Isbister and Isbister

[2013] FCCA 475

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISBISTER & ISBISTER [2013] FCCA 475

Catchwords:
FAMILY LAW – Spousal maintenance – wife’s needs conceded – issue of wife’s ability to attend to her own needs – issue if husband’s ability to contribute to the wife’s needs – issue of when parties separated.

Legislation:

Family Law Act 1975 (Cth)
Federal Circuit Court Rules2001

Federal Circuit Court Regulations

Jones v Dunkel (1959) 101 CLR 298
Richardson & Richardson (1979) FLC 90-603
Rouse & Rouse (1981) FLC 91-073

Applicant: MS ISBISTER

Respondent: MR ISBISTER

File Number: MLC 5307 of 2010

Judgment of: Judge McGuire

Hearing dates: 21 & 22 May 2013

Date of Last Submission: 22 May 2013

Delivered at: Melbourne

Delivered on: 2 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Robinson

Solicitors for the Applicant: Nicholes Family Lawyers

Solicitors for the Respondent: Unrepresented

ORDERS

1. That the Respondent pay spousal maintenance to the Applicant in a sum of $500 per week or $2,167 per calendar month for a period of two years from the date of these Orders with the payment to be made in arrears and with the first payment to be made on or before 4.00 pm on 9 August 2013 and thereafter on a weekly or monthly basis as agreed between the parties but failing agreement then to be on a weekly basis and such payments to be made directly into a bank account nominated and advised by the applicant to the respondent or otherwise as agreed between the parties.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT LAUNCESTON

MLC 5307 of 2010

MS ISBISTER

Applicant

And

MR ISBISTER

Respondent

REASONS FOR JUDGMENT

1. The application before me is that of the wife seeking spousal maintenance in a sum of $3891 per calendar month as from 15 October 2012, being the first return date on her application.  She argues that this order continue until the youngest of the children of the marriage commences secondary school.

2. The respondent husband opposes the application and seeks that it be dismissed.

3. The parties commenced cohabitation in 2000.  They married in 2003.  There is a dispute, and I am required to make a finding, as to whether they separated in January 2008 according to the husband or, alternatively, in June 2010 on the wife's version.

4. The parties agree that prior to the wife’s preferred date of separation being June 2010, they had been living in separate residences and whilst receiving assistance with marriage difficulties. The parties agree that during this period the husband paid $5,500 per month support for the wife and children. The husband says that this was support paid post-separation.

5. The parties have three children, X, born (omitted) 2005 (aged eight years); Y, born (omitted) 2007 (aged six years); and Z, born (omitted) 2009 (aged four years).

6. The applicant wife says that she has not repartnered in the sense that there is a marriage-type relationship or, importantly for this matter, one in which she is financially dependent on another person.  She concedes, however, that she is in a relationship with Mr P.  Mr P provided an affidavit, gave evidence and was cross-examined.  Both the applicant and Mr P deposed to a relationship of boyfriend-girlfriend with no financial interdependency.  The father argues that the relationship is of a different status and that the wife is dependent upon, and that Mr P offers, financial support for her.  Consequently, I am also asked to make a finding in respect of the status of this relationship.

7. The husband married Ms B on (omitted) 2011.  They have a child, W, born (omitted) 2012.  The father filed an affidavit of Ms B but elected not to rely on her evidence and gave notice accordingly only after the conclusion of his own evidence.  I am asked by counsel for the wife to draw any available negative inferences accordingly in respect of the failure by MR ISBISTER to call Ms B where she would have been able to corroborate issues of credit between the parties.  The inferences I am asked to draw are those generally available under the well-known decision in Jones v Dunkel[1].

   [1] (1959) 101 CLR 298

8. The husband is also the father of another child, T, born to Ms S on (omitted) 2009. T lives with her mother. The husband pays child support of $800 per month.

9. The wife commenced proceedings for property, parenting and spousal maintenance orders by application filed 22 July 2010.

