LISTER & LISTER
[2020] FamCA 987
•24 November 2020
FAMILY COURT OF AUSTRALIA
| LISTER & LISTER | [2020] FamCA 987 |
| FAMILY LAW – SPOUSAL MAINTENANCE – interim – where the wife seeks that the husband pay her spousal maintenance – where the wife seeks the husband continue to pay the mortgage repayments on the former matrimonial home until it is sold – where the wife seeks a lump sum payment from the proceeds of sale to cover her relocation and rental expenses – where the husband opposes the orders as sought by the wife – where the wife is unable to adequately support herself – where the husband has the capacity to pay to the wife spousal maintenance – order that the husband make interest only mortgage re-payments until settlement of the sale – order that the wife receive $25,000 by way of lump-sum spousal maintenance from the proceeds of sale – order that the husband pay to the wife periodic spousal maintenance. |
| Family Law Act 1975 (Cth) ss 72, 74, 75, 80 Family Law Rules 2004 (Cth) |
| Bevan and Bevan (1995) FLC 92-600 Brown & Brown [2007] FamCA 151; (2007) FLC 93-316 Mitchell & Mitchell (1995) FLC 92-601 Redman and Redman (1987) FLC 91-805 Vautin v Vautin (1998) FLC 92-827 |
| APPLICANT: | Mr Lister |
| RESPONDENT: | Ms Lister |
| FILE NUMBER: | MLC | 4978 | of | 2020 |
| DATE DELIVERED: | 24 November 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 13 October 2020 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Fisken |
| SOLICITOR FOR THE RESPONDENT: | Gadens Lawyers |
Orders
That until further order the husband pay or cause to be paid to the wife by way of periodic spousal maintenance:-
(a)As and from 20 October 2020 until settlement of the sale of G Street, Suburb B (“the Suburb B property”), the sum of $160 per week, such sum to be paid into an account nominated by the wife and paid on a monthly basis, commencing 27 November 2020;
(b)Upon settlement of the sale of the Suburb B property, the sum of $436 per week;
(c)As and from 6 months after the settlement of the sale of the Suburb B property, the sum of $960 per week.
That pending the settlement of the sale of the Suburb B property, the husband pay or cause to be paid as and when they fall due all instalments of the interest only mortgage repayments in relation to the Commonwealth Bank Home Loan secured over the title to the Suburb B property, estimated to be $800 per week.
That paragraph 6 of the orders made 13 October 2020 be varied to provide that the proceeds from the sale of the Suburb B property be applied as follows and in the following order and priority:-
(a) In payment of the selling agent's fees, commission and expenses;
(b) In payment of the conveyancer's costs and disbursements of the sale;
(c)In discharge of the mortgage with the Commonwealth Bank of Australia secured against Suburb B, instrument number … ("mortgage");
(d) The amount of $25,000 paid to the Wife;
(e)The amount of $10,000 paid directly and in part payment towards the Husband’s personal loan with the Commonwealth Bank of Australia account number …70;
(f)The amount of $10,000 paid directly and in part payment towards the Applicant's C MasterCard number ending …71;
(g)In repayment to the husband of all reasonable costs incurred associated with the preparation of Suburb B for sale; and
(h)The balance then remaining to be deposited into a controlled money investment account on behalf of the parties with the wife’s solicitors, Gadens Lawyers, pending the parties’ written agreement or further Order.
That the Application in a Case filed 24 August 2020 and the Response to Application in a Case filed 25 September 2020 be otherwise dismissed.
That all extant applications be adjourned to a Conciliation Conference on a date to be fixed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lister & Lister has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4978 of 2020
| Mr Lister |
Applicant
And
| Ms Lister |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter came before the Court in the Judicial Duty List as a result of applications for interim relief filed by the husband, Mr Lister and the wife, Ms Lister.
Many of the issues in dispute were agreed upon at the interim hearing and orders were made on 13 October 2020 by consent in relation to the sale of the former matrimonial home at G Street, Suburb B (“Suburb B”).
The remaining issues for determination arise from the wife’s application that:-
· She receive $25,000 by way of lump sum maintenance from the proceeds of sale of Suburb B.
