LMH and LEJ - [2002] FMCAfam 271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LMH & LEJ

[2002] FMCAfam 271

FAMILY LAW – Interim spousal maintenance – wife shares home with parties’ adult daughter – whether adult daughter should contribute to household expenses – pre-separation standard of living – effect of marriage breakdown on parties – whether wife obliged to contribute to her own support from available capital – appropriateness of retrospective order for spousal maintenance.

Applicant:

LMH

Respondent:

LEJ

File No:

(P)MLM 2962 of 2002

Delivered on:

5 September 2002

Delivered at:

Melbourne

Hearing Dates:

22 February & 21 March 2002

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Ms Wheeler

Solicitors for the Applicant:

Carew Counsel Pty Ltd

Counsel for the Respondent:

Dr Ingleby

Solicitors for the Respondent:

Nedovic & Co

ORDERS

With effect from Friday 7 December 2001, and until further order of the Court, the husband do pay to the wife the sum of $625.00 per week as and by way of spousal maintenance.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

(P)MLM 2962 of 2002

LMH

Applicant

And

LEJ

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is the wife’s application for interim spousal maintenance. The quantum of spousal maintenance sought by the wife is $800.00 per week.
The husband proposes that he pay interim spousal maintenance at the rate of $200.00 per week.

Documents Relied Upon

The wife relied upon the following documents:
a)her (form 3) application filed in the Family Court of Australia on 7 December 2001;
b)her form 12 application for maintenance filed 7 December 2001;
c)her form 17 financial statement sworn 5 December 2001; and
d)her affidavit sworn 5 December 2001.
The husband relied upon the following documents:
a)his form 3A response filed 18 January 2002;
b)his form 12B response (to the application for maintenance) filed 18 January 2002;
c)his affidavit sworn 17 January 2002; and
d)his form 17 financial statement sworn 17 January 2002.
Neither party filed a formal case outline document.
The hearing commenced on 22 February 2002. Both parties gave evidence on that day, and were cross-examined.
Although the ‘evidence phase’ of the hearing was concluded on 22 February 2002, the proceedings were adjourned to 21 March 2002 to enable Counsel to present their closing addresses.
Both Counsel addressed the Court on 21 March 2002. Counsel for the wife handed up a document entitled ‘Short Summary of Submissions at Law’. Counsel for the husband handed up a brief schedule summarising the appropriate allowance for interim spousal maintenance from the husband’s point of view, and noting certain factors which the husband felt were relevant.

Overview

The husband was born in September 1948. He is now aged 53 (nearly 54) years. The wife was born in June 1949. She is now aged 53 years.
The parties were married on 3 June 1972. They separated on 14 July 2001.
The only relevant child of the marriage is their daughter, H, who is aged 23 or 24 years. There is another child of the marriage, M who is aged 25 or 26 years.
The husband is a barrister. The wife is employed as a receptionist, on a part time basis. The wife is also employed to ‘inspect shopping centres’. She earns approximately $50.00 per week from this form of employment.

