Kensit & Kensit
[2022] FedCFamC1F 633
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kensit & Kensit [2022] FedCFamC1F 633
File number(s): SYC 8643 of 2020 Judgment of: BRASCH J Date of judgment: 28 July 2022 Catchwords: FAMILY LAW – SPOUSAL MAINTENANCE –Reasonable needs - Whether the wife is unable to support herself adequately - Where the husband submitted that the wife was under-utilising her earning capacity and therefore the threshold under s 72(1) was not met - Where the wife was unemployed and the husband will not be attending medical appointments with the children - Threshold met – Capacity established Legislation: Evidence Act1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 72(1), 74(1), 75(2)(a)-(f), 75(2)(h), 75(2)(j), 75(2)(na), 75(3)
Cases cited: Bevan & Bevan (1995) FLC 92-600; (1993) 19 Fam LR 35
Brown & Brown (2007) FLC 93-316; [2007] FamCA 151
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Mitchell & Mitchell (1995) FLC 92-601 at 81 995; (1995) 19 Fam LR 44
Nutting & Nutting (1978) FLC 90-410; (1978) 30 FLR 556
Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570
Stein v Stein (2000) FLC 93-004; [2000] FamCA 102
Whisprun Proprietary Limited v Dixon (2003) 234 CLR 492; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 68 Date of hearing: 28 July 2022 Place: Sydney Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Mr Givney Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd ORDERS
SYC 8643 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KENSIT
Applicant
AND: MS KENSIT
Respondent
order made by:
BRASCH J
DATE OF ORDER:
28 JULY 2022
THE COURT ORDERS BY CONSENT THAT:
Family Therapy
1.The parties shall engage in family therapy at the B Service with the first available therapist.
2.To facilitate Order 1 the parties shall do all acts and things to contact the B Service by 4.00 pm 1 August 2022 to arrange an appointment, and shall attend upon the first available date and time with the first available therapist.
3.Leave shall be granted to the parties to provide a copy of the Child Impact Report dated 13 July 2022 to the family therapist.
4.The parties shall take all steps necessary to lift the stop placed upon the offset account (bearing BSB …, account number …).
5.For the purposes of family therapy, the mother and father shall use the offset account for the purposes of that therapy, and only for that therapy.
Family Report
6.Pursuant to Chapter 7 of the Federal Circuit Court and Family Court (Family Law) Rules 2021 (Cth), Dr C, Psychiatrist ("the Expert" ) is appointed to enquire into and report upon matters relating to the welfare of the X, born in 2008, and Y, born in 2011.
7.In preparing the report to the court, the Expert be and is hereby requested to consider the following matters:
(a)the nature of the relationship between the children and each of the parents (and any other relevant family members);
(b)the likely effect of any change in circumstances, including the likely effect on the children of any separation from either parent, grandparents, or other relative of the children;
(c)the capacity of the parents or any other person to provide for the needs of the children including physical, emotional and intellectual needs;
(d)the maturity, sex, cultural background and any other characteristics of the children or either parent that the expert thinks are relevant to the welfare of the children;
(e)any risk of physical or psychological abuse which has occurred or is likely to occur;
(f)any ill treatment or family violence or other abusive behaviour that is directed towards the child, a member of their family, extended family or significant person and the likely impact of that on the children;
(g)the attitude of the parents to the responsibility and duties of parenthood;
(h)what, if any, parenting or relationship education and/or training and/or counselling would be of benefit to any of the parents in order to improve their parenting capacity and relationship with the children and other parent;
(i)the effect on the children of spending substantial and significant time with each parent having regard to the parent's current and future capacity to:
(i)implement such an arrangement; and
(ii)communicate with each other and resolve difficulties that might arise;
(j)any views expressed by the children and the weight to be placed on those views;
(k)the mental health and/or special needs of the children;
(l)any mental health diagnosis of the parents and whether such diagnosis impacts on parenting issues and capacity; and
(m)such other issues as the expert considers relevant.
8.The parents shall attend upon the expert at times provided to each parent by the Expert.
9.Each parent shall ensure the children's attendance upon the Expert at times provided to them by the Expert.