· The husband be required to continue to pay expenses in relation to Suburb B pending settlement of its sale, including all interest only mortgage repayments and council rates.
· The husband pay to her by way of periodic spousal maintenance the sum of $400.00 per week pending the sale of Suburb B and $1,050.00 per week upon settlement of its sale.
These are my Reasons for Judgment with respect to the remaining issues in dispute between the parties.
Background
The husband is aged 38. He is employed as a consultant. In his financial statement filed 24 August 2020 the husband discloses an income of approximately $300,000 per annum, being $5,769.00 per week.
The wife, Ms Lister, is aged 42. She is currently employed on a part-time basis as an educator. She discloses an income of $109 per week ($5,668 per annum) from that employment. Otherwise she is reliant upon Centrelink benefits and financial support from the husband.
The parties married in 2007 and final separation occurred on 25 November 2018.
There are three children of the marriage; X aged 11, Y aged 9 and Z aged 6. The children live primarily with the wife in the Suburb B property.
There are no current interim parenting orders. By agreement between the parties the children spend approximately four nights per fortnight with the husband.
Proceedings commenced in the Family Court of Australia on 18 May 2020 when the husband filed an Initiating Application seeking final property orders.
The matter first came to this Court on 13 October 2020 in the Judicial Duty List.
Material Relied Upon
The husband relies upon the following documents:-
· Application in a Case filed 24 August 2020;
· The husband’s affidavit filed 9 October 2020;
· The husband’s affidavit filed 24 August 2020; and
· Financial statement filed 24 August 2020.
The wife relies upon the following documents:-
· Response to Application in a Case filed 25 September 2020;
· Affidavit of the wife filed 25 September 2020;
· Affidavit of the wife filed 17 August 2020;
· Affidavit of Mr D filed 25 September 2020;
· Financial statement filed 17 August 2020; and
· Exhibits L-1 – L-8, being documents tendered during the course of the hearing.
Orders Sought
In the wife’s Response to Application in a Case filed 25 September 2020 the wife seeks the following:-
· That from the proceeds of sale of the Suburb B property the amount of $25,000 be paid to the [wife].
· That the [husband] shall pay all other outgoings of Suburb B [excluding all utilities associated with Suburb B, being electricity, gas, water and internet] including but not limited to all interest only mortgage repayments and council rates and taxes.
· That pending settlement of the sale of Suburb B, the [husband] shall pay to the [wife] the sum of $400 per week as and by way of spousal maintenance.
· That upon settlement of the sale of Suburb B, the [husband] shall pay to the [wife] the sum of $1,050 per week as and by way of spousal maintenance until further written agreement between the parties or further order.
The husband opposed all of the orders sought by the wife and sought that the wife’s Response be dismissed. He also sought that the proceeds of sale of Suburb B be applied towards payment of the following liabilities:-
· Taxation and accounting fees;
· F Credit Card and Mastercard; and
· Commonwealth Bank of Australia (“CBA”) personal loan.
The wife concedes that the sum of $10,000 should be applied to each of the CBA personal loan and the C MasterCard but otherwise opposes the husband’s application.
The Hearing
The husband represented himself throughout the hearing and the wife was represented by counsel. At the commencement of the hearing I explained to the parties, for the benefit of the husband, the manner in which the hearing was to be conducted.
The hearing was conducted on the papers. Each party relied upon the material referred to above and submissions made to the Court virtually via Microsoft Teams.
Given the nature of the hearing, contentious facts cannot be determined without evidence being properly tested. Accordingly, in determining the matter, I have relied upon those facts which are agreed or not in issue.
Spousal Maintenance
The orders sought by the wife that the husband meet the outgoings on the Suburb B property and make periodic payments to her for her support is an application for spousal maintenance.
Section 72(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that:-
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).
The threshold issue in considering a claim for spousal maintenance is whether the applicant, in this case the wife, is unable to support herself adequately. The Full Court in Brown & Brown [2007] FamCA 151; (2007) FLC 93-316 at paragraph 161, adopting propositions set out by the trial judge, said as follows:-
· The word “adequately” 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/she is unable to support himself/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.
If the wife is able to demonstrate an inability to adequately support herself, the capacity of the husband to meet a spousal maintenance order must then be considered.
