LAWRENCE & LAWRENCE

[2015] FamCA 352

FAMILY COURT OF AUSTRALIA

LAWRENCE & LAWRENCE [2015] FamCA 352

FAMILY LAW – PROPERTY – INTERIM – SPOUSAL MAINTENANCE – Where the wife seeks an order for spousal maintenance –Where the husband claims that the amount sought is unreasonable – Where the husband asserts that the wife has a capacity for employment – Where there is insufficient evidence in relation to the wife’s capacity to earn an income – Where the wife’s capacity to earn is tempered with the wife’s need to care for the three children – Where the children are under regular medical and psychological care – Where the husband claims he does not have any capacity to pay spousal maintenance – Where the husband has substantial liquid capital available to him – Where the court orders the husband to pay the wife spousal maintenance – Where the wife seeks orders for costs – Where each party had partial success – Where each party is to bear their own costs.

Family Law Act 1975 (Cth) 72(1)

Family Law Rules 2004 (Cth) r 5.09

APPLICANT:

Ms Lawrence

RESPONDENT: Mr Lawrence

FILE NUMBER: SYC 8138 of 2014

DATE DELIVERED: 13 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 13 & 30 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell

SOLICITOR FOR THE APPLICANT: Macpherson & Kelley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders

1. That pending further Order of the Court, the husband is to pay to the wife $580 per week by way of spousal maintenance with the first payment to be made within seven (7) days of the date of these Orders.

2. That each party is to bear their own costs of the application for  spousal maintenance.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8138  of 2014

Ms Lawrence

Applicant

and

Mr Lawrence

Respondent

REASONS FOR JUDGMENT

Introduction

1. In an amended initiating application filed on 5 March 2015 Ms Lawrence (“the wife”) sought the following orders against Mr Lawrence (“the husband”):

   1.That pending further Order of the Court, the Husband pay:

   1.1      The monthly mortgage instalment payments for the mortgage     from the parties to Commonwealth Bank of Australia         (“the CBA”) secured over the [Suburb B] property as and         when they fall due;

   1.2All utilities bills and Council rates for the [Suburb B] property as and when they fall due.

   2.That pending further Order of the Court the Husband pay to the Wife spousal maintenance of $665 per week.

2. The husband is continuing to meet the obligations in relation to the monthly mortgage instalments and continues to pay all utilities, bills and council rates for that property.  Therefore, it is only necessary to consider the application for spousal maintenance.

3. The matter came before me in a duty list on 9 March 2015.  There was not sufficient time in that list to hear the application for spousal maintenance.  The application was stood over to 13 April 2015.  On that day counsel for the wife was not able to appear due to illness and the parties agreed to proceed by way of written submissions.

4. Contrary to r 5.09 of the Family Law Rules 2004 (Cth) the wife relied on five affidavits sworn by her. The court’s attention was not directed to any particular part of those affidavits although significant parts of them are not relevant to the application before the court.

5. The number of affidavits did not assist in attempting to readily identify what was claimed by the wife as her reasonable expenses. 

6. The wife is presently aged 49 years and the husband aged 48 years.  They married in 1989 and separated on 6 December 2014.  They have three children aged 15, 12 and 9.  All of the children live with the wife.  She and the children reside in the former matrimonial home with the husband paying the mortgage expenses and the utilities of the property.  The husband also pays the wife $890 per week in child support.

Application for spousal maintenance

1. Section 72(1) of the Family Law Act 1975 (Cth) (“the Act”) provides:

   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).

   (2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.

2. The wife asserted that her reasonable expenses were $647 per week.  This figure was calculated by the wife taking weekly expenses for the entire household and apportioning them between herself and those for the children.  Of course, she is only entitled to spousal maintenance for the former.

3. The husband challenged the reasonableness of the expenses yet the figures the wife has claimed for food, household supplies, entertainment and hobbies, holidays, dry cleaning and gifts were similar to or less than the husband’s expenses for the same items.  It is difficult, therefore, for him to successfully assert that they are unreasonable. 

4. Although the husband pays for the telephone landline at the residence of the wife and the children, the wife has her own mobile telephone.  The cost of $16 per week for that does not seem unreasonable. 

