Lagow & Lagow (No 2)
[2023] FedCFamC1F 410
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lagow & Lagow (No 2) [2023] FedCFamC1F 410
File number: BRC 4245 of 2020 Judgment of: BAUMANN J Date of judgment: 29 May 2023 Catchwords: FAMILY LAW – SPOUSE MAINTENANCE – Where the wife is unable to adequately support herself – Where the husband has a capacity to pay spouse maintenance – Order for the husband to pay the wife spouse maintenance until the wife re-partners or the wife secures employment subsequent to a permanent visa being granted to her Legislation: Family Law Act 1975 (Cth) ss 72, 75, 83 Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 12 May 2023 Place: Brisbane Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Ms D Wardle 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 May 2023
THE COURT ORDERS:
1.That the husband’s Application in a Proceeding filed 9 February 2023 be dismissed.
2.That the husband pay to the wife spouse maintenance of $120 each week each Monday commencing 5 June 2023.
3.That the operation of Order
12 shall cease when either:(a)the wife re-partners; or
(b)the wife secures full-time employment subsequent to a permanent visa being granted to the wife.
4.That by 31 August in each year, the husband provide to the wife a copy of his Income Tax Return for the prior financial year whilst the spouse maintenance order is in operation.
IT IS NOTED:
A.That these Orders have been amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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).
REASONS FOR JUDGMENT
BAUMANN J
The wife, Ms Lagow (aged 42 years) seeks an order for periodic spouse maintenance payable by the husband, Mr Lagow (aged 43 years) in an amount of $145 per week, with such order to remain operative at least until the wife re-partners or the wife secures employment in accordance with a permanent visa with unrestricted employment entitlements.
The Respondent husband opposes an order being made because:
(a)the wife has not produced evidence that she is unable to adequately support herself (s 72 of the Family Law Act 1975 (Cth) (“the Act”); or
(b)if the Court finds the wife is unable to adequately support herself, then the husband asserts he is not reasonably able, having regard to relevant matters under s 75(2) of the Act, to pay spouse maintenance.
The husband says no order should be made and further that the interim order made by the Court on review on 29 June 2022 should be discharged.
RELEVANT SHORT BACKGROUND
Having met and commenced a relationship in Country B, after their marriage and the birth of their two sons X (born in 2009) and Y (born in 2014), by November 2015, a decision for the family to live formally in Australia (at least initially to allow the father to undergo tertiary study which he completed in 2020) resulted in them all being present in Australia from late 2015.
Although the husband’s initial visa application involved the wife, since the parties separated (under one roof) in July 2017, the husband has secured permanent residence for himself and the children, in Australia. The wife elected not to allow herself (if it were even possible post-separation) to be included in the husband’s visa application – again totally consistent with her desire to return to her native Country B. As a result, at the current time, the wife remains in Australia on a Bridging Visa Class WA101 whilst her substantive visa application (for a protection visa) is being assessed. The wife’s position is that if her visa to remain in Australia is refused, she may have to reply upon the Minister exercising discretion to allow her to remain. This process could take at least three years from now.
The uncertainty of the wife’s capacity to remain in Australia was a major issue which caused the wife to pursue an application that she be permitted to relocate to Country B with her sons. With the benefit of two family reports (in August 2020 and June 2022) which recorded the children’s wishes to remain living in Australia, the mother, in an extremely difficult decision, conceded that the children should remain living in Australia, and whilst she continues to live here, by virtue of final consent parenting Orders made 12 December 2022, the children live with the parents in an almost an equal shared care regime (eight nights with the father and six nights with the mother).
I will make findings on the evidence adopting the statutory pathway earlier identified.
IS THE WIFE ABLE TO ADEQUATELY SUPPORT HERSELF?
The wife is a highly educated and resourceful person who I assess is doing her best to support herself in an extremely difficult situation. She works as an education professional, on contract, and has secured 20 hours employment each week. Her most recent payslip for the period ending 23 April 2023 reveals a gross income of $1,248.47 a fortnight. After a deduction for tax ($128) and a deduction for superannuation ($59.97) – her nett income is $1,062.50 or $531 a week.
The husband asserts that the deduction for superannuation (although modest) is a voluntary payment by the wife – akin to a salary sacrifice. I am not satisfied on the evidence that the deduction is elected by the wife – she needs every cent she can get. More likely than not, and I find, the deduction arises from her terms of employment – noting that the said payslip reveals an employer superannuation of $152.93 a fortnight – or approximately 12.75% (above the statutory minimum).
In circumstances where the wife, because of her visa, has no entitlement to any Centrelink benefits (which would be ignored for spousal maintenance purposes anyway) or Medicare benefits and where she pays rent of $400 a week (for a very modest apartment), I am satisfied the wife is unable to adequately support herself unless, as the husband contends, she has an earning capacity to improve her income that she is not currently exercising.
I am not satisfied the wife can earn more money. Whilst the husband points to other jobs the wife might be able to secure (including at schools), the wife is entitled to continue her role as “a parent” (see s 75(2)(l)), and the hours that would be involved in the other duties before and after school would significantly erode her availability to care for her school-aged children (including during school holidays).
To the extent that the husband points (in the wife’s most recent Financial Statement filed 5 May 2023) to her accumulated savings of $6,408 – the wife explains, and I accept, that her decision to save a small sum each week to accumulate savings, allows her to have the capacity to meet the estimated costs of a migration agent retained to secure her permanent visa (paragraph 65) and to pay airfares to Country B if her right to remain in Australia is refused and she faces deportation. In that sad event, the wife gives details (at paragraph 66) of the likely costs for returning home to Country B. The wife does not suggest she can afford to return to Country B to spend time with her family for a holiday.
I am comfortably satisfied the wife has established she is unable to adequately support herself.