10. The final property settlement orders were made by consent on 28 February 2011 whereby the wife received 85 per cent of the property pool.  She reserved the right to bring on her spousal maintenance application.  Children's orders were made, also by consent, whereby the father, in accordance with his response, was to spend time with the children for one day each month plus some telephone communication.

11. The wife's current application for spousal maintenance was filed 14 August 2012.  The first listing of the matter was on 15 October 2012.  The matter was listed for a final hearing commencing 21 May 2013 with an estimated hearing time of two days.  The matter proceeded into the third hearing day.

12. The wife was represented by counsel at the hearing and solicitors during the course of the proceedings.  The husband at all times represented himself.  Prior to the commencement of the evidence. MR ISBISTER was informed in detail as to the procedure of the proceedings and invited to seek clarification at any time.  The Court ensured that he had copies of the relevant legislation.  MR ISBISTER conducted the trial in a professional, competent and courteous manner at all times.

13. The husband is assessed to pay child support of $2,400 per month for the three children of the marriage. He says that he pays $2,200. He concedes that there are current child support arrears of near $10,000. However the evidence, although a little confusing, is that his current income is $186,000 per annum although he appears to be assessed to pay child support for the three children of his marriage and for T based on his previous income of about $230,000 per annum.

14. Shortly after the wife commenced property proceedings in July 2010 the husband left his employment. He says it was terminated for “performance issues”. The wife alleges he left voluntarily. The husband commenced new employment in Melbourne about six weeks after final consent property Orders were made in April 2011. Those Orders reserved the right of the wife to pursue spousal maintenance.

15. In November 2011 the wife was the recipient of a costs order in a sum of $11,750 following unsuccessful children’s proceedings brought by the husband. MR ISBISTER did not pay those costs although it seems that his father provided the wife with $15,000 to meet her costs obligations. She considers this a loan. There was no evidence from the father. There is no evidence that he has pursued the repayment.

16. In April 2012 the husband entered into a Part X Personal Insolvency Arrangement in respect of various creditors totalling $60,000. The wife is one of those creditors presumably in respect of her costs order still outstanding. The husband pays $1,000 per month on this arrangement which has at the time of the hearing some thirteen months to continue.

The Evidence

1. The applicant relied on her affidavit and financial statement both filed 19 April 2013.  She was cross-examined appropriately and in some detail by MR ISBISTER.

2. The wife adduced evidence from Mr P.  His affidavit was sworn 26 April 2013.  Mr P was also cross-examined.

3. The wife tendered a number of documents into evidence as exhibits.  They include a notice to produce served on MR ISBISTER and a notice of disputed facts following the filing of a notice to admit facts.  The other tendered documents are:

A2	Subpoena material produced by Ms W, Psychologist
A3	Testimonial from Ms C on ‘(omitted)’ downloaded from the internet
A4	(omitted) Bank Statements from November/December 2012to May 2013
A5	(omitted) Bank Statement from 28 May 2012 to 27 July 2012
A6	Judgements from Wife’s Workplace Relations Case
A7	Document from (omitted)
A8	Medicare Records
A9	Bundle of documents referencing (omitted) in 2009 and 2010
A11	Report from Dr K, Clinical Psychologist
A12	Website page of “The (omitted)”

1. The husband relied on his affidavit and financial statement both filed 13 May 2013.  He adduced no other evidence.

The applicant wife's case

1. The applicant argues that she has needs of $1526 per week, or $6612 per calendar month and as set out in her sworn Financial Statement.  In his final submissions, MR ISBISTER conceded a sum of "$6600" in respect of the wife's needs.  I note, in any event, she seeks an order for spousal maintenance in a quantum of $3891 per calendar month.