Section 74 of the Act provides that the court may make such order as it considers proper for the provision of maintenance; in exercising jurisdiction under s 74 the court shall take into account only the matters referred to in s 75(2).
Section 75(2) lists a number of matters which are required, where relevant, to be taken into account in determining what order to make. Matters of particular relevance in this case include:-
(a)the age and state of health of each of the parties;
(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;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(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;
(e)…
(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;
(ii) …
and the rate of any such pension, allowance or benefit being paid to either party;
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)…
(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;
(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;
(l)the need to protect a party who wishes to continue that party’s role as a parent;
(m)…
(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.
As to the proper approach in considering an application for spousal maintenance, the Full Court in Bevan and Bevan (1995) FLC 92-600 at 81,981 – 81,982 observed:-
Taken together, then, we would state the law as being that an award of spousal maintenance requires:
1.a threshold finding under section 72;
2.consideration of section 74 and section 75(2);
3.no fettering principle that pre-separation standard of living must automatically be awarded where 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.
As this is an interim hearing the decision of the Full Court in Redman and Redman (1987) FLC 91-805 at 76,081 is apposite. With respect to interim orders it stated:-
Whilst we agree with the view expressed in Ashton that in principle such an order is one under sec. 74, to which the principles of sec. 72… may be applicable, … the very fact that the order is limited in time imports certain different considerations. One of these is that such an order is intended to be reconsidered, quite apart from a variation under sec. 83. …Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson (1978) FLC 90-505; (1978) 4 Fam. L. R. 355 at FLC p. 77,650; Fam. L. R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.
Is the wife able to adequately support herself?
The wife is employed on a part-time basis as an early childhood educator from which she deposes that she earns an income of approximately $109.00 per week. Otherwise, the wife’s only other sources of income are her income tested Centrelink benefits of $857 per week and child support of $673 per week. The payment of income-tested benefits are disregarded for the purposes of this assessment.
The wife has the primary care of the parties’ three children, all of whom were being home-schooled at the time of hearing due to the restrictions imposed as a result of COVID-19.
In her financial statement the wife deposes that her weekly expenses total $502.00 per week, comprising of:-
· Income tax $4.00
· Car insurance $31.00
· Car registration $16.00
· Part N expenses $451.00
That sum makes no provision for housing costs, as the wife currently lives with the children in the Suburb B property. I have made orders for the sale of the Suburb B property and upon its sale the wife and the children will relocate to rental accommodation. It is on this basis that the wife seeks an increase in periodic maintenance from the husband upon settlement of the sale of the Suburb B property.
The husband did not seek to challenge the wife’s claimed income or expenses, save that he submitted that the wife has the capacity to undertake further employment.
The wife’s evidence is that upon the birth of the parties’ first child in 2009 she was engaged as a full-time homemaker and caregiver. Following separation, the wife completed a Certificate 3 and is now undertaking a Diploma. Since December 2019 she has undertaken casual employment as an educator. The wife’s evidence is that she is employed on a casual basis and works approximately 12 hours per week, albeit that she had no work between March and June 2020 as a result of the global pandemic.
I do not accept the husband’s submission as to the wife’s employment is reasonable in circumstances where the wife has the care of the three primary school-aged children for 10 nights per fortnight. In addition to that responsibility the wife is working for approximately 12 hours per week and studying. Having regard to those matters I am not persuaded that the wife has the capacity to undertake additional employment.
Having regard to the wife’s financial statement I am satisfied that her weekly expenses are $502 per week and that they exceed her income of $109 per week by $393 per week. Accordingly, I am satisfied that the wife is unable to adequately support herself in accordance with the provisions of s 72 of the Act.
What are the wife’s reasonable weekly needs?
The wife seeks that the husband meet the mortgage liability for Suburb B and pay to her a periodic payment in the sum of $400 per week pending the sale of the Suburb B property. Thereafter the wife seeks an increase in the periodic payment to her to $1,050 per week. The basis for that increase is that the wife will be required to meet rental and other housing costs upon the sale of the Suburb B property. However, in circumstances where the wife seeks a lump-sum payment to enable her to meet a pre-payment of rent to secure a rental property, which order I am inclined to make for the reasons set out below, I am not persuaded that the increase in the periodic amount as sought by her is reasonable.