Background

I was provided with very little information regarding background matters. It was apparent from the parties’ evidence (both written and oral) that this was what may be described as a ‘traditional’ marriage — in that the husband was the principal ‘breadwinner’, whilst the wife was the ‘homemaker’, and primary care giver for the children.
It is fair to conclude that, during the period leading up to separation, the parties were living in comfortable circumstances. The former matrimonial home (in which the wife has continued to reside since the date of separation) is located in East Kew and has an agreed value of approximately $650,000.00. The parties also have a one half interest in a property at Shoreham. The value of their interest is approximately $140,000.00.
The husband is residing in a flat or unit in East Melbourne, which he rents.
At the date that the wife swore her form 17, she had approximately $60,000.00 standing to her credit in various bank accounts and a share portfolio worth approximately $80,000.00.
At the date that the husband swore his form 17, he had approximately $62,500.00 in a cash management call account.
The parties have one motor vehicle — a 1998 Honda Accord. The vehicle is leased (in a manner to which I shall refer later in these Reasons). The wife currently has exclusive use of the vehicle.
The parties have other assets (such as their furniture, chattels and effects, and the husband’s outstanding Counsel fees).
The wife does not particularise any liabilities in her financial statement. The husband — in his financial statement — refers to an income tax liability of approximately $60,500.00, an overdraft of approximately $50,000.00 and various credit card liabilities totalling approximately $33,500.00. There are other liabilities, but they are only of marginal relevance.
Under the heading ‘Financial Resources’ in his financial statement, the husband makes reference to the parties’ interest in the L Family Superannuation Fund (‘LFSF’). The value of the parties’ interest in the LFSF as at 30 June 2000 was approximately $565,000.00.
After the parties separated in July 2001, the wife had access to an overdraft cheque account in the husband’s name. According to the wife, her access to the overdraft account was “unfettered”. The husband denies that the wife’s access to the account was unfettered. Whatever was the case, on 30 November 2001 the husband wrote to the wife (“the first letter”) regarding certain cash withdrawals that she had made over the previous week or so. Those withdrawals totalled $3,800.00.
The wife asserts that she withdrew the cash because she had noted that the husband had withdrawn moneys from the cheque account and she “…was concerned that he was taking large cash sums out prior to Christmas”. According to the wife, she withdrew cash “to protect myself and to ensure that I had sufficient funds to meet my own Christmas expenses”.
According to the husband, the moneys withdrawn by him reflect cheques that were drawn in payment of normal, recurring expenses (being his disability insurance premium and rent for the flat in which he was residing). He asserts that the writing of the cheques represented normal use of the overdraft facility.
The husband attached various “household accounts” to the first letter, and requested that the wife pay them from the funds taken by her. He also requested that the balance (amounting — according to the husband — to $1330.00) should be deposited back into the account “to restore the status quo”. The first letter continued: [1]
Meanwhile and in order to avoid any further unnecessary and uncontrolled increase in the overdraft liability in contravention of our understanding I have, with great regret, been forced to revoke your authorisation to access the overdraft account, write cheques upon it or access the two linked Mastercard credit cards.
In the event that you pay the above accounts and restore the balance to the overdraft account I will of course give sympathetic consideration to restoring some access to the account.
[1] The first letter is annexure ML-1 to the wife’s affidavit sworn 5 December 2001.
By letter dated 4 December 2001 (“the second letter”), the husband again wrote to the wife. He attached documents showing that the cheques that he had written against the overdraft account were for legitimate purposes (being those described in the first letter). The husband continued: [2]
I ask that you re-read (the first letter) and try to understand why your conduct and refusal to agree to discontinue making such cash withdrawals at will left me with no alternative other than to take the steps which I took so as to prevent further increases in the overdraft liability completely contrary to the arrangement which had operated between us since separation.
[2] The second letter is annexed to the husband’s affidavit sworn 17 January 2002.
The “arrangement” referred to by the husband in the two letters was, according to the husband, “…to attempt to preserve the status quo pending resolution of property and maintenance issues hopefully in the short term”.
In paragraph 6 of her affidavit, the wife said:
Since separation I have used the cheque account and various credit cards to support myself, paying for food and household expenses, entertainment and the like and have maintained the same standard of living that I enjoyed prior to separation. (emphasis added).
In paragraph 9 of her affidavit, the wife said:
Throughout the marriage the husband has maintained me and the funds that I have by way of investments and bank deposits came by way of an inheritance from my mother who died in July 2000. The inheritance comprised $100,000.00 and the sum of $16,000.00 of those funds was advanced towards the purchase of the property at Shoreham.
In paragraph 10 of her affidavit, the wife said:
To the best of my knowledge and belief, the husband earned in excess of $354,000.00 in the financial year ended 30 June 2000 and has the means to support me. I do not wish to use my mother’s inheritance to support myself. (emphasis added).
In paragraph 14 of her affidavit, the wife said:
I have no real prospects of employment and rely on the…husband to support me.
For his part, the husband elected not to respond — in his affidavit — to a number of the matters raised by the wife in her affidavit. In paragraph 5 of his affidavit, however, the husband said:
I deny that the wife’s expenses as alleged by her in her application are reasonable and say that I am unable to finance two households at the level of expenditure required by the wife.
In paragraph 8 of his affidavit, the husband said:
I reserve my rights to respond at a later date in relation to matters deposed to by the wife which are only relevant to the application for final orders.
The husband did not identify which matters deposed to by the wife were “only relevant to the application for final orders”.
The wife was cross examined at some length during the course of the proceedings before me. I note the following:
a)The wife was asked about the funds which she withdraw from the overdraft cheque account during the week leading up to 30 November 2001. It was put to her that $3,800.00 had been withdrawn from the account in cash. The wife conceded that that amount had been withdrawn and said that it had been kept at her home. She also said — and I accept — that all of the moneys had been spent by the date of the trial.
b)The parties’ adult daughter, H, lives with the wife. H earns approximately $400.00 per week gross, but the wife has not asked her to contribute to household expenses. According to the wife, she “owed (H) a lot because she gave up a lot to come and live with me”. H had only recently moved from the former matrimonial home to her own accommodation. The wife said that H would contribute to household expenses if she were asked to do so.
c)In my opinion, it is clear that the wife was profoundly affected by the separation. She did not desire the separation, and has had difficulty coping with her altered position. She has struggled to deal with the loss of security and loss of confidence brought about by the marriage breakdown. The wife clearly perceived herself as being part of a small team (comprising, at its core, the husband and herself). Leaving aside feelings of abandonment and betrayal (and my comments in this regard are not intended to imply that the husband — who has left the former matrimonial home and has commenced a relationship with another woman — has behaved unreasonably or inappropriately)[3], the wife’s unanticipated and unwanted (from her point of view) “independence” created within her an emotional need which has, to some extent, been met by the presence of H in the home.