2. The wife argues that her capacity to attend to and meet her own needs is compromised by the following: 

   (1) That she has the full-time responsibility for the care of the three children of the marriage excepting for just one day per month when they spend time with the father and that they are of a such young age that she is required to and should be permitted to prioritise the care of the parties' children over obtaining permanent or full-time employment; 

   (2) That she engages in some casual or part-time self-employment in (omitted) and therefore attempts to mitigate her own position and needs so far as she is reasonably able to do so.  She says that she intends to develop her skills or obtain alternative professional skills by the time that the youngest child is of high school age and so as to be able to properly support herself and contribute to the support of the children.  The wife says that her relationship with Mr P is not a financially dependent one although she acknowledges his generosity in some respects.

3. MS ISBISTER argues that she should not be required to exhaust the relatively modest property settlement award in support of herself but, in any event, such expenditure that she has made from that settlement has been, in all the circumstances, reasonable.

4. The applicant argues that MR ISBISTER has the capacity to contribute to her maintenance in the quantum sought.  She says that it is open for me to find on the evidence as a whole that MR ISBISTER has voluntarily relinquished employment when confronted with spousal maintenance applications.  She says that his earning capacity is greater than the $225,000 gross per annum that he initially conceded.  She argues that much of his expenditure is either discretionary and/or extravagant or excessive.

The respondent husband's case

1. MR ISBISTER concedes that he has an earning capacity of $230,000 per annum.  The concession made in his documents was of $225,000 with the increased amount coming during cross-examination. MR ISBISTER’s evidence was a little confusing and varied as to his current income and as to the durability of his employment. Nevertheless, I accept his evidence that he is prepared to accept and concede an earning capcity of $230,000 per annum.

2. As mentioned above, MR ISBISTER concedes the wife's needs in a quantum of $6600 per month. Such needs are inclusive of the children’s needs for which the husband’s child support is, of course, relevant.

3. MR ISBISTER argues that the wife is in a financially dependent relationship with Mr P and that he, therefore, should be relieved from maintaining his former wife.  In this respect he argues that the relationship between the applicant and Mr P is more than that of boyfriend/girlfriend.

4. MR ISBISTER points out that the applicant has had funds from the property settlement which if prudently used or invested would have been available for her support but that she has used those moneys for unnecessary discretionary expenditure such as elective surgery.

5. MR ISBISTER argues that, in any event, the applicant's experience, qualifications, obligations and skills are such that she could work whilst the children are at school and achieve $75 per hour, thereby contributing significantly to her own support, if not totally.

6. MR ISBISTER says that his income is exhausted by his own necessary expenditure. He has child support obligations for X, Y and Z. He has an obligation to pay child support to Ms S for T.  He has an obligation to support Ms B and their young child, W.  Ms B is not employed at this stage given W’s age.  Ms B has qualifications as a (omitted).  Counsel for the wife, properly in my view, does not argue that Ms B should currently be contributing directly to her household finances.

7. MR ISBISTER relies on his sworn financial statement and his evidence in Court, primarily given in cross-examination, as to the reasonableness of his ongoing expenditure.

The issues

1. At the completion of the evidence I am required to make findings as to the following:

   (1) the date of separation of the parties?  Both husband and wife argued vigorously for their own preferred version of the date of separation.  The relevance, in my view, is limited at best within the context of the spousal maintenance application now before me, although I do note that MR ISBISTER argues that he has "contributed over $270,000 to her by way of spousal support and for the children" since his preferred date of separation in January 2008.  The inference I am asked to draw, and the finding that I am perhaps asked to make, is that the wife should therefore have been prudent in placing herself in sufficient funds so as now to be able to provide for her own support or, alternatively, put herself in a position through obtaining skills or education to support herself by now; 

   (2) generally to draw inferences under the principle in Jones v Dunkel (supra) where there are issues of credit between the parties in that Ms B, the husband's wife, should have been able to support or corroborate the husband's position.  I am asked to find that the husband’s failure to call Ms B should cause me to draw a negative inference that her evidence would not have assisted his case.  I will reference such points of evidence if and when relevant throughout these reasons; 

   (3)whether there is an existing de facto relationship or, more particularly, a financially supportive/dependent relationship between the wife and Mr P? 