10.The Independent Children's Lawyer shall have leave to provide to the Expert by way of instructions:
(a)a copy of this Order;
(b)copies of all documents produced under subpoena, excluding financial documents, leave for such copying to be granted to the Independent Children's Lawyer or her nominee and to be completed at the expense of the court;
(c)copies of all material filed by either party in these proceedings, including any Child Dispute Memorandum to the Court and Orders; and
(d)such further documents as the parties and the Independent Children's Lawyer may agree upon.
11.The parents shall sign all documents and give all consents to allow such an assessment to occur.
Medical Practitioners
12.The parties shall ensure the children’s attendances as advised to the following practitioners:-
(a)Dr D;
(b)Dr E;
(c)F Service; and
(d)any such other medical or psychological treater, as recommended by Dr D.
13.The mother shall advise the applicant father of all medical appointments with Dr D and/or Dr E.
14.Each of the parties shall provide the children with medications prescribed and in accordance with the directions provided with such medication.
15.On a without prejudice basis by the father, the father is restrained from attending such medical appointments that the mother and children attend, but when the mother makes such appointments, she will make one appointment for her and the relevant child, and, a second appointment, contemporaneous to hers, for the father.
16.Without admissions, the mother and father be restrained from:-
(a)denigrating one another or members of the other’s family in the presence and/or hearing of the children or either of them;
(b)discussing the proceedings with the children, and each of them shall do all things necessary on his/her part to ensure that no other person discusses the proceedings with the children;
(c)interrogating the children or either of them in relation to events and or conversations that have occurred in the home of the other parent;
(d)filming the other parent or allowing any other person to do so at any time for the purpose of use in these proceedings; and
(e)cancelling any medical appointments for the children.
17.The parties are at liberty to provide a copy of this Order to all the children’s treating health professionals.
THE COURT ORDERS THAT:
Family Therapy Fees
18.Between now and the time of trial, should the funds in the offset account be exhausted, the father is ordered to pay the fees for family therapy in the first instance, with the mother’s contribution to that, in whole, in part, or nil, to be determined at trial.
Single Expert (Dr C) Fees
19.The father is to pay the remuneration of the expert Dr C in the first instance, with the mother’s contribution to that, in whole, in part, or nil, to be determined at trial.
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
Spousal Maintenance
20.Pursuant to section 74 of the Family Law Act 1975 (Cth) the father is to pay the mother, or as the mother directs in writing from time to time, interim spouse maintenance of $896 per week, with the first payment to be made on or before seven days after the date of this Order and continuing weekly thereafter.
THE COURT NOTES THAT:
A.On a without admissions basis, pursuant to s 68B(1)(c) of the Act, the father is restrained from attending, entering or remaining in the current residence of the children, namely G Street, Suburb J, NSW, and any subsequent residence, unless invited to attend by the mother in writing.
B.With respect to the dual medical appointments referred to in Order 15, the husband will be paying the costs associated with his attendance.
C.It is the intention of the parties and the Court that Dr C will be called to give evidence on Thursday 2 February 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kensit & Kensit has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE JUDGMENT
BRASCH J:
These are my ex tempore reasons. A copy of these Reasons was requested by the parties, I have corrected the reasons from the transcript, but only in so far as correcting grammatical errors and making the oral reasons more amenable to the written word.
The parties agreed that they only required me to give short form reasons. I now do so.
The parties, to their very great credit, have been able to reach terms on a raft of competing applications that were before me this morning, both concerning parenting and property.
Only two matters were left for resolution today, the first being who would pay for Dr C and for family therapy. I have already given reasons and made orders with respect to that. Upon the conclusion of the hearing with respect to parenting, I excused the ICL from further attendance today.
The second matter for me to determine was the wife’s application for interim spouse maintenance, or, in a belated alternate, the payment of a lump sum to her, either as lump sum interim spouse maintenance, or a partial property order, or to be characterised.
It was agreed as a matter of process that I determine the interim spouse maintenance application, and if I was against the wife on that application, that would then leave the lump sum (partial property) issue to be determined.
The husband then indicated he needed an adjournment so he could put on material to meet the case, he would say, with respect to what cash is actually available within the husband’s business to be the source of funds for a lump sum (payment).
