Lagow & Lagow
[2022] FedCFamC1F 451
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lagow & Lagow [2022] FedCFamC1F 451
File number(s): BRC4245/2020 Judgment of: BAUMANN J Date of judgment: 29 June 2022 Catchwords: FAMILY LAW – REVIEW OF REGISTRAR’S DECISION – where the Applicant seeks to reduce the sum of spouse maintenance payable to the Respondent – Orders made reducing the sum of spouse maintenance payable Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 21 June 2022 Place: Brisbane The Applicant: Litigant in person Solicitor for the Respondent: Legal Aid Queensland ORDERS
BRC 4245 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LAGOW
Applicant
AND: MS LAGOW
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
29 JUNE 2022
THE COURT ORDERS:
1.That Order 1 of the Orders dated 8 April 2022 be discharged.
2.That the Applicant pay to the Respondent spouse maintenance of $145.00 each week, with the first payment to be made on or before 4.00pm on Monday, 4 July 2022.
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 Lagow & Lagow has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
BAUMANN J
The Application before me today is a review of Senior Judicial Registrar Thiele’s Order made on 8 April 2022, where the Senior Judicial Registrar made an Order that the husband Mr Lagow pay to the Respondent wife Ms Lagow, spouse maintenance of $200 each week.
On 27 April 2022, the husband filed an Application for Review which was listed before me for hearing on 21 June 2022. I explained to the unrepresented husband, the wife having the benefit of assistance from solicitor advocate Ms Melville, that a hearing before me is a hearing de novo. It is not an appeal against the decision of the Senior Judicial Registrar, but rather a new hearing based on the evidence that the parties relied upon.
The parties confirmed that they relied upon the earlier evidence before the Senior Judicial Registrar, and additionally, the husband filed and relied upon an affidavit filed 27 April 2022. The Application for Review filed by the husband seeks an order in the following terms:
1.The respondent, [Mr Lagow], is to pay to the Applicant [ Lagow], maintenance of $125.00 each fortnight on the day following his next salary payment.
I raised with the Respondent husband, and he agreed, that although he says in reality it will be difficult, he can afford $125 per week for spouse maintenance. As a result, it seems clear that the threshold test created by Section 72 of the Family Law Act (Cth) (“the Act”) has been satisfied, namely that the wife is unable to adequately support herself. Once that threshold has been met, then the Court’s obligation is to consider the matters set out in s 75(2) of the Act so far as relevant, and in this case, as the submissions make clear, it was a question of what were the needs of the wife for spouse maintenance (not child support) and the capacity of the husband to meet those needs.
In that regard, by way of context, parenting proceedings are still pending before the Court, but the current arrangements for the parties’ two children, now aged twelve and eight, are, as a result of Orders made by a Judge of the Federal Circuit Court of Australia (as it was then known) on 10 September 2020, namely week about care with changeovers on a Monday. On the evidence before me, I make the following findings.
WIFE’S NEEDS
I accept that the wife works as a part-time teacher’s aide and that her current gross income is comprised of the following components (see Exhibit 1): basic fortnightly pay $1,183.68, less income tax $112, less salary sacrificing $59.80. This gives a current net fortnightly income of $1,012.50. Because the wife makes a salary sacrifice of $59.18 a fortnight, her employer appears to pay an employer contribution over the required statutory limit to a level of $150.92 a fortnight. The husband says that, for the purpose of determining the wife’s needs, I should bring into account, as income available to her, $1,062 a fortnight approximately, because the salary sacrifice is a discretionary contribution. I agree with that submission.
In respect of the wife’s expenses, I find that her claim of expenses of $172 for the children per week (from Part N) and a contribution to rent are reasonable. In respect of her reasonable needs, the wife says, and I accept, that her current accommodation is a one bedroom unit which is inadequate for, and quite different to, the level of accommodation the husband has available to him when the children are in his care. In determining the wife’s needs, therefore, and noting that the husband says his weekly rent is $410 per week, it would be reasonable, in my view, to allow the wife the same allowance for rent for herself. It will of course mean that there would be a further payment that she would need to find if she wishes to change accommodation for the benefit of the children, as is her desire.
On this basis, I estimate the wife’s needs are $377 per week. The wife’s capacity, from her income of $531 per week, to meet the needs of the children is, of course, increased by the child support she receives from the husband of $131 per week. If I allow for the expenses she claims for the children, which of course must include an allowance for the increased rent, then again, I would say that the wife’s claim of $200 per week is reasonable if the husband can afford to pay it.
THE HUSBAND’S CAPACITY TO PAY
The husband’s income set out in his Financial Statement relied upon is $1,826.92 a week. I would not include his government benefits which are offset by his payment due to Centrelink by way of an overpayment previously made by Centrelink to him. Therefore, his available gross income of $1,826 must make allowance for the following expenses for his support and obligations:
(a)Tax, $448 a week;
(b)50% of rent, say $205 per week;
(c)Rates, $4 per week;
(d)Car expenses, $34 per week;
(e)Child support, $131 per week;
(f)His claimed living expenses, $273.39, say $1095 per week.
This leaves an excess available to him towards the extra rent payment (when the children are in his care) and the needs of the children of $730 per week. I estimate his expenses at $373.39 (from Part N). I reduce the amount claimed of $805.39 by $528 being an obligation he has to pay former solicitors’ legal expenses. He has not made those payments to date, and I do not regard that as the priority over interim spouse maintenance, particularly considering the circumstances of the wife and her relatively low income.
WHAT AMOUNT SHOULD BE PAID?
As explored with both parties in the hearing before me, neither party can afford to maintain the children’s expenses at the level that they need it if the wife’s claim for $200 per week spouse maintenance succeeds. It would invariably mean that the wife would be required, in the absence of that payment, to continue to meet limited expenses of the children with child support from the husband being regularly paid. My impression is that these are two committed parents who want the best for their children, but that the husband does not accept, necessarily, that the wife needs the money from him, and the wife believes she requires a share of the husband’s – obviously more substantial – gross income than he is prepared to offer.
I am persuaded that it is appropriate that the wife be put in the position to seek to obtain a better property for her and the children to live in. If this requires, to some degree, some reduced capacity to meet expenses for the children when they are in the care of the father, then, in my view, that is a reasonable apportionment between spouse maintenance and his obligations (not to pay child support, which is assessed by the Child Support Agency), but rather when the children are with him and he has some discretionary choices as to what he pays. In the circumstance of this case, I form the view that the husband should pay to the wife the sum of $145 per week.
I accept that being obliged to do so will mean he will need to find some savings in what he spends when the children are with him but not a significant reduction over what he believes he is now able to afford to pay the wife (of $125 per week). In the wife’s position, that extra payment will not meet her complete needs, but I form the view that, frankly in this case, the husband’s income is not sufficient to meet those needs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 29 June 2022
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