   (4) given the concession by the husband as to the wife's needs, I must make findings as to whether the wife is able to attend to her own needs and support? 

   (5)if the threshold of the wife having needs and being unable to attend to them herself is crossed, then, and only then, I must make findings as to whether the husband has the capacity to contribute to the wife's needs and, if so, in what quantum.

The relevant law

1. Section 72 of the Family Law Act (the Act) sets out the principles for determining an entitlement to spousal maintenance as follows:

   (1) 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) that 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 75(2).

2. Section 74(1) of the Act says:

   In 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.

3. The legislation stipulates that I am not to consider any entitlement to a means-tested pension or benefit as being income for the purposes of a spousal maintenance determination.

4. Section 75(2) sets out the matters that the court is to take into account in consideration of a spousal maintenance application.  They are:

   (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.

Discussion and Conclusions

The Wife’s needs

1. At part N of her Financial Statement the wife asserts ongoing weekly expenses for herself of $421. These items were not challenged by the husband. My reading of them suggests that they are reasonable. In addition the wife claims the following ongoing commitments:

   a)Accommodation at $450 per week. She does, however, propose, if finances allow, to obtain more suitable accommodation for herself and the children. They currently live in a two bedroom apartment. She estimates the reasonable costs of appropriate accommodation to be $660 - $770 per week;

   b)Insurances of $68 per week.

1. I calculate her current reasonable needs therefore at $939 per week or $4069 per calendar month.

2. Importantly, however, in his final submissions, the husband conceded the wife’s needs saying:

   Mr Isbister: Ms Isbister does have the care of our children for the vast majority of the times and as I deposed to you under cross-examination, I think $6600 per calendar month that Mr Robinson put to me is Ms Isbister’s expenses. I indicated at the time that I feel that they are reasonable expenses. I think that’s about what it would cost.

   His Honour:    Do you accept those as reasonable expenses?

   Mr Isbister: I do your Honour. The only issue that I had at that time, and will restate here was the issue of rent of a house between $660 and $770 per week in the area in which Ms Isbister wants to live, being (omitted).

3. I take MR ISBISTER’s concessions to include the costs of the family unit and inclusive of the child support that he currently pays at $2200 per month.

The wife’s ability to meet her own needs

1. The wife deposes earnings of E$192 per week as an (omitted). Her work is irregular and almost entirely from assisting Mr P in his (omitted) business. The remainder of her income is from Government benefits which I must disregard at law.

2. The husband argues on mathematical logic that the wife could earn up to $75 per hour given her skills, experience and presuming available work. In his Affidavit at paragraphs 55 and following Mr Isbister states:

   Z will begin primary school in January next year at (omitted) Primary School and attend standard school hours between 8.30 am and 3.30 pm.

   Given the educational commitments of the children, Ms Isbister presently has 13 hours each working week or 52 hours each month where the children are at school and kindergarten.

   This is much greater than the 3.46 hours each month Ms Isbister is choosing to work.

3. However, the wife has the responsibility for the care of the parties’ three young children, the youngest of whom is not yet of school age. She deposes that she wishes to prioritise her role as a mother. The authorities are consistent in supporting her in doing so.[2] The matter now before me is notable in that the wife’s responsibility to the children is almost total in that the husband sought and consented to Orders whereby he spend only one day per month with the children. Further, there is no evidence before me of sufficient probity that work would be available to the wife on any permanent or contractual basis so as to fit in with children’s school hours and her need to take them to school and collect them from school.