The husband consented to other orders sought by the wife: that he pay the mortgage relevant to K Street; and, particular outgoings with respect to specified expenses for that property.
It is plainly just and equitable that the encumbrance and those outgoings be paid. It is in both parties’ interests that that occur. Accordingly, I will make those proposed consent orders.
Consequently, the wife did not press her application for injunctive relief with respect to the property, nor that she be appointed as trustee for sale in the event the husband failed to meet the mortgage referrable to that K Street property.
The applicant wife in these interim proceedings – she is the respondent in the substantive proceedings – is Ms Kensit, born in 1977. I will refer to her as the wife.
The respondent husband in these proceedings - who is the applicant in the substantive proceedings - is Mr Kensit, born in 1976, and I will refer to him as the husband. I mean no disrespect in doing so.
There are two children of the relationship: Y, born in 2011, and X, born in 2008. Final parenting orders were made by consent on 21 December 2020.
I have listed the matter for trial starting 30 January for four days to be in person in Sydney. I will, as I indicated earlier today, make trial directions to facilitate the matter being ready for trial, and discussed with counsel the nature and form of the directions that shall be issued from chambers.
I will also, as I indicated this morning, make an order that the parties are at liberty to approach me, through my chambers, obviously, and we will include that address in the orders, in the event there are any difficulties which might see the trial difficult to continue.
By way of background – and I note that counsel agreed to me giving short-form decisions, so I will provide the barest of backgrounds here – the parties commenced cohabitation in either 2004 or 2005. In 2007, they married. I have already given X and Y’s dates of birth.
On 19 August 2020, the parties separated under one roof until late November 2020, when the mother vacated the K Street property with the children to rental accommodation in Suburb J.
Both boys have and have had health challenges. Given, as I have said, the parties’ consent to me giving short-form reasons for ultimately what is an interim spouse maintenance application, I need not say any more about that at this time.
On the same basis, I do not propose to traverse the parties’ acquisition of property during the relationship. I have read the extensive chronologies that are before me in the parties’ case outlines, and observe that I have taken all of that detail into account, as may be relevant or may simply inform the background to this litigation.
On 6 November 2020, the parties attended mediation and resolved the parenting arrangements on a final basis by consent. However, both parties agitate for revisiting of that order. Rice & Asplund (1979) FLC 90-725 has not been or is not raised as a bar (to those proceedings).
On 15 February 2021, the father started proceedings for final property orders. On 8 November 2021, orders were made by consent providing, amongst other things, for the parties to repay the father’s parents the sum of $100,000 and that, pending further order, the husband shall meet all monthly mortgage payments for the K Street property. The parties are in dispute about the compliance or non-compliance with that order, but I cannot resolve that today.
In early 2022, the parties divorced.
The wife relied upon the following documents:
(a)her further amended response to an initiating application filed 17 February 2021;
(b)her application in a proceeding relevant to what is before me today filed 25 April 2022; her affidavit of 26 April 2022;
(c)her financial statement of 11 July 2022;
(d)from her tender bundle, pages 206, 192, 193, 194 and 145 to 158. Those specific pages collectively became the wife’s exhibit 2. (The wife’s exhibit 1 arose in the parenting proceedings); and
(e)the wife also filed a very helpful case outline and the required costs notice.
The husband relied upon the following documents:
(a)his further further amended initiating application filed 31 March of this year;
(b)his response to an application in a proceeding filed 30 May of this year;
(c)his affidavit of 30 May;
(d)his financial statement filed this 6 July 2022;
(e)from his tender bundle, page 7, which became the husband’s exhibit 1; and
(f)The husband also filed a very helpful case outline and the required costs notice.
Plainly, on matters of evidence, the standard of proof is the balance of probabilities. Section 140 of the Evidence Act1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for me in reaching my decision to refer to every piece of evidence or argument presented. I refer there to Whisprun Proprietary Limited v Dixon (2003) 234 CLR 492, Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case [62].
I turn now to the legal principles invoked in an interim spouse maintenance application. Those principles were not in dispute before me. Section 72 of the Family Law Act 1975 (Cth) (“the Act”) sets out the following:
72 Right of spouse to maintenance
(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) 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 subsection 75(2).