d)Having seen and heard the wife give her evidence, I conclude that the wife’s emotional needs do in fact require the presence of H in the home, and that the wife genuinely finds herself unable to request from her a financial contribution to household expenses. Whether or not H should contribute to household expenses whilst she resides with the wife is another question.
e)The apportionment of various items within the wife’s list of average weekly expenses between the wife and H was tested. Relevantly, the allocation of $175.00 per week for food for the wife as opposed to $25.00 per week for food for H and $50.00 per week for telephone expenses for the wife as opposed to $6.00 per week for telephone expenses for H was queried. The wife’s explanations for these allocations were not entirely satisfactory. That said, they did not — in my view — reflect any dishonesty or lack of candour on the part of the wife. Instead, they result from the wife’s perception that she should be responsible for a greater proportion of shared expenses than might otherwise be the case, because H has a limited income and because, from the wife’s point of view, H “gave up a lot for (the wife)” by turning her back on an independent lifestyle in order to provide a degree of comfort and security for the wife. By extension, of course, it is the wife’s assertion that the husband should bear that financial responsibility.
f)The wife conceded that her expenditure after separation — in relation to certain items — was at a higher level than it had been prior to separation. The examples given by the wife included entertainment, petrol, gifts and alcohol. The wife denied that her estimate of $200.00 for “entertainment/hobbies” is an exaggeration. During the course of her evidence, the wife explained that her lifestyle (and, perhaps, her approach to life) has altered following and as a result of the separation. For example, the wife finds that she has more time on her hands and that she chooses to go out more often than she did before. She needs the support and companionship of her friends, and she meets them from time to time for breakfast, coffee or other meals. In the same vein, the wife adhered to her estimate of $45.00 per week for hairdressing and toiletries. She expressed the need “to feel good about herself”. In my view, that need is reasonable and understandable having regard to the impact of the breakdown of the marriage on the wife.
g)The wife said that she had not attempted to increase her working hours with her present employer. She said that she was confident that no additional work would be available for her even if she sought it. I accept the wife’s evidence in that regard. In any event, the wife said she tried very hard to get a job at David Jones, but that she was unsuccessful. Her lack of success in this regard had a deleterious effect on her already fragile confidence and self esteem. Since September 2001, she has made no further attempts to secure employment.
[3] I am well aware that I have not had presented to me credible evidence which could lead to a meaningful analysis of the actual causes of the breakdown of the marriage.
During the course of her re-examination the wife said that the separation had come as a complete shock to her. She had sought and obtained medication (in the form of tranquillisers and sleeping tablets) through her general practitioner. In addition, she had attended counselling.
It is apparent to me that the wife lacks the emotional or psychological resources to obtain and maintain employment in a form other than that currently held by her. Similarly, I find that the wife lacks the emotional/psychological resources to work longer hours than she presently works.
The husband was also cross examined at some length during the course of the proceedings. I note the following:
a)The husband’s estimate of his income from his practice at $2,800.00 per week was expressed, in his form 17, to be an “estimate based on the average of the past 3 financial years”. The husband conceded, however, that after the deduction of his Clerk’s fees and expenses, his gross income for the 1999, 2000 and 2001 financial years was $158,586.00, $333,566.00 and $116,861.00 respectively. These amounts total $609,013.00 — which equates to $3,903.00 per week for that three year period.
b)The husband conceded that an average allowance for the expenses associated with his practice over the same period is $691.00 per week. It follows that his average taxable weekly income over the past three financial years is approximately $3,212.00 (being $3,903.00 less $691.00).
c)The husband confirmed that his proposal is to the effect that he should pay “$200.00 per week as and by way of spousal maintenance”. The husband later conceded that he will continue to pay for private health insurance at the current level and that he will ensure that the wife is covered under his policy.
d)The husband is currently making lease payments to G Pty Ltd for the motor vehicle (being the parties’ only motor vehicle) in the wife’s possession. The lease payments amount to $206.00 per week. The fact of the matter is, however, that G Pty Ltd is the trustee of the family superannuation fund (being LFSF). Further, the lease arrangement between the husband and G Pty Ltd expired in June 2001. After some vacillation, the husband agreed to continue to pay the lease payments over and above his proposed spousal maintenance payment of $200.00 per week. In my view, the husband’s apparent discomfort with this concession did him little credit. In the broadest sense, the arrangement between the husband and G Pty Ltd is something of an artifice, and I am not persuaded that any adverse consequences would arise from a failure on the husband’s part to make any further lease payments. I am certainly not persuaded that any adverse consequences would arise in the short term.
e)The husband and the wife are the directors and shareholders of G Pty Ltd. As recorded above, G Pty Ltd is the trustee of the LFSF. Both parties are beneficiaries within the fund. As at June 2000, the wife’s entitlements within the fund amounted to approximately $78,000.00. The husband’s entitlements were approximately $565,000.00.
f)It is the husband’s view that H “should pull her own weight”. He clearly resents the wife’s decision not to seek a contribution from H towards her (being H’s) expenses, and recognises that the practical effect of such a decision is that the wife has sought a greater quantum of spousal maintenance than would otherwise be the case.
g)The husband does not have a motor vehicle. In the past, he has driven a vehicle belonging to his female friend, D. According to the husband, he is “in a relationship” with D, but does not live with her. The husband uses public transport to travel between his flat and his chambers.
I observed the husband carefully during the course of the proceedings. Like the wife, he found the period leading up to and immediately following the separation to be stressful and depleting. He is clearly frustrated by the wife’s inability or unwillingness to reduce her financial dependence upon him. I formed the impression that the husband would prefer to “wipe the slate clean” (as it were) in such a way as to enable him to “move on” and appropriately progress his relationship with D.
I do not minimise the impact that the breakdown of the marriage has had on the husband. It has introduced into his life elements of insecurity (both financial and emotional), introspection and uncertainty that may not otherwise have been present. I find, however, that he is an intelligent, capable and determined man — who has the emotional and psychological strength and resources to enable him to resume his previous level of work and sustain his earning capacity. It is not irrelevant in this regard that the husband has the ongoing support of D. The wife has no equivalent partner to whom she can turn for support, affection and encouragement. Perhaps because of this, she finds the proximity of H so comforting.