   [2] Richardson & Richardson (1979) FLC90-603 and Rouse & Rouse (1981) FLC91-073

4. Secondly, MR ISBISTER argues that the wife has support available to her from Mr P. The evidence is that MS ISBISTER and Mr P do not live together. They both deny financial interdependency. Mr P conceded some generosity in the sense of holidays and the use of a car. MS ISBISTER does not claim motor vehicle expenses in her Financial Statement. Cross-examination of both MS ISBISTER and Mr P did not disclose any financial reliance or relationship outside of this generosity. I am not satisfied on the evidence that MS ISBISTER is financially supported by Mr P and am satisfied that any further funds advanced by him have been in the form of loans as they both deposed. Nevertheless, that relationship now has some longevity and continuity. As such, I must consider the likelihood of MS ISBISTER repartnering within the context of all such circumstantial evidence and I conclude there to be a strong likelihood. If however, this is to occur then it might constitute a relevant change in circumstances in respect of any extant Order.

5. MS ISBISTER has had the benefit of a financial property settlement. The property pool was not substantial. She received $138,000 in non-superannuation assets. She deposes to having slightly in excess of $50,000 remaining. MR ISBISTER criticises the wife for discretionary expenditure and disbursement of these funds with an emphasis on $20,000 “cosmetic surgery”. However, I accept the wife’s explanation that this surgery was post-natal and at the recommendation of her Doctor. I find it to have been reasonable expenditure. I note also that MS ISBISTER has not had the benefit of spousal maintenance or financial support from the husband since the making of the final property Orders more than two years ago. I note also that there are arrears of child support owing by MR ISBISTER in a quantum near $10,000. In all of those circumstances I am satisfied that wife has not been extravagant or unreasonable in her disbursement of the property settlement award thus far. The remaining $50,000, even if prudently invested, would not bring the wife a large return. Although no evidence was adduced, I calculate that a 5 percent return would bring something less than $50 per week.

6. MS ISBISTER deposes that she intends to retrain so as to obtain skills to be able to support herself and will do so within the constraints of her current obligations to the children.

7. In all of the circumstances, I am satisfied that the wife cannot attend to her own needs over and above the E$192 per week she currently earns together with some small interest of $4 per week on her investment and any return on the balance of her property settlement.

The husband’s ability to contribute to the wife’s needs

1. MR ISBISTER lives with his wife and child in (omitted). He is the sole financial provider for the family unit. He works for his sister’s company “The (omitted)”. He describes himself in his Affidavit as “(omitted)”. After some confusion on the evidence, I am satisfied that his current gross income is $186,000 per annum. The fact that he could perhaps claim some significant taxation deduction advantages for expenditure on travel, telephone and other business expenses is not relevant given MR ISBISTER’s candid and consistent concession that his “earning capacity” is $230,000 per annum. He calculates this from the mean of the last three financial years’ income from his previous employment in Melbourne. The last of those years being 2012 his gross income was $242,000. I accept that these figures are inclusive of 9 percent superannuation. It was put to MR ISBISTER, and he did not dispute, that the tax payable on $230,000 and the deduction of the 9 percent superannuation would leave him with approximately $11,000 nett per month. I accept this as being his nett income per calendar month.

2. MR ISBISTER lists his ongoing expenses as follows:

   a)Taxation – already deducted above;

   b)Superannuation – already deducted above;

   c)Child support - $3010;

   d)Part X arrangement - $1000;

   e)Child Support arrears (although not being paid) - $500;

   f)Credit card payments - $30 per week or $130 per month;

   g)Motor vehicle registration - $17 per week or $74 per month;

   Adding up to $4714 per calendar month.