Of course, the right to maintenance arises if and only if the other party is unable to support herself or himself adequately. I highlight the adverb “adequately”. The interpretation of that word imports a standard of living that is reasonable in the circumstances – Nutting & Nutting (1978) FLC 90-410.
Determination of the question whether an applicant for spouse maintenance can support herself or himself adequately is not to be determined by some fixed or absolute standard, but by reference to the matters in section 75(2). See, for example, Mitchell& Mitchell (1995) FLC 92-601 at 81 995.
The Full Court of the Family Court in Brown & Brown (2007) FLC 93-316 summarised the principles with respect to “adequately” at paragraph 161 as follows:
·It is not to be determined according to any fixed or absolute standard.
·The idea that “adequate” means a subsistence level has been firmly rejected.
·Where possible, both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
·In some circumstances, it may be reasonable for the parties to live at a higher standard than previously enjoyed.
·It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he or she is unable to support him or herself adequately.
·However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
Section 74 of the Act sets out the following:
74 Power of court in spousal maintenance proceedings
(1) 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.
Reference was made particularly by counsel for the husband to the decision of Hall v Hall (2016) 257 CLR 490, and it is useful to recall what the High Court there said at paragraph 8:
A court determining an application for an interim order under section 74(1) cannot make such an order without finding on the balance of probabilities on the evidence before it, that the threshold of section 72(1) is met having regard to any relevant matter referred to in section 75(2).
It goes on:
…“the 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 section 74(1) of the ordinary standard of proof in a civil proceeding now set out in section 140 of the Evidence Act 1995 (Cth)–
I have already referred to and have extracted section 140 of that Act above.
As was also uncontroversial, the Full Court in Bevan & Bevan (1995) FLC 92-600 outlined four general principles at 81,982 that an award or the consideration of an award of spouse maintenance requires:
1.a threshold finding under s 72;
2.consideration of s 74 and s 75(2);
3.no fettering principle that pre-separation standard of living must automatically be awarded whether the respondent’s means permit; and
4.discretion exercised in accordance with the provisions of s 74 with “reasonableness in the circumstances” as the guiding principle.
Of course, section 74 ultimately requires me to provide – make an order which I consider to be proper.
I turn now to the section 72 threshold. It was submitted very firmly and strongly on behalf of the husband that the wife has not made out or fails to meet the section 72 threshold on the basis that she is capable of supporting herself adequately “by reason of age or physical or mental incapacity”, as that subsection goes on to say, “for appropriate gainful employment”. The gist of the submission was the wife has the capacity and has not exercised it over the last two years.
But, of course, as section 72(1) says, there is more to the threshold in section 72 than just “by reason of age of physical or mental incapacity for appropriate gainful employment”. Whether the wife actually has under-utilised earning capacity is not a matter I can determine today. I have no doubt it will be a live issue before me at trial. I can also not advance the matter whether the wife removed in excess of $10,000 from a safe.
Reference is also made as part of the threshold issues that she has received funds from the L Property, and she received a part property payment, which, I note, the husband seeks to be repaid in his final orders in December 2020.
Her wages from the family business ended in January 2021 and, looking at the husband’s submissions at 7.3, which I have no reason to doubt, were modest. However, the reality is the wife’s income is income-tested benefits and other government-provided moneys.
Until term four last year, she was the primary carer of the two boys, whom I have already acknowledged have considerable health challenges. It also seems, looking at the wife’s exhibit 1, that she has had considerable involvement with the boys’ attendances upon many and varied health professionals. I acknowledge the husband has too, but it is the wife who must meet the threshold in these proceedings.
By virtue of the interim orders I have made this morning with respect to parenting, albeit, and I acknowledge, on a without-admissions basis, the husband will not be attending upon health professionals at the same time as the mother and children.
The natural corollary of that is that it will fall to the mother to take the children to and from and attend such appointments. The father is of course at liberty to go in his own time or at an appointment made by the mother, but it is the mother who will be taking the children.
The mother says she has applied for jobs and been unsuccessful. The father says or the husband says her affidavit in that regard is self-serving. But, quite appropriately, Mr Todd accepts, as he ought have done and did do, the reality is that the wife comes before me today as a person supported by, save for $6 in dividends, the government, through a combination of JobSeeker, Family Tax A and B, Rent Assistance and Energy Supplement, and a Pharmaceutical Allowance. She says she has borrowed money from her parents to meet shortfalls.