5. That leaves three particular issues to resolve – gardening, cleaning and counselling. 

6. The evidence is that the husband used to maintain the lawns at the former matrimonial home as well as the ten foot high hedges.  The wife has annexed a quotation from a gardener who will charge $1 650 per visit to trim the hedges.  It is not unreasonable for the wife, who has never done this, to engage someone to do it but, in the circumstances where one income now has to provide for two households, the hedges will have to be managed to be trimmed annually.  That therefore is $31.73 per week.  The wife has never attended to the lawn mowing which will cost $18 per week.  Thus a reasonable cost for the gardening and hedge trimming is $49.73 per week.  The wife allocates one quarter of this to herself and three quarters to the children.  I shall do the same. The amount to be ascribed to the wife as her reasonable expenses of gardening is approximately $12 per week.  I should add that the husband cannot undertake these tasks because parenting orders in place preclude him from attending the premises.

7. Although the parties when living together had employed the services of a cleaner it is obvious that with one income now servicing the two households the parties’ standards of living will alter and the parties must adapt. The wife is presently unemployed.  I do not see any reason why the wife could not attend to the cleaning of the house.  Similarly I do not see why pool cleaners need to be employed. Whilst the wife has not done this before it is not the most difficult of tasks.

8. There is no real basis upon which the court can make a determination as to what is a reasonable figure for clothing as the parties gave limited evidence on this issue.  The husband deposes to the wife having a large wardrobe of clothes.  His own clothing expenses are asserted by him to be $34 per week.  I shall adopt the figure of $50 per week as reasonable expenses for clothing on the basis that it seems accepted that the wife’s clothing expenses have previously been higher than the husband’s. 

9. This effect of these findings is that in the wife’s list of expenses, gardening is to be reduced to $12 (a reduction of $8).  The clothing expenses to be reduced to $50 (a reduction of $27) and the claim for cleaning of $32 per week is to be removed. The weekly expenses of $647 will be reduced by $67 per week. This leads to the finding that the wife’s reasonable weekly living expenses are $580. 

10. The husband asserts that the wife has the capacity for employment.  She is a university lecturer by occupation and a trained health professional.  In 2013 and 2014 she worked as a lecturer at the C University on a part-time basis.  She has been working on a PhD since approximately 2012. 

11. That evidence clearly indicates a capacity for employment.  Unfortunately, the husband’s evidence did not descend to such particulars as the hours that the wife worked or the income that she received.  The wife’s capacity for employment is tempered by the care of the children.  D, who is now 15, has suffered from depression and obsessive compulsive disorder. In October 2014 she was diagnosed with anorexia nervosa.  It is alleged by E, the parties’ middle child, and by the police that on 1 December 2014 the husband assaulted him.  The husband has denied that he did so and is defending the charges brought against him by the police.  Whatever the reason, E came under medical care on 4 December 2014 for suicidal thoughts.  On 9 January 2015 he was admitted to the Children’s Hospital at Suburb F in relation to those thoughts.  He was discharged on 15 January 2015 but, according to the wife, continues to have suicidal thoughts and receives treatment for them.

12. Both E and D are under regular medical and psychological care.  It is the mother’s evidence that G, who is aged 9, became very upset after E’s hospitalisation and the mother is concerned that she needs counselling or psychological care.

13. Two things emerge from the above.  First, the undefined capacity of the wife for at least part-time employment is hampered by the care that the children need.  Secondly, in those circumstances one can well understand why she herself needs counselling at an expense of $150 per week. That is not unreasonable. 

14. I therefore find that the wife is unable to support herself adequately within the terms of s 72.

15. The husband filed a financial statement on 9 March 2015. It showed that the husband had an average weekly income of $6 144 and personal expenditure of $6 636. His ‘Part N’ expenses were $1 439 of which $641 were his expenses as opposed to expenses for the children.

16. On 2 April 2015 the husband filed another financial statement. It showed that his average weekly income was $5 751 and he has personal expenditure of $6 325. His ‘Part N’ expenses were $1 266 of which $741 were attributable to him.

17. In his affidavit filed on 2 April 2015 the husband did not explain why he had filed a further financial statement or why his income and expenses had changed.