3. He sets out his ongoing living expenses in part N of his Financial Statement and with some detail in his Affidavit. They are as follows:

   a)$457 per month for “children’s expenses” for two days in Melbourne with X, Y and Z on one day and T on another.  These children are young. He does not have them overnight. I find the amount to be excessive and am prepared to allow $100 per day or $200 per month.

   b)Travel and accommodation costs of visiting the children in Melbourne of $621 per month.  Again, he does not accommodate the children over night. He concedes that he can stay with friends or family. I see no reason why he cannot coordinate the time with the children and travel only once per month. I find the claimed expense to be excessive and will allow for $400.

   c)School fees (although not paid for the current year) $160 per month;

   d) “Other living costs” of $736 per month over and above those detailed in part N of his Financial Statement. He describes these in his Affidavit as “take-away food, coffee, alcohol, gym membership, birthday-presents and cards, and a holiday each year to my wife’s parents’ beach house”. Holidays and gifts are detailed in part N. I find that the remainder of these expenses to be discretionary and effectively extravagances. I will not allow or include them.

   e) Clothing for his family of three at $356 per month.  Despite cross examination showing the purchase of particular “branded names”, I find this expenditure to be reasonable. I will allow $356 per month.

   f)The remaining items in part N which total $647 per week or $2803 per month. These include items for “education expenses” at $37 per week which is not supported on the evidence and which I will not allow. There is also an item for “hairdressing and toiletries” at $72 per week which I find to be excessive but will allow $50 per week. I find, therefore, the weekly expenses to total $584 or $2530 per month.

4. Therefore, by adding the figure of $4714 set out in paragraph 49 above and the figures in paragraph 50, which add up to $3646, I calculate a total reasonable expenditure of $8360 per month. I find, therefore that the husband has excess income, on his own evidence as to his earning capacity, and over his expenditure of approximately $2640 per month or $609 per week.

5. Consequently, having made findings as to the wife’s needs at $939 per week, and her own ability to meet those needs at a maximum of approximately $246 per week, together with the husband’s excess income over expenditure of $609 per week, but giving some account for contingencies and unexpected expenses for the husband, I propose to Order that he contribute spousal maintenance to the wife in a quantum of $500 per week or $2167 per calendar month.

6. Finally, I must determine the duration of such an Order. I take into account the ages of the children and the wife’s commitments to them, the wife’s commitment to retraining, and the nature of the relationship with Mr P. I am satisfied that the payment of spousal maintenance should be for a period of 2 years from the date of these Orders. In doing so I note that the application seeks payments be backdated to the first return date of 15 October 2012. I will not Order any retrospective or backdated payments. I note the unchallenged evidence that the husband has little or no cash reserves or assets and has an accrued liability to the Child Support Agency. I note the cash element of the property settlement on the wife together with my comments as to her disbursement of those monies. I am of the view that spousal maintenance is for ongoing spousal support and I note during the intervening period the wife has had the benefit of the generosity of Mr P. Whilst I accept that she has received “loans” from Mr P, there is no evidence before me that repayment is being actively pursued. The Order will be that the husband pays the wife spousal maintenance in the sum of $500 per week or $2167 per calendar month from the date of these Orders and for a period of two years.

7. Finally, in so far as it is relevant, I prefer the evidence of the wife as to the date of separation being June 2010. I note that the parties had separate residences for some period but were undergoing marriage counselling during that time. It appears, on the evidence of T’s date of birth, that the husband was involved in another relationship during that time. The husband continued to provide financial support for the wife and the children for that period in the sum of $2000 per week. There is no evidence before me that the wife had any other means of support. A letter tendered to the Court suggests that the parties jointly spoke to a financial advisor in January 2009 in regard to estate planning. The parties were having marriage guidance counselling from July 2009 and into 2010. The husband’s own diary produced at the hearing clearly indicates his own confusion as to his relationship status with both the wife and with the mother T at the time. It is clear that his relationship with T’s mother had not been disclosed to the wife and that he was perhaps “leaving his options open”. In all of these circumstances I accept that the fact of a final separation was not communicated by either party to the other at least in unambiguous terms. Consequently, I prefer that the parties separated finally in June 2010 as deposed by the wife. The relevance, in so far as there is any, is that the support rendered by the husband of $2000 per week from mid 2008 was during a period that the wife considered the marriage to be continuing and when she was rightly dependent upon the husband for support.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  2 August 2013