Even if the mother could get a job, as is the corollary of the submission that is made about threshold, I have no reliable evidence on what that might be and what she might earn. For these interim purposes, I accept what she says that it has been 13 years since she worked in hospitality. On 18 January 2021, she was dismissed as an employee of the company run by the husband. Prior to that, looking at her resume, which forms part of exhibit 2, she had worked in the service industry for almost three years between 2015 and 2018.
As also identified in the wife’s exhibit 2, she has undertaken a range of courses, some of which may well have been of benefit to the children, but, nevertheless, those courses indicate to me that she has not simply sat on her hands, failing to take any steps to advance her prospects of employment.
I am satisfied the wife has established that she is unable to support herself adequately by a number of reasons set out in section 72. First of all, by having the care and control of the children of the marriage. I accept that is on a week-about basis, but she still nevertheless has that care and control of the children of the marriage. I also find that she satisfies the threshold by reason of her present incapacity for appropriate gainful employment.
Even if I am wrong on both of those, I am satisfied that, in the circumstances of the children’s health and the mother’s lack of employment outside of a family structure for some years, she is unable to support herself adequately, these being other adequate reasons as provided for in subsection (c).
Insofar as section 72 requires me to take account of the relevant matters under section 75(2), in reaching those views, I have had regard to those matters in section 75(2) which the parties’ submissions inferentially touched upon, in particular 75(2)(a).
The parties are in their mid-40s. Nothing really turns upon that, other than each have the opportunity for productive years of income-earning or earning potential into the future. Looking at the mother’s CV, it is more probable than not that she will have to retrain, as she indicates.
Section 75(2)(b). I have already given reasons for the mother’s capacity right now for gainful employment or not. I will deal with the husband’s capacity under the specific capacity consideration later in these reasons.
It was said that the mother has, still looking at 75(2)(b), the financial resource of her parents. On an interim basis, I agree with the submission that was made for the wife that this is in the form of a loan and is thus not a financial resource. In any event, even if that were right, as Mr Todd correctly and appropriately accepted, the maternal grandparents do not have an obligation at law to support their adult daughter. I also note that, when looking at income and income-earning ability, the father lists the mother as “unemployed” in his further further amended initiating application.
Section 75(2)(c), care and control, whether either has party care and control. I have already addressed this matter.
Subsection 75(2)(d) and (e), the commitments of each that are necessary to support himself or herself and a child. As I summarise (2)(d) and (e), no specific submissions were made about this, save that, obviously, each parent has obligations to support themselves, and I note that the husband pays child support. Curiously, the wife’s financial statement lists this in the sum of $253 a week, whereas the husband says $320. There is some suggestion that that is being finalised. No doubt I will hear about the outcome of whatever is going on with the child support agency at the trial.
Subsection 75(2)(f) is, of course, about pensions, allowances. I have already mentioned what is provided, the allowances provided to the wife.
Subsection (2)(h), the extent to which payment of maintenance might increase the earning capacity of that party. The wife speaks of retraining, but gives me no evidence of what that might be or when. It is not a matter that assists her.
Subsection (2)(j), again, is another maintenance one, 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. In the husband’s further further amended initiating application, and doing the best I can to understand the property orders he presently seeks, it seems he says the wife ought receive 42 and a half per cent of the net equity of the Suburb J property, less the $75,000 paid to her as a partial property (settlement). There is also the proposal that there is a super split to her and that she keep other items of personal property.
From that, I can infer the husband accepts the wife has made some forms of contributions to the acquisition, conservation and maintenance of property of both of them or either of them. Accordingly, that is a factor I take into account, along with all of the other 75(2)s that I have mentioned.
Finally, subsection 75(2)(na) is another one that deals with child support, which I have already made reference to.
I now turn to the gravamen, really, of what is the interim spouse maintenance claim, what we sometimes shorthandedly refer to as calculating the needs and calculating the capacity. I have already found that the wife meets the threshold for the reasons given.