The Law

Part VIII of the Family Law Act deals with property, spousal maintenance and maintenance agreements. Section 72 deals with the right of a spouse to maintenance, section 74 deals with the powers of the Court in spousal maintenance proceedings and section 75 deals with matters to be taken into consideration in relation to spousal maintenance.
Section 72 is as follows:
72 Right of spouse to maintenance
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, 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).
Section 74 is as follows:
74 Powers of court in spousal maintenance proceedings
In proceedings with respect to 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.
Section 75 is as follows:
75 Matters to be taken into consideration in relation to spousal maintenance
(1)     In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2)
(2)     The matters to be so taken into account are —
(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)     the responsibilities of either party to support any other person;
(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; or
(ii)     any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(g)     where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
(h)     the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(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)    if either party is cohabiting with another person—the financial circumstances relating to the cohabitation;
(n)     the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(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; and
(p)     the terms of any financial agreement that is binding on the parties.
(3)     In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
The role of each of these provisions is important:
…section 72, which concerns the liability of one party to a marriage to maintain the other, says nothing of the amount of maintenance that a needy spouse is entitled to receive from his or her partner should the former enforce this liability by a maintenance order. Quantum of spousal maintenance is determined by the court pursuant to section 74, taking into account the…considerations set out in section 75(2). It is possible for a liability to pay maintenance to be established under section 72, yet for the subsequent maintenance order to be quite small — or even for no maintenance order to be made at all — on account of the relevance of particular considerations set out in section 75(2).[4]
[4] See “Family Law” by Dr A Dickey QC (4^th Edition — Law Book Co, 2002), at page 468.
In Bevan (1995) FLC 92-600, the Full Court stated that an award of spousal maintenance requires:
a)a threshold finding under section 72;
b)a consideration of sections 74 and 75(2);
c)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
d)discretion exercised in accordance with the provisions of section 74 with “reasonableness in the circumstances” as the guiding principle.
There is no direct reference to interim maintenance in the Family Law Act. Pursuant to section 80(1)(h) — which is within Part VIII — the Court, in exercising its powers under Part VIII, may “make…an order pending the disposal of proceedings …or until further order”. Spousal maintenance orders of this nature are referred to as interim spousal maintenance orders — but they are subject to the usual criteria for spousal maintenance, as set out in sections 72 and 75. The principal differences between applications for interim spousal maintenance and those for permanent spousal maintenance are as follows:
a)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”[5]; and
b)the trial judge has considerable discretion and (any relevant) appellate tribunal “...would be much more reluctant to interfere than would be the case with an order for indefinite maintenance”.[6]
[5] See Williamson (1978) 4 FamLR 355 and Wilson (1989) 13 FamLR 205.
[6] See Wilson (1989) 13 FamLR 205, citing Redman (1987) 11 FamLR 411.
It is clear from the above that section 72 establishes a threshold question which must be answered before the power in section 74 can be exercised — on either an interim or a permanent basis. The threshold question is whether the applicant is “unable to support herself or himself adequately”, not only by reason of the matters set out in (a), (b) and (c) of that section, but also having regard to any relevant matters referred to in section 75(2). Thus, the question whether an applicant for spousal maintenance (or interim spousal maintenance) can support herself or himself “adequately” is not to be determined by reference to any fixed or absolute standard — but by reference to the matters referred to in section 75(2).[7]
[7] See Mitchell (1995) FLC 92-601 at 81,995.

Discussion/Analysis

It is not in dispute in the present case that the wife passes the threshold test. The husband has conceded that the wife is entitled to a payment for spousal maintenance, and the only real issue is the quantum of that payment.
Counsel for the husband (Dr Ingleby) submitted that the issue could be approached “on the numbers”. His mathematics were as follows:
Wife’s total income (including her  wages as a receptionist, her income  from the inspection work that she  carries out and dividends from shares)

on a weekly basis  $269.00
Husband’s proposed contribution   $200.00
Proposed contribution from H  $100.00
Draw down of $17,000.00 of wife’s savings  that were not sourced in her inheritance  (over a period of approximately 12 months)  $300.00

Total: $869.00

Dr Ingleby then contrasted this notional income figure with the wife’s “needs” as follows:
Wife’s “needs” as set out in Part F of her financial statement $1,020.00
Proportion of those “needs” which should more properly characterised as H’s “needs” ($120.00)