Given my earlier findings as to the shortfall between the wife’s weekly income and her expenses, which have not been challenged by the husband, I am satisfied that currently the wife is unable to support herself to the extent of $393 per week.
Upon the sale of the Suburb B property there will inevitably be an increase in her expenses to meet contents insurance, rent and utilities at her new home. The wife’s evidence is that she expects to rent a property of similar size to that occupied by the husband, and anticipates her rental liability to be between $600 and $650.00 per week. The husband’s evidence is that he pays rent of $647 per week, insurance of $4 per week, gas of $30 per week and electricity of $20 per week. In my view, it is appropriate that similar amounts be allowed in respect of the wife’s expenses upon her relocating from the Suburb B property, save that adjustment should be made to take into account her pre-payment of rent for a period of up to 6 months. Given that the wife has already provided $11 for the payment of her utilities in her financial statement, I propose to allow that the wife’s expenses increase by approximately $43 per week in respect of her utilities.
Based on that adjustment, I am satisfied that for the first six months following her relocation the wife’s expenses for her support will be $545 per week, leaving her with a shortfall of $436 per week and thereafter, upon commencement of periodic rental payments, will increase to $1,195 per week, leaving her with a shortfall of $1,086 per week after deduction of her income.
What is the husband’s capacity to pay spousal maintenance?
The husband relied upon his financial statement filed 24 August 2020. He deposes that his income received from being a consultant is a weekly wage of $5,769. In addition to that sum he is paid an “annual performance incentive”. In his financial statement he deposes that his entitlements from that payment are not known.
The wife deposes that the husband is entitled to a bonus of $60,000 per annum. In the financial year ending 30 June 2019, the husband’s taxable income was $373,975 (Exhibits L-1) and for 30 June 2020 it was $331,854 (excluding superannuation) (Exhibits L-2).
Counsel for the wife submitted that I should apply the average of the past two financial years to calculate the husband’s annual income, which would result in him having an income of $352,914. I do not accept that that approach is reasonable, particularly in circumstances where the impact of the pandemic and consequential shut down of many businesses is as yet unknown. In my view, the best evidence as to the husband’s current income, which I accept, is his most recent tax assessment which discloses his income as $331,854 per annum or $6,381 per week.
The husband deposes that his weekly personal expenditure is $6,603. That sum includes $2,154 for income tax; $647 for rent; $50 for rates/unit levies; life insurance of $25; insurance premiums of $107; a motor vehicle lease agreement of $371; personal loan repayments of $246; credit card payments of $300; child support payments to the wife of $673; and other expenditure of $2,030.
The husband’s other expenditure is set out at part N of his financial statement.
The husband’s part N expenses were subject to challenge. In particular it was submitted on behalf of the wife that the following claimed expenses were excessive, particularly when compared with the amounts expended by the wife on those items:-
·Food $509 per week
($80 per week claimed by the wife);
·Household supplies $292 per week
($20 per week claimed by the wife);
·Holidays $369 per week;
(nil claimed by the wife)
·Entertainment $89 per week
($50 per week claimed by the wife)
In addition to those claimed amounts, the husband makes allowance for household rates of $50 per week and house insurance of $23 per week. In circumstances where the Suburb B property is to be sold pursuant to Court order, I am satisfied that they are not on-going expenses for which the husband will be liable and I will disregard them for the purposes of calculating his expenses.
The wife is also critical of what she describes as the husband’s “lifestyle choice” to purchase a new motor vehicle in 2019, thereby incurring a liability for a novated lease in the sum of $371 per week. The lease liability relates to a Motor Vehicle 1. Given the parties’ separation and the consequential strain on their financial circumstances as a result of the family income being required to support two households, there is much force in that submission.
It was also submitted on behalf of the wife and I accept that upon the reduction of the CBA loan and Mastercard liabilities by $10,000 each, there will be a consequential reduction in the interest payable in respect of those liabilities.