I look now to the wife’s reasonable needs. I am required by section 75(3) of the Act, and as was accepted by both counsel, to disregard income-tested pensions and the like. The wife’s income, then, is the dividends of $6. I have removed the child support amount she receives from the husband, consistent with the discussion I had with counsel about Stein v Stein (2000) FLC 93-004 (“Stein”), so we have income for the wife of $6.
I have had regard to her expenses in her financial statement and all of the submissions that have been made. I include as her reasonable expenses the following:
(a)Rent at $600 a week.
(b)I have excluded the rates, because the husband will be paying those now.
(c)The mortgage too I have excluded, because the husband will be paying those, and that was appropriately conceded or accepted by Mr Givney.
(d)The health insurance. There are lines of authority which say I should or I could apportion costs as between what is referrable to the wife and what is referrable and exclude that referrable to the children. Stein says as much, as do other authorities. I did consider the $42 a week the wife claims for health insurance. I did consider allowing only one-third of that, that being mother, two children, one-third, but I have concluded it is proper to allow the wife the same amount as the husband. Therefore, I will allow $42.
(e)I have included the contents insurance ($9).
(f)I have taken both parties’ credit cards out, as I discussed with both counsel. I cannot be satisfied I would not be doubling up with part N with their day-to-day living expenses, so I have made no allowance for the Visa there.
(g)And the part N – I can only look, of course, as was accepted by both counsel, at the “for you” column, as both counsel accepted, consistent with Stein. There was challenge to petrol and repairs, but I am not going to get involved in the minutiae of those. I do note that the wife, though, took issue with the husband’s $20 for his holidays, and I propose, given how soon the trial is, to remove the allocation each party claims for holidays, so the wife’s $256 becomes $251, taking out her allowance, her claim, if you will, for holidays, which was $5.
So that leaves me then with reasonable needs of $902. The wife’s income is $6, of course, less the – sorry. I think I said income expenses – less reasonable expenses of $902. That leaves me with reasonable weekly needs on the part of the wife of $896.
I now turn to the husband. His income – there will no doubt at trial be made much of what the husband has actually earned, but I am looking at the husband’s financial statement and find I cannot make any decisions, whether there is consistency or inconsistency between his BAS statements and what he swears to in his financial statement. His income there is listed gross at $3015 a week.
I now go through the same process of expenses, examining reasonableness of expenses, as I did for the wife.
(a)The tax is $890.
(b)The rates are $99.
(c)He claims health at $42. And I have given a similar amount to the wife.
(d)Home and contents at $43.
(e)I have taken the husband’s Visa card expenses out as well. It was accepted by counsel that ran the real risk of double-dipping when I then look to the part Ns.
(f)I have taken the husband’s child support out, as I have done for the wife. They cancel each other out, because I am looking at spouse maintenance.
(g)The part N “for you” – I have taken off the husband’s holidays at $20, as the wife urged me to do and I have done for her, and I have also removed the legals of $500 a week, as Mr Todd very appropriately proposed I ought do. That leaves me a revised figure for part N “for you” of $358.
Adding up those expenses, if you will, $890, $99, $42, $43 and $358, then gives me expenses of $1,432. I then subtract that from the husband’s income of $3015, and that leaves me with a surplus of $1,583.
Even if I am wrong on excluding what the husband pays in child support, be it the $253 or the $320, even if that ought be included in his expenses, the maths is simply that the husband still has a surplus.
I acknowledge that the husband will meet the balance of Dr C’s report in the vicinity of about $8,250, but I am confident that his excess of income over expenses – through that he can comfortably cash flow that payment, similarly for any costs of the family therapy, once the overdraft is exhausted. With respect to both matters, though, Dr C and family therapy, the wife’s contribution to that is of course a matter which will be the subject of dispute at trial.
On these calculations, it is not necessary for me to traverse what the husband can access or not from his business, nor do I need to adjourn the matter so a lump sum amount can be considered.
However, having found the husband has capacity, I find it proper to make an order that until further order, the husband pay the wife the sum of 896 per week, that being her reasonable needs, with the first payment to be made on or before seven days after the date of this order and continuing weekly.
I will not make the CPI order sought by the wife, as this matter will come back before me for final hearing on 30 June.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 28 July 2022
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