Lynn and Lynn - [2008] FMCAfam 820

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LYNN & LYNN

[2008] FMCAfam 820

FAMILY LAW – Parenting – interim application by wife for parties’ 21 month old child to live with her – spend daytime periods only with father – exclusive occupation of former matrimonial home – interim spouse maintenance.

Family Law Act 1975

Bassett v Bassett (1975) 1 All ER 513 at 520
Bevan & Bevan (1995) FLC 92-600
Goode & Goode [2006] FLC 93-286
In the Marriage of Davies (1976) 1 Fam LR 524
In the Marriage of Davis (1982) 8 FamLR 975
Petersen & Petersen [2003] FamCA 1177
Price (unreported 12 July 1982)

Applicant:

MS LYNN

Respondent:

MR LYNN

File Number:

SYC 3021 of 2008

Judgment of:

Sexton FM

Hearing date:

18 July 2008

Date of Last Submission:

18 July 2008

Delivered at:

Sydney

Delivered on:

4 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr B. Richards

Solicitors for the Applicant:

Swaab Attorneys

Counsel for the Respondent:

Mr M. Kearney

Solicitors for the Respondent:

Joseph G. Capogreco & Associates

THE COURT ORDERS THAT:

The husband vacate the former matrimonial home at Property N by 4.00p.m. on Saturday 9 August 2008 and thereafter the husband be restrained from entering the former matrimonial home without the prior consent of the wife and the wife have exclusive occupation of the home.
Pending settlement of the sale of the former matrimonial home, each party be restrained from removing from the former matrimonial home any furniture, furnishings or chattels without the prior written consent of the other party.
In default of agreement as to the division of the contents of the former matrimonial home by a date 21 days prior to settlement of its sale, the following occur:
(i)The wife appoint an accredited valuer to prepare a full inventory of the contents of the home and to value the contents;
(ii)The parties share equally the costs of the valuation;
(iii)Each party be entitled to retain items held by that party prior to the commencement of cohabitation and to items personally gifted to that party during cohabitation;
(iv)The wife be entitled to retain [D]’s furniture and play equipment; and
(v)The balance of the items be divided by the pick a pile method in the presence of each party’s solicitors.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The parties have equal shared parental responsibility for the child, [D] born in 2006.
Each party have responsibility for decisions as to [D]’s day to day care, welfare and development during periods he is in that party’s care.
[D] live with the wife.
[D] spend time with the husband:
(i)Each alternate Friday evening from 5.00 pm until 8.00p.m;
(ii)Each Saturday from 8.00a.m. until 1.00p.m;
(iii)Each Sunday from 1.00p.m. until 5.00p.m. extending to 6.00p.m. during daylight savings;
(iv)On one morning each week from 7.15a.m. until 8.00a.m. being a Wednesday unless otherwise agreed, such time to commence after the husband has vacated the home;
(v)On Father’s Day from 9.00a.m. until 5.00p.m;
(vi)On [D]’s birthday from 1.00p.m. until 5.00p.m;
(vii)On the father’s birthday from 1.00p.m. until 5.00p.m; and
(viii)At other times by agreement between the parties.
[D]’s time with the father in accordance with Order (7) be suspended on:
(i)Mother’s Day;
(ii)The first day of Rosh Hashana;
(iii)The first day of Pesach;
(iv)Yom Kippur;
(v)The first 2 days and last 2 days of Chanukah;
(vi)Succot; and
(vii)Purim.
For the purpose of changeover the wife deliver [D] to the husband’s residence at the commencement of his time with the husband and the husband return [D] to the wife’s residence at the conclusion of [D]’s time with him with the exception of the weekday morning when the husband will collect and deliver [D] from the wife’s residence.
Each party keep the other informed as to their respective residential address, residential telephone number and mobile telephone number and advise the other within 48 hours of any change of address or telephone number.
Each party notify the other of any serious illness suffered by [D] and immediately, if practicable, of any emergency admission to hospital or injury suffered by [D] whilst in the care of the other party.
Each party be restrained from making negative comments about the other party in the presence or hearing of [D] or from using a negative tone in any conversation with each other in [D]’s hearing.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
The husband pay the following outgoings in relation to the former matrimonial home at Property N as and when they fall due:
(i)Mortgage instalments;
(ii)Water rates;
(iii)Council rates; and
(iv)Home and contents insurance.
The husband pay private health insurance for the wife and [D].
By way of periodic spouse maintenance, the husband pay the wife the sum of $477 per week, such payments to be deposited into an account nominated by the wife within 48 hours of order, first payment by Friday 8 August 2008 and weekly thereafter.