Total $900.00

Dr Ingleby developed his argument by submitting that the figure of $1,020.00 referred to in paragraph 51 above includes “discretionary expenditure” of at least $575.00. He then submitted that the discretionary expenditure has been exaggerated by the wife. Discounting the “exaggerations” has the effect of reducing the wife’s real needs from $1,020.00 per week to about $900.00 per week. If the $120.00 per week for H’s needs is then deducted, it is clear — according to Dr Ingleby — that the wife’s income (together with the proposed interim spousal maintenance of $200.00 per week) is sufficient to meet her expenditure on an interim basis.
Counsel for the wife (Ms Wheeler), for her part, emphasised that the husband’s average taxable weekly income over the past 3 financial years is approximately $3,212.00[8]. She also emphasised the very significant amount of money contributed by the husband to the parties’ superannuation fund. Exhibit W1, being the husband’s 2000 tax return, reveals that the husband contributed $75, 283.00 to the fund during that year.
[8] See paragraph 38(b) above.
Ms Wheeler argued that the total of the husband’s “necessary commitments” as set out in Part G of his form 12B response should properly be reduced by the motor vehicle lease payment of $206.00 per week, which the husband effectively pays to himself. It follows that his commitments — as claimed by him — total $2,084.00 per week (including an allowance of $1,038.00 per week for income tax).
Ms Wheeler stated that the husband’s claimed expenditure includes an amount of $130.00 per week for “minimum credit card repayments”, and that the inclusion of such an amount allowed for a certain degree of “double-dipping” — given that the repayments relate to acquisitions otherwise accounted for in the schedule of commitments.
If the husband’s “allowed” expenses of $2,084.00 per week are subtracted from his estimated average income of $3,212.00 per week, then the husband has $1,128.00 per week “left over”, and available to contribute towards any award of spousal maintenance.
Given that the wife seeks an order for $800.00 per week spousal maintenance, it is clear — on Ms Wheeler’s argument — that the husband has ample capacity to meet such an order, even if the motor vehicle lease payment were to be regarded as a “real” expense.
In my opinion, there is significant merit in the submissions presented on behalf of the wife. Dr Ingleby did not seriously argue that the husband does not have the capacity to pay the quantum of spousal maintenance sought by the wife. His argument amounted to an attack on the wife’s “reasonable needs”. An integral part of the attack was the husband’s submission that H should make a proper contribution to her board, and that the wife should “draw down” on such of her capital as does not comprise inherited funds.
Dr Ingleby also pointed to various aspects of the wife’s evidence in an attempt to suggest that she had demonstrated a lack of candour. In my view, the wife did her best to disclose and explain her financial position, including her assets, income and expenditure. I have already recorded my finding that any confusion or inconsistency associated with the allocation of expenses between the wife and H was not reflective of any dishonesty or lack of candour on the wife’s part. Nor do I accept that the wife intentionally exaggerated the benefits that she received as a result of her inheritance.
I do not accept that the wife has made no effort to obtain employment since “the immediate aftermath” of the separation.[9] In this regard, I refer to the findings made earlier in these Reasons.[10] Even if I am wrong in this regard, I am of the view that she has acted properly, reasonably and responsibly at all times.
[9] See the schedule prepared by the husband’s Counsel.
[10] See paragraph 35(g) above.

Section 75(2) Matters

I have already recorded the ages of the parties.
No evidence was presented to me to suggest that the husband is other than in good health. It would appear that the wife’s physical health is reasonable. I have already commented on her emotional or psychological health.
The husband has the physical and mental capacity to continue in his profession as a barrister. I find that he has the intelligence, determination and emotional strength to regain any focus that he may have lost as a result of the separation and its aftermath. I have already commented that, in my opinion, the wife lacks those resources. That is not to say that the wife is other than intelligent and capable — but the separation has had the impact on her that I have described elsewhere in these Reasons.
I accept the analysis of the husband’s income as performed by Ms Wheeler, and find that the husband has an average weekly income (before tax) of approximately $3,212.00. Further, I find that he has had that income at all times since the date of separation (given that the figure reflects an average of his earnings over a substantial period of time, and given the findings made in paragraph 63 above).
The wife’s evidence was to the effect that she is paid in a cycle comprising $168.00 in the first week and $211.00 in the second. Her average weekly income from her employment is, therefore, approximately $190.00. In addition, the wife earns $50.00 per week from the inspection work that she carries out. As well, she receives dividends of approximately $29.00 per week. In total, therefore, the wife’s income amounts to $269.00 per week — which appears to be exclusive of the interest that the wife receives on the moneys that she currently has invested.
Each of the parties has the assets and the financial resources that I have referred to elsewhere in these Reasons. I shall return to this subject later in these Reasons.
Neither party has the care or control of a child of the marriage that has not attained the age of 18 years.
The husband’s necessary commitments are set out in Part G of his form 12B response. The wife did not seriously challenge any of the expenses, save for the motor vehicle lease payment and the item “minimum credit card repayments”.
Given that the payment of $206.00 per week in respect of the motor vehicle lease is in fact a payment by the husband to G Pty Ltd (which is the trustee of the parties’ superannuation fund), and having regard to the fact that the lease agreement has expired, I find that the payment of $206.00 per week in respect of the lease is neither a reasonable nor a necessary commitment. Similarly, I find that the allowance of $130.00 per week for “minimum credit card repayments” contains a proportion of “double-dipping”, as suggested by Ms Wheeler. If the lease payment is ignored, and the minimum credit card repayment is reduced from $130.00 to, say, $75.00, then it is apparent that the husband’s average weekly expenses (including income tax) amount to $2,029.00 per week. It follows that the husband has an excess of income over expenditure of $1,183.00 per week. If I am wrong in relation to the treatment of the motor vehicle lease payment, then the husband still has an excess of income over expenditure of $977.00 per week.
The wife set out her average weekly expenses in Part G of her form 12 application for maintenance. A comparison with Part F of her financial statement reveals that the “total” column is missing. Further, Ms Wheeler stated that the amount of $70.00 per week allocated to dry cleaning, should, in fact, be $10.00 per week.
I find that the following figures represent a reasonable allowance for the wife’s necessary commitments (as that expression was used by both parties). For reasons which I shall explain later in this Judgment, I have ignored expenses that relate to H:
Food  $125.00
Household supplies  $20.00
House repairs  $10.00
Gas  $20.00
Electricity  $12.00
Heating fuel  $3.00
Telephone  $25.00
Motor vehicle expenses  $75.00
Fares/carparking  $7.00
Clothing and shoes  $135.00
Medical and dental  $20.00
Entertainment  $200.00
Holidays  $100.00
Chemist/Pharmaceutical expenses  $5.00
Gardening/Lawn mowing  $20.00
Cleaning (House/Pool)  $5.00
Repairs — furnishings/appliances  $10.00
Drycleaning  $10.00
Books and periodicals  $7.00
Gifts  $30.00
Hairdressing/toiletries  $45.00
Alarm system  $10.00
RACV  $1.00