In addition, at paragraphs 57 to 58 of the wife’s affidavit filed 17 August 2020, she deposes that the husband has re-partnered and that he lives with his new partner. The husband does not challenge that evidence. The husband does not disclose in his financial statement what income his partner earns or what contribution, if any, she is making towards his rental and other household expenses. In circumstances where the husband has no obligation to support his new partner, it is reasonable to expect that she will contribute to rent and other household expenses.
In my view, it is appropriate that the husband’s expenses in relation to the items identified above should be adjusted and reduced to the amounts claimed by the wife in respect of each of those items. Accordingly, I propose to allow the following amounts in respect of those items:-
·Food $80.00
·Household supplies $20.00
·Holidays Nil
·Entertainment $50.00
·Rates Nil
·House insurance Nil
Those adjustments will result in a reduction of the husband’s weekly expenses by $1,182 per week. On that basis, I am satisfied that the husband’s weekly expenses total $5,421 per week leaving him a surplus of $960 of income over expenditure.
Should there be an order for the payment of the mortgage at Suburb B?
It is common ground between the parties that repayments on the mortgage secured against the title to the Suburb B property were frozen in March 2020 for a period of six months. Based on a mortgage liability of approximately $1,091,943 (Exhibits L-8), interest only payments in respect of that liability are approximately $750.00 per week. In circumstances where I have made orders by consent for the property to be sold, it being anticipated that it would be listed for auction in December 2020, it is likely that that liability will continue at least for another four months. Having regard to my findings as to the husband’s income and expenses I am satisfied that he should to meet the minimum interest only payment on the mortgage up to $800.00 per week, pending the settlement of the sale of the Suburb B property.
Should there be an order for the payment of periodic spousal maintenance?
As set out above, I am satisfied that the husband has a surplus of $960 per week of income over his expenses. Given my determination that he should be required to make the interest only payments on the mortgage liability pending the sale of Suburb B I am satisfied that the husband has the capacity to pay to the wife by way of periodic spousal maintenance the sum of $160 per week pending that sale. I am further satisfied that for a period of six months from the settlement of the sale of the Suburb B property, in circumstances where the wife proposes to pre-pay her rent to secure accommodation, the husband ought pay to the wife the sum of $436 per week and thereafter that periodic payment should increase to $960 per week.
Should there be an order for lump-sum spousal maintenance?
The wife seeks an order that she be paid the sum of $25,000 from the proceeds of sale of the Suburb B property. She submits that a payment in that sum is necessary to enable her to secure appropriate rental accommodation for herself and the children and to meet necessary expenses to relocate to that property.
As to her anticipated rental costs the wife relies upon the evidence of Mr D who filed an affidavit on 25 September 2020. Mr D is a director and auctioneer of a real estate agency in Suburb G. Mr D deposes that as a result of the COVID-19 pandemic, it is his observation that there are fewer properties available to rent and further that it is a “landlord’s market” for selecting prospective tenants. He deposes at paragraph 9 of his affidavit that it is not unusual for landlords to request information as to prospective tenants’ job security and whether or not they are able to pay rent up-front.
At paragraph 10 of his affidavit Mr D deposes that it is his view that the wife will have difficulty in securing rental accommodation given that she has not rented a property privately in her sole name and has no rental history and no professional references from previous leasing or selling agents. Further, he deposes that the wife’s casual employment means that she has little job security. It is his evidence that in order for the wife to improve her prospects of securing a residential lease it would be preferable for her to offer payment of a 12-month lease up-front.
The wife’s evidence is that she proposes to remain in the Suburb G/Suburb B area near the children’s school so as to minimise the disruption that the relocation will have upon them. She anticipates that she will incur a rental liability of between $600 and $650 per week in order to secure appropriate accommodation.
Based upon a rental liability of $650 per week, a prepayment of rental for a 6 month period would total $16,900. Further, the wife anticipates that it will cost approximately $5,000 to meet a bond and removalist costs. It is on this basis, that she seeks a lump-sum payment of $25,000 from the proceeds of sale of Suburb B.