WHAT ARE THE WIFE’S REASONABLE NEEDS?
A claim for spouse maintenance is not a claim for child support. Somewhat surprisingly, when the child support agency assessed the parents initially, the wife was assessed as having a liability to pay the husband $96.71 a month (paragraph 27), however when more information was provided, the assessment was reviewed and the husband was assessed to initially pay to the wife $250 per fortnight – which recently increased to $310 per fortnight ($155 per week).
The wife estimates the children’s expenses at $180 a week excluding an allowance for accommodation. I regard the wife’s estimate as reasonable.
As to her weekly personal expenses, they appear on her evidence as follows:
Food $70 Household supplies $20 House repairs $5 Electricity $25 Internet $9 Telephone $7 Fares/car parking $50 Clothing/shoes $20 Medical dental $20 Medical insurance $13 Chemist $10 Gifts $15 Hairdressing etc $10 Rental $400 $674 Less nett income $531 Deficit $143
Clearly, the only way the wife has been able to meet the deficit is by utilising the interim spouse maintenance payment of $145.00.
CAN THE HUSBAND AFFORD TO PAY THE WIFE $145 PER WEEK OR A LESSER AMOUNT?
The husband says he is unable to continue to pay $145.00 a week to the wife or any lesser sum.
I accept his evidence that his gross income working as a permanent full time employee is $95,000 per annum. He had for a period, which has now ceased, a secondment to higher duties, but has now returned to his standard employment wage. The husband, who after obtaining his permanent residency has subsequently obtained Australian citizenship, has no restrictions on his ability to work, and the wife points to his visa initially being granted on the basis of his “distinguished talent” (paragraph 77).
I accept in all respects he is more “employable” than is the wife, but he also is entitled to be recognised as a parent who sees parenting the children as a core responsibility. He was not seriously challenged on whether he is underutilising his earning capacity at this time, noting his extensive tertiary qualifications.
On the basis of his evidence, I find his nett income to be $1,279, being:
Gross weekly income $1,827 Less income tax $448 $1,279
He pays rent of $465 per week, which is for a slightly superior house than the wife’s modest apartment – but not significantly greater than the wife’s rent of $400 per week.
On this basis, the husband’s nett income after income tax and rent is $814.
I find his reasonable personal expenses to be as follows:
Food $70 Household supplies $20 Electricity $18.60 Internet $15 Telephone $4 Car expenses $70 Clothing $15 Medical $7 Chemist $5 Gifts $15 Child support $155 Car registration $15 Car insurance $23 Dog expenses $20 Total $452.60
This leaves approximately $361.40 to pay spouse maintenance and meet other expenses of the children when in his care.
It was not explained why the husband, renting accommodation, has a liability for “rates and unit levies” of $9 per week; why his personal food expenses should be greater than the wife’s; on what basis (as he has a car), he needs “fares/car parking” and why the children’s pocket money, overdraft fees and internet have a higher priority than his legal duty to maintain his wife, if he is able to do so.
The husband’s estimate of “children’s” expenses of $541.65 per week includes food of $200 a week, when the children are only in his care for eight out of 14 days. I regard the mother’s estimate for the children’s food when in her care of $130 as more reasonable (for six days a fortnight). I allow $160 a week for the children’s food. The husband claims for the children’s costs (which the wife simply cannot afford at the husband’s levels when the children are with her), for example weekly:
·Children’s activities at $35; and
·Child minding at $31,
cannot take complete priority over his duty to his wife.
The husband claims $104 per week (or $5,400 per annum) for the children’s education at a public school, but he was not the subject of cross examination on that claim, which I infer means the wife accepts it. She is not able to make much of a contribution to school expenses, although I accept both parties do have similar values around the importance of education. The parties’ tertiary qualifications in Country B (and now for the husband in Australia), attest to that focus.
CONCLUSION
Although, if the wife had capacity to earn more money, I accept her children would get some additional support in her home, I am satisfied she has little to spend at the end of each week for any luxuries at all.
These are both loving parents who want the best for their children. However, the wife is ultimately living on the poverty line and remains in Australia against her desire but in the best interests of the children. All the child support she receives goes to the children’s needs in her home when they are with her.
The examination of the husband’s expenses above reveals that with a superior gross income (around three times that of the wife), he meets more of the children’s expenses, as he is able to do so.
The Court accepts that most parents sacrifice some of their limited means to ensure a reasonable standard of living for their children. Expenses inevitably fluctuate from week to week and calculating the husband’s capacity, after accepting his duty to support his children equitably, to meet his legal duty to maintain his wife, is not a precise calculation.
He says his capacity to pay maintenance previously was possible because of the increased income from his secondment. I accept that additional income assisted him – as well as the children.
Although once an order is made for spouse maintenance, it is capable of review when still operative, if there is a change in circumstances (s 83 of the Act), these parties need finality. If the husband’s income varies upwards, the liability for child support may increase.
I find that the husband does have the capacity to pay spouse maintenance at a level of $120 per week. I intend to so order, with the operation of the order ceasing when either:
(a)the wife re-partners; or
(b)the wife secures full-time employment subsequent to a permanent visa being granted to the wife.
Furthermore, to enable the wife to be aware of any changes in her former husband’s income, I will order that the husband shall, by 31 August in each year, provide the wife with a copy of his Income Tax Return for the prior financial year. I accept that the Child Support Agency (“CSA”) has an obligation to review the assessment of child support payable by parents regularly, however the wife’s financial situation is, in my view, so dire, she should not have to wait until the CSA completes its assessment before contemplating any likelihood of an increase in spouse maintenance or, for that matter, child support.
I make the orders as set out at the commencement of these Reasons.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 29 May 2023
0
0
0