Total: $895.00

Certain of the above figures require comment:
a)I have allowed $125.00 for the wife’s food. I accept that the wife probably spends something in the order of $200.00 per week for food for herself and H. I find, however, that the allocation between the wife and H is likely to be incorrect. In the circumstances, and taking into account the wife’s evidence that she “eats more than H”, but bearing in mind that the husband asserts that he spends only $100.00 per week for food for himself, I am satisfied that $125.00 per week is a reasonable allowance.
b)The wife’s evidence was that H is or has been in the past a heavy user of the telephone. Once again, I accept that the total figure of $56.00 per week for telephone expenses may well be correct, but I find that it is likely that the wife has erred in the allocation of the expense between herself and H.
c)I have allowed $100.00 per week for “holidays” (as opposed to the wife’s estimate of $150.00 per week). The wife’s evidence was that the parties had travelled overseas approximately once per year. They had also had holidays within Australia. In cross-examination, the wife conceded that some flights had been booked by the use of frequent flyer points, and that some holidays related to the husband’s former employment. In the circumstances, I am of the view that some allowance for reasonable holidays for the wife pending trial is appropriate. Although I do not believe that the wife has intentionally exaggerated her estimate for this item, I find that the amount that I have allowed is fair and adequate to cover the relevant period. The approach that I have taken is somewhat “summary”, but such an approach was recognised as being appropriate in cases of this nature in Wilson (1989) FamLR 205 (at 211 — per Nygh J).[11]
[11] In any event, one (and, I note, one only) of the purposes of the “nest egg” referred to later in these Reasons is to provide for holidays. In my opinion, it may not be unreasonable for the wife to have to resort to her capital if she wishes to enjoy a more expensive style of holiday, or more frequent holidays, than she may perceive is/are commensurate with her financial position or status as delineated by the terms of the orders that I propose to make.
Apart from the amounts I have referred to above, I accept the wife’s evidence as to her current expenditure.
I am conscious of the wife’s evidence that, on the one hand, she has “maintained the same standard of living that (she) enjoyed prior to separation”[12] and that, on the other hand, she now “goes out more often than she used to” (which was a statement made by the wife during the course of her evidence). In my opinion the two statements are not necessarily inconsistent. Prior to the date of separation the wife did not have to give serious consideration to her ability to afford any (or almost any) item, outing or form of entertainment that she may have reasonably desired. The presence of the husband in her life meant that many of her activities and outings were with him or involved him. Prior to the separation, the parties could spend time together at the former matrimonial home if they were minded to do so, and each was company for the other. The breakdown of the marriage has meant that the wife is now without a partner in that sense and, in my view, it is reasonable for her to seek and enjoy the company of her friends to avoid the loneliness and retrospection that would otherwise beset her. On an interim basis, at least, she should not be required to prune such expenditure significantly. To do so, and to deal with the emotional consequences that may result from such externally or internally imposed limitations, would cause the wife hardship. And having regard to the assets and financial resources of the parties, the husband’s excess of income over expenditure and the interim nature of the spousal maintenance orders that are sought, I conclude that such a limitation would also be unnecessary and unfair. It is especially unfair when regard is had to the fact that the husband has the financial capacity to meet all his reasonably claimed expenses and to pursue what is clearly, for him, a positive and satisfying relationship with D.
[12] See paragraph 6 of the wife’s affidavit.

