claimed by the husband to be personal expenses. 

11. In those circumstances, and in the context where a substantial income is received by the distributorship, I am not persuaded that the husband is unable to pay spousal maintenance to the wife in the sum of $1375 per week.

Consideration of section 75(2) matters

1. In respect to section 75(2)(a), I note that the husband is currently 51 years of age and the wife is 43 years of age. Both are in good health and, indeed, pride themselves on maintaining a level of fitness as part of their business activities with Company F.

2. In respect to section 75(2)(b), during the course of the marriage, the parties developed a successful Company F distributorship that earns revenue in the vicinity of approximately $260 000 per annum.  There is a dispute between the parties as to the manner in which revenue is received.  Nevertheless, the revenue stream from the parties’ distributorship is not insubstantial.  While the details of the distributorship will be considered at final hearing, it appears that the husband has maintained primary control of the distributorship’s activities.

3. As a result of separation, the parties are now in the process of building their own Company F distributorships. 

4. The husband presented an argument that the wife is failing to exploit the totality of her earning capacity.  However, given her age and the period of time since the wife has provided financial services in accordance with her training, it is reasonable to assume that the wife’s capacity to obtain employment in that field has been limited.

5. In terms of section 75(2)(c), I note that the parties share care of their three children.

6. In terms of sections 75(2)(d) and (e), I have discussed the parties’ Financial Statements where they provide details of the expenses they each incur in supporting themselves.  While questions were raised regarding the nature of the wife’s relationship with Mr G, there was no evidence provided to the Court upon which I can conclude that the wife is responsible for supporting Mr G.

7. In terms of section 75(2)(f), I note that each party’s Financial Statement identifies that each party has quite modest superannuation entitlements and that neither party appears to be entitled to a government pension.

8. In terms of section 75(2)(g), the evidence presented by the parties to date is not such that I am able to identify the extent to which they enjoyed a comfortable standard of living prior to separation and the extent to which they are or are not enjoying a similar standard of living since separation.  I note, however, that both parties have acquired German motor vehicles, which suggests that they may at least aspire to maintain a comfortable standard of living.  On the other hand, the expenses listed at Part N of the parties’ Financial Statements, other than in respect to the wife’s expenses for “entertainment/hobbies/fitness”, appear to be relatively modest.

9. In terms of sections 75(2)(h) and (j), the evidence is such that it appears both parties have contributed to the development of the successful distributorship.  I am not, on the basis of the evidence available to me in these interim proceedings, able to make an evaluation of the extent of the parties’ respective contributions.

10. In terms of section 75(2)(k), I note that the parties cohabitated for approximately eleven years.  Both parties were engaged in the distributorship during that period.  Both parties also contributed to the care of the children.  This consideration is evenly balanced in respect to each of the parties. 

11. In terms of section 75(2)(o), I note that the wife failed to initially provide full disclosure of her relationship with Mr G, and the extent to which she has been involved in and/or supported Mr G’s business. This has included by initially paying rent on his behalf and subsequently, paying rent to him as the owner of the commercial property which she leases from him at Suburb E (Exhibit B).

12. I also note that despite alleging loans to her mother and her sister as well as to Mr G, the wife has not provided particulars of the alleged loans, including for instance, the terms of the loan such as the period of the loan and requirements for repayment.

13. I further note that while the wife purchased a motor vehicle in 2013, she did so in circumstances where she has not had and still does not have a drivers licence. The wife has not provided information regarding the use of the motor vehicle she purchased and whether it has been made available for the use of a third person including, as alleged by the husband, Mr G. 

14. As a result of the wife failing to provide disclosure in respect of those matters, it is appropriate to give consideration to the submission of the husband that the Court cannot be satisfied that the wife is unable to satisfy her needs from other property or financial resources.  I remain with sufficient doubt as to the extent to which the wife has undisclosed means to support herself that I consider it is appropriate to reduce the amount of spousal maintenance that I will order the husband to pay to her.

15. I note that the husband’s Response to an Application in a Case acknowledges a capacity to pay the wife the amount of $5000 per month after the funds in the joint ANZ account exceeds $220 000.  It has previously been noted that the reasoning of the husband in proposing those orders is to ensure that sufficient funds are available to pay the parties’ outstanding taxation liabilities for the period from 2012 to 2015. The husband estimates the outstanding taxation liabilities to be approximately $167 320 and with the additional tax payable in respect to the financial year ending 30 June 2016, that liability may exceed $200 000 (Exhibit A).

16. The husband submitted that, in the event of the Court making an order for him to pay spousal maintenance to the wife, the Court would be in effect be depriving the Commissioner of Taxation of monies that would otherwise be payable by the parties.  With respect, that argument assumes that any order of the Court for the husband to pay spousal maintenance would take priority over the parties’ obligations to the Commissioner of Taxation.  That is clearly not the case. 

17. However, the husband has not provided evidence as to any enquiries that he has made in respect to the possibility of  borrowing funds to supplement the funds presently held in the ANZ account in order to meet the parties’ taxation liability. Further, no evidence was provided to the Court as to any attempts which may have been made to make arrangements for the taxation liability to be satisfied by way of periodical payments. In the absence of such evidence it would, in my view, be unfair not to allow the wife access to some funds which she requires to adequately support herself.

18. An additional factor that I have taken into consideration in making this order is that, at final hearing, there will be an argument between the parties as to the extent to which the wife has an interest in the revenue generated by the distributorship.  At the very least, it appears that a portion of the income received by the Company F distributorship is due to the wife’s direct and indirect contributions.

Orders

1. In all the circumstances, it is appropriate to make an order that the husband pay spousal maintenance to the wife in the sum of $5000 per month. 

Urgent spousal maintenance

1. The focus of the hearing before me was on the wife’s application for maintenance pursuant to section 74.

2. No evidence was provided as to immediate urgency justifying the payment of  a lump sum payment to the wife. 

3. I note that the wife has previously been able to borrow funds from her mother and sister and has elected to lend a substantial amount to Mr G.

4. I further note that, pursuant to consent orders made on 18 May 2016, the wife received a lump sum of $25 000 by way of an interim property settlement. 

5. In the circumstances I am unable to conclude that the wife faces a situation of urgency such that a lump sum payment pursuant to section 77 of the Act is justified.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 18 August 2016.

Associate

Date:  18 August 2016