Section 80(1) of the Act relevantly provides:-
The Court in exercising its powers under this Act, may do any or all of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(b)order payment of a weekly, monthly, yearly or other periodic sum;
…
in Vautin v Vautin (1998) FLC 92-827 at 85,423 – 85,424, the Full Court stated:-
…in the exercise of the power to order lump-sum maintenance caution is usually appropriate because of the apparent finality of lump-sum orders and the difficulties in making predictions into the future. However, it is a power, the exercise of which may be appropriate in particular cases. It may be ordered, amongst other reasons, to meet non-periodic expenditure for the maintenance of that person where there is an established need and a capacity to pay. It is not confined to cases of the capitalisation of periodic maintenance and/or where periodic maintenance is unlikely to be paid because of concerns about the capacity or willingness of the liable parent to pay…
(Emphasis added)
The husband submitted that the wife should draw upon her savings to meet her relocation expenses. The wife opposed that contention and relied upon the decision of the Full Court in Mitchell & Mitchell (1995) FLC 92-601 at 81,995 where it stated that:-
The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself adequately.
Given the nature of the proposed expenditure of the lump-sum amount, I am satisfied that it is appropriate, just and equitable to make an order for lump-sum spousal maintenance as sought by the wife. That payment will enable her to secure accommodation for herself and the children and provide to her funds to enable them to relocate. I do not accept the submissions of the husband that the wife deplete her savings in order to meet those necessary expenses to house herself and the children of the marriage.
Payment of the husband’s credit card and loan liability
The husband initially sought orders that his liability under two credit cards and a personal loan be discharged from the proceeds of sale of the Suburb B property. Those liabilities totalled in excess of $110,000. The wife conceded that it was appropriate that $10,000 be applied towards the reduction of the personal loan liability and also the Mastercard liability. She conceded that those liabilities related to the marriage and should be reduced. Otherwise she challenged the husband’s claimed liabilities and submits that they should be his responsibility, having been incurred after the parties’ separation.
It is common ground between the parties that there is little equity in the Suburb B property, the husband estimating its sale price to be in the order of $1.2 million and the mortgage liability to be approximately $1,090,000.
In circumstances where the likely pool available for division is extremely modest, the evidence is untested and there is a significant challenge as to who should be responsible for those liabilities, I am satisfied that the determination as to how the balance of the sale proceeds should be applied is a matter that should await final hearing absent agreement between the parties.
Accordingly, I make orders as follows:-
That until further order the husband pay or cause to be paid to the wife by way of periodic spousal maintenance:-
(a)As and from 20 October 2020 until settlement of the sale of G Street, Suburb B (“the Suburb B property”), the sum of $160 per week, such sum to be paid into an account nominated by the wife and paid on a monthly basis, commencing 27 November 2020;
(b)Upon settlement of the sale of the Suburb B property, the sum of $436 per week;
(c)As and from 6 months after the settlement of the sale of the Suburb B property, the sum of $960 per week.
That pending the settlement of the sale of the Suburb B property, the husband pay or cause to be paid as and when they fall due all instalments of the interest only mortgage repayments in relation to the Commonwealth Bank Home Loan secured over the title to the Suburb B property, estimated to be $800 per week.
That paragraph 6 of the orders made 13 October 2020 be varied to provide that the proceeds from the sale of the Suburb B property be applied as follows and in the following order and priority:-
(a) In payment of the selling agent's fees, commission and expenses;
(b) In payment of the conveyancer's costs and disbursements of the sale;
(c)In discharge of the mortgage with the Commonwealth Bank of Australia secured against Suburb B, instrument number … ("mortgage");
(d) The amount of $25,000 paid to the Wife;
(e)The amount of $10,000 paid directly and in part payment towards the Husband’s personal loan with the Commonwealth Bank of Australia account number …70;
(f)The amount of $10,000 paid directly and in part payment towards the Applicant's C MasterCard number ending …71;
(g)In repayment to the husband of all reasonable costs incurred associated with the preparation of Suburb B for sale; and
(h)The balance then remaining to be deposited into a controlled money investment account on behalf of the parties with the wife’s solicitors, Gadens Lawyers, pending the parties’ written agreement or further Order.
That the Application in a Case filed 24 August 2020 and the Response to Application in a Case filed 25 September 2020 be otherwise dismissed.
That all extant applications be adjourned to a Conciliation Conference on a date to be fixed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 24 November 2020.
Associate:
Date: 24 November 2020
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