Neither party has the responsibility to support any other person.
Ms Wheeler submitted that the wife is not required to demand board from H in order to supplement the wife’s income. The reality is, however, that any board to be received from H would not be for the purpose of “supplementing the wife’s income”. Its only purpose would be to offset the actual cost to the wife of providing that board. The case of Burton (1979) FLC 90-610 does not assist the wife. In Burton, the wife’s brother in law had employed her and had assisted her financially in the past (and was prepared to do so in the future). Opas J asked himself the following question: Can it be said that the assistance of a generous relative can be a bar to a maintenance order? His Honour’s response was as follows:
It seems to me that to answer this question in the affirmative as a general proposition would be an affront to common sense, as well as being contrary to law. Certainly, such a source of income falls within section 75(2)(b) and the Court is bound to take it into account, as I do. What weight the court gives to such a source of income will depend upon the facts of each individual case. In a case where there is doubt as to a party’s ability to fund a maintenance order, the fact that the other party is being, in part, supported or assisted by the charity of a relative may be given great weight. In the present case it seems to me to be an absurd suggestion that the husband should not contribute to the support of his former wife, the mother of his children, because she is being helped by his brother in law. As Counsel for the wife has commented, this factor may support the proposition that the maintenance order be increased rather than the proposition that it should be discharged.
Ms Wheeler submitted that it would be against public policy to shift the burden of responsibility from maintaining a party to a marriage from the other party to one of the children. In my view, this misstates the effect of the husband’s submission. The wife seeks spousal maintenance from the husband. One of the bases upon which her claim is constructed is the level of her expenditure — when compared with her available income. Included within her expenses are various items which can fairly be regarded as containing an element or form of subsidisation of H’s living expenses. The wife then seeks to recoup that subsidy, or a proportion of it, from the husband. Seen in that light, it is apparent that the wife proposes that the husband be responsible (or partially responsible) for the financial consequences of her decision to subsidise H’s living expenses. H is an adult with an independent income (of some $400.00 per week). For better or for worse, the husband does not wish to subsidise H’s expenses, and the law does not oblige him to do so — except, of course, in certain recognised circumstances[13]. It is certainly not against public policy to expect H to contribute a reasonable amount towards her own upkeep. The husband does not expect H to shoulder the responsibility of maintaining the wife. He expects her to shoulder the responsibility of maintaining herself.
[13] See s. 66L of the Family Law Act
Neither party is eligible for a relevant pension, allowance or benefit within the contemplation of section 75(2)(f).
Both parties are entitled to a reasonable standard of living. I am conscious, of course, that these are interim proceedings. In essence, the wife seeks access to the husband’s income until such time as the Court can make an order for alteration of property interests/spousal maintenance in such a manner as to enable her to be financially independent of the husband (or, at least, as financially independent of the husband as can be achieved in all the circumstances of the case).
In Wilson (1989) FLC 90-033, the Full Court dealt with interim spousal maintenance in circumstances where the parties had assets exceeding $45 million, and maintained a lavish lifestyle. The Court rejected the concept that where the respondent has ample means to support the applicant’s pre-separation standard of living, then that standard should not be reduced. Strauss J said (at page 77,453):
A standard of living that in all the circumstances is reasonable for the party claiming maintenance is not necessarily the same standard as that enjoyed by the party who is ordered to pay maintenance.
I am fully cognisant of the fact that there is no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit[14]. I do not regard myself as being bound by any presumption, rule or principle to such an effect. Nevertheless, in the circumstances of this case, I find that it is unreasonable to expect the wife to reduce her standard of living to any significant extent on an interim basis. I am of this view because the husband has the ability to pay the quantum of spousal maintenance sought by the wife and because the wife is lacking the emotional resources, companionship and support that are currently enjoyed by the husband. She is financially and emotionally vulnerable, and the making of orders that will have the effect of enabling her to continue her pre-separation standard of living is unlikely to cause the husband any significant financial discomfort in the short or long term. I would not think it proper or reasonable — in the circumstances of the case now before me — for the wife to have to reduce her standard of living on an interim basis.
[14] See Bevan (1995) FLC 92-600.
In my opinion, the matters referred to in section 75(2)(h), (j), (k), (l), (m) and (n) are of no significance in the context of these proceedings.
Section 75(2)(o) requires the Court to take into account any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account. In effect, the husband’s argument that the wife should utilise $17,000.00 of “capital” by drawing down funds at the rate of $300.00 per week relies on a combination of the matters contained in section 75(2)(b) and (o).
In my opinion, there is no logical or relevant difference — for the purpose of the husband’s real argument in this regard — between moneys that represents the wife’s inheritance and those that do not. All of the wife’s assets will eventually be taken into account in the substantive proceedings — in some way.
A party’s income is not the only criterion by which his/her ability or inability to support himself or herself adequately is to be measured. Nor is it the sole criterion by which his/her ability to support the other party is to be measured:
A party to a marriage can…neither make nor resist a claim for maintenance simply on the basis that he or she is income poor if he or she otherwise has sufficient assets or financial resources to provide for maintenance. This does not, however, mean that a spouse must deplete his or her entire capital before he or she can make or resist a claim for spousal maintenance. The Court regards it as appropriate that a reasonable amount of capital be retained by a spouse and not be taken into account in determining eligibility for maintenance. What is reasonable depends upon the facts and circumstances of each case.[15]
[15] See “Family Law” by Dr A. Dickey QC (4^th Edition — Law Book Company, 2002) at page 477.
In Bevan (1995) FLC 92-600, the Full Court (at page 81,980):
…we do not think that the law requires that a wife should deplete an already comparatively meagre capital sum, to enable a much higher earning husband to avoid his obligation to maintain a former spouse who is in financial circumstances such as those in which (the wife in Bevan) finds herself.
I am conscious of the fact that the decision in Bevan concerned final (as opposed to interim) orders relating to spousal maintenance. The orders in that case were made at the same time as the issue of property settlement was dealt with. I accept that the facts in the matter of Bevan can be distinguished from the facts in the present case, and I therefore do not feel myself bound by the reasoning in it.
In Mitchell (1995) FLC 92-601, the Full Court said (at page 81,995):
…(the wife’s) age and her limited earning capacity would make it legitimate for her to set aside a reasonable capital sum by way of a nest egg against future contingencies and uncertainties such as illness or holidays or other significant changes in her life which may call for expenditure which would go beyond the parameters of a small income.
It is also necessary…to have regard to the standard of living of the parties and the financial circumstances of the other person: s.75(2)(b) and (g). 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”. Where the line is to be drawn will depend upon the circumstances of individual cases.
Mitchell was also a case dealing with permanent as opposed to interim maintenance. The principle set out in Mitchell, however, seems to me to be a logical and appropriate one in a case such as that now before me. It is clear from the schedule prepared by Dr Ingleby that the wife would not be able to meet her reasonable needs (even allowing for the alleged “exaggeration”) unless she were to draw down on her savings at the rate of approximately $300.00 per week. Presumably, the erosion of the wife’s capital would be matched by a corresponding accumulation of savings within the control of the husband (given my finding that the husband has an excess of income over reasonable expenditure on his part). Human nature being what it is, and the vicissitudes of life being what they are, it is a fair assumption that the husband’s expenditure during the period leading up to trial is likely to increase to the extent that it will consume that excess of income over expenditure. After all, the husband might fairly (and probably innocently) reckon that an accumulation of savings at this stage of the proceedings might lead to the wife receiving a more favourable order for property settlement than might otherwise be the case. I stress, however, that I make no finding in this regard.
Whilst income may not be the sole criterion when considering spousal maintenance issues, it seem to me that it is an extremely important one in considering interim spousal maintenance issues. A fortiori, that must be the case where sufficient assets exist in the hands or under the control of one party or the other to enable an appropriate adjustment to be made for all relevant contribution and section 75(2) factors at trial.
In any event, the wife’s expenditure on a weekly basis comprises an average of expenses that arise and must be met at a variety of times, or on an ad hoc basis. In the present case, I am of the view that it is reasonable for the wife to retain her savings by way of a nest egg against future contingencies and uncertainties — irrespective of the fact that the intention of any order for periodic spousal maintenance would be to cover such contingencies. Although the retention of such a nest egg may or may not be fair or reasonable if these were final as opposed to interim proceedings, it seems to me that it is appropriate in the circumstances of this individual case, and at this particular time.