18. The difference in the income arises from the amount referable to the husband’s annual performance bonus. Each statement assumed that he would achieve 100 per cent of the bonus. The financial statement filed 9 March 2015 quantified the bonus as $1 538.46 per week. The financial statement filed 2 April 2015 quantified it at $1 145 per week.

19. The husband says that he does not have the capacity to make any payment of spousal maintenance.

20. In addition to paying tax of $2 229 per week he continues to make the mortgage payments upon the former matrimonial home and pays the gas, electricity and telephone costs associated with it.  He also pays insurance for that property and car registration and insurance for the wife’s vehicle.  He is currently paying $890 per week in child support.

21. He says that his weekly expenses are $741 per week, an increase of $100 per week in less than a month.  This includes counselling expenses of $50 per week.  Whilst there is no doubt that the husband is entitled to have counselling if he needs it, there is no evidence he is presently undertaking counselling.  Also claimed is an expense of $53 per week for accounting expenses notwithstanding the husband’s evidence that the accounts for his company Lawrence & Associates Pty Limited have not been prepared since 2010.  This reduces his weekly expenditure to $638.

22. Even taking those matters into account, the husband’s reasonable expenditure would seem to exceed his income.  This is so even if a further $100 per week is removed from his expenditure to bring it in line with the figures in the March statement.

23. This is implicitly accepted by the wife because under the heading “Husband’s ability to pay maintenance” the wife effectively makes two submissions.  The first is that the husband’s financial statement should not be accepted because of his non-disclosure. The second is that he has available to him a cash resource sufficient to make the payments.

24. As to the first, the husband’s financial statement of 2 April 2015 shows he was recently paid a long term incentive bonus of $88 791 of which $43 405 was withheld for the payment of tax.  On 27 March 2015 he received a payment of $21 523.40 with the reference “sale of gold and silver payment”. 

25. On 25 March 2015 he paid $17 500 to Lawrence & Associates with the reference “Director Loan Repay Fee Free Txn”.  The following funds have been drawn from Lawrence & Associates:

    ·    5 February 2015  $2 500

    ·    9 February 2015  $2 000

    ·    12 February 2015  $2 000

    ·    11 March 2015  $5 000

    As I have said the evidence is that the last statements of the company were prepared in 2010.

26. A submission to the effect that the husband had not disclosed the documents in relation to the above was withdrawn.

27. It is difficult therefore to know what the true position of the husband’s company is, however, because no recent accounts are available.  There is thus some force in the first point made by the wife.

28. The husband’s most recent financial statement dated 2 April 2015 contained the following note in relation to the value of Lawrence & Associates:

    The value of the business is estimated at $146,184.  The last accounts were done as at Financial Year ending 30 June 2010.  As at 1 April 2015, cash assets of the company amounted to $71,784.  As at 1 April 2015, net shares in HHV owned by the business had a value of $74,400.

29. The husband appears to have available to him a ready source of liquid capital held by a company which is owned entirely by him. He counsel asserts he is required to pay a psychiatrist for a family report in this matter and estimates the cost to be of the order of $12 000 to $20 000.

30. Taking that estimated expense into account I am satisfied therefore that he has the capacity to make the payments of spousal maintenance from that source and there will be an order that the husband pay to the wife spousal maintenance in the sum of $580 per week commencing seven days after the date of this order. 

Costs

1. The wife sought an order that the husband pay her costs when the matter came before the court on 9 March 2015. She submitted that the matter had to be adjourned because the husband provided his financial statement only on that day.

2. On that day the court had a busy duty list. Part of the morning was taken up with parenting issues in this matter. The court returned to this aspect of the matter late in the afternoon. Neither counsel was in a position to articulate their client’s case. Accordingly, it was adjourned with a direction that both parties prepare a skeleton case outline setting out the figures upon which they proposed to base their submissions.

3. Each party then took that opportunity to update their weekly figures.

4. The basis for the wife seeking a costs order has not been established. No other basis for such an order was suggested. Each party had partial success.

5. Each party will bear their own costs of the maintenance application, including the costs of 9 March 2015.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 13 May 2015.

Associate:

Date:  13 May 2015