Conclusion

I have already observed that it is not in dispute in the present case that the wife has passed the threshold test imposed by section 72.[16]
[16] See paragraph 49 above.
I have considered the provisions of section 74 and 75(2).
I understand that there is no fettering principle to the effect that pre-separation standard of living must automatically be awarded to the wife where the husband’s means permit.
I understand that that any order that I may be minded to make for interim maintenance for the wife must be reasonable in all the circumstances of the case. Obviously, the order that I propose to make is the one that I consider proper within the meaning and contemplation of section 74.
I have concluded that a reasonable allowance for the wife’s necessary commitments is the sum of $895.00 per week. Her income is $269.00 per week (exclusive of the interest that she receives on the money that she currently has invested). It follows that the wife has a shortfall of $626.00 per week.
Whether or not my treatment of the motor vehicle lease payments is correct (and, indeed, whether or not my notional reduction of the husband’s claimed allowance of $130.00 per week for “minimum credit card repayments” is accepted), it is apparent that the husband is reasonably able to meet the shortfall experienced by the wife.
When I have regard to all the matters to which I have referred in this Judgment (and, in particular, the section 75(2) factors), I am conscious of the lack of precision inherent within the determination of spousal maintenance and property settlement issues under the Family Law Act. Such imprecision, inevitably and perhaps necessarily, infects the reasoning supporting awards of spousal maintenance at all levels. If an example is required, then (with the greatest of respect to their Honours comprising the Full Court) the process by which a shortfall of $30.00 per week was converted to an award of spousal maintenance of $50.00 per week in Bevan[17] would suffice.
[17] (1995) FLC 92-600 at 81,980.
Taking into account all of the factors discussed above, I conclude that an appropriate award of interim spousal maintenance is $625.00 per week.
I find that the husband has had the means to afford to pay spousal maintenance at (at least) the rate of $625.00 per week since the date of separation and, further, that the wife has had a need for such maintenance since that time. In my view, and in those circumstances, it is logical and appropriate to order that the husband’s obligation to pay periodic spousal maintenance at the rate of $625.00 per week should commence from the date upon which the wife filed her application for maintenance — or in other words, from 7 December 2001.
The Court has power to make a retrospective maintenance order. In my view, and having regard to the income at the husband’s disposal since the date of separation, it is appropriate to make such an order. I am aware that my decision in this regard will create “instant arrears” of spousal maintenance, but it is important to recognise that such arrears do not comprise ‘lump sum spousal maintenance’. They are simply an accumulation of periodic spousal maintenance that, in my view, ought properly to have been paid by the husband to the wife from the time she made her application for maintenance. Put another way, they are moneys that the husband has been able to retain and utilise for his own purposes at the expense of what I have concluded is the wife’s proper entitlement to spousal maintenance.
In Milankov (2002) 28 FamLR 514, counsel for the husband had submitted that an order for maintenance could not be made with retrospective effect unless it could be established that the liable spouse was presently reasonably able to meet any arrears that would be created by such retrospectivity. The Full Court did not agree. Kay J said (at paragraph [100]):
In my view, the power clearly exists to make a retrospective maintenance order. Whether it is appropriate to make an order will depend upon the facts presented. The making of any such order is a matter of discretion for the trial judge and will not be interfered with by an appellate Court absent some demonstrable appealable error.
In this case (the trial judge) found that at the time the maintenance obligation arose, namely upon the breakdown of the marriage, the husband had the capacity to pay and the wife had the need. In those circumstances, the fact that the husband chose not to pay but to spend his money elsewhere did not, (in the trial judge’s) view relieve him from the potential of an order being made at a later time, even though at that later time he may no longer have the means and ability to meet the order. I see no error in (the trial judge’s) approach.[18]
[18] The other members of the Full Court agreed with Kay J in relation to this issue.
In any event, it is apparent that the husband does have the capacity to meet the arrears to be created as a result of the order that I propose to make. He has in excess of $60,000.00 in a cash management call account.

Orders

Having regard to the findings that I have made, I propose to make the following order:
(1)With effect from Friday 7 December 2001, and until further order of the Court, the husband do pay to the wife the sum of $625.00 per week as and by way of spousal maintenance.
I now propose to hear Counsel for the parties as to the precise form of the orders to be made to give effect to the husband’s agreement to ensure that the wife retains the use of the motor vehicle currently in her possession, that the husband meets any relevant lease payments associated with the vehicle and that the wife continues to be covered under the husband’s private health insurance.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: Paul O'Halloran

Date: 5 September 2002