IT IS NOTED that publication of this judgment under the pseudonym Lynn & Lynn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 3021 of 2008

MS LYNN

Applicant

And

MR LYNN

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern interim parenting arrangements for the parties’ 21 month old son [D], exclusive occupation of the former matrimonial home at Property N and interim spouse maintenance.
The parties separated in January 2008, but have remained living in the former matrimonial home at Property N. The wife claims there is a high level of tension in the household involving verbal and physical abuse by the husband which she finds intolerable and which she believes is distressing [D]. Although the husband acknowledges the poor cooperation between the parties, and some conflict between them, he proposes the parties remain living under the one roof.
By agreement, an order has been made for the sale of the former matrimonial home.
The wife seeks orders that [D] live with her and that she have exclusive occupation of the Property N home, pending its sale. The wife proposes that [D] spend alternate Friday evenings with the husband and a few hours each Saturday and Sunday. The wife also seeks orders that the husband pay the outgoings on the Property N home, including mortgage instalments, private health insurance for herself and [D] and periodic spouse maintenance of $1,000 a week.
The husband believes the present arrangements are working reasonably well for [D]. However, if the court decides to make an order for exclusive occupation, the husband proposes that he remain in the home and the wife move to premises owned by her parents. In the event the parties are living in separate premises, the husband proposes that [D] spend time with him:
i)Each alternate Friday from 5.00p.m (and from Thursday at 5.00p.m. once a month) until Saturday at 5.00p.m;
ii)Each alternate Sunday from 5.00p.m. until Monday at 7.30a.m;
iii)From Saturday 5.00p.m. until Sunday 5.00p.m. on each other weekend;
iv)Each Tuesday from 5.30p.m to Wednesday 7.30a.m; and
v)At times to be agreed on 23 September and 15 October each year, and failing agreement from 12 midday until 6.00p.m.
The husband agrees to pay household accounts for the Property N home and private health insurance for the family, as sought by the wife, with the exception of the mortgage payments if he is not living in the home, but otherwise asks that the wife’s interim application be dismissed.
The wife is 35 and the husband 43 years. The parties started living together at the date of marriage in December 2003. The parties separated in January 2008. Since then, the usual arrangement has been for [D] to be cared for by the husband for a half day on each day of the weekend and on alternate Friday evenings. In addition, [D] has spent a short time with the husband on most mornings when the husband returns from his morning exercise and before he goes to work. Otherwise [D] has been cared for by the wife. The wife has not been in the paid workforce since [month omitted] 2006, just before [D] was born. The husband works full time though says his working hours are flexible.
There are no current parenting orders.

Legal principles in relation to interim parenting

The principles governing parenting cases are set out in Part VII of the Family Law Act 1975. The Full Court in Goode & Goode [2006] FLC 93-286 says in interim proceedings, as in final proceedings, the Court must follow the legislative pathway.
Section 60CA provides that I must regard the best interests of [D] as the paramount consideration. To determine his best interests I must consider the 2 primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3) as far as they are relevant. Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities.

THE PRIMARY CONSIDERATIONS

The benefit to the child of having a meaningful relationship with both the child’s parents.

Each party acknowledges [D]’s need to have a meaningful relationship with each of them. The parties acknowledge their agreement that the wife would stop work and take on the primary caring role for [D] when he was born, and this is what has happened. Each party proposes the wife remain [D]’s primary carer. The wife proposes [D] spend regular time with the husband, but opposes the husband’s application for overnight time.

The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

Each party alleges aggressive, insensitive and abusive conduct by the other since separation and details numerous examples of such behaviour in affidavit material. Each has called for police assistance at different times. Each accuses the other of recording conversations or videotaping the other’s behaviour, to the intense aggravation of the other party. Each confirms their verbal and physical altercations have occurred in [D]’s presence.
The wife complains that the husband repeatedly denigrates her in front of [D], accusing her of mental instability. She claims the husband makes remarks to her such as, “you are fucked in the head; you are so fucked and need to get help;” “you are losing it;” “you are so fucking sick;” “you are so unbalanced and pathetic;” “you are so screwed up and so sick”. The wife deposes to the husband saying to her in front of [D]:
You had better get used to not having [D] at all. I will make sure that the way you carry on you will not have time with [D] at all... I can’t wait til you break down and get help.
The wife deposes to a number of instances when [D] has shown distress and fear when the husband has assaulted her in his presence. She describes instances when [D] has reached out for her and the husband has pushed her away. She describes instances when she has been settling [D] in the night and the husband has intervened, upsetting [D]. The wife says [D] is now wetting himself through his nappy at night requiring fresh pyjamas which had not happened in the previous 6 months.
While the husband gives a different version of the events described by the wife, and denies having raised his voice to the wife or having ever assaulted her, the husband does not deny the regular altercations between the parties in [D]’s presence.
While I can make no findings as to whether either party’s version of the facts is the truth, I am certainly persuaded the parties have been unable to contain their animosity towards each other in recent months, and on each party’s version of events, their behaviour is highly likely to be causing [D] an unacceptable level of distress. I take this into account.

THE RELEVANT ADDITIONAL CONSIDERATIONS

The nature of the relationships between the child and each parent and the child and other persons.

At this stage, there is no objective evidence before the court as to the nature of [D]’s relationship with each party. Each party, however, acknowledges the importance of [D]’s relationship with the other and I find it likely [D] has a close relationship with each of them.

The willingness and ability of each parent, and in this case, each party, to facilitate and encourage a close and continuing relationship between the child and the other parent.

The husband complains that the wife takes [D] to her room in the mornings to prevent him spending any time with him before he goes to work. I accept this may be happening given the tension between the parties and their inability to relate to each other. However, I am not persuaded either party is actively obstructing [D]’s need to relate to the other party. It seems to me the wife ensures [D] does spend quality time with the husband when the husband is available. She leaves them alone together in the home. It seems the husband accepts [D]’s need to spend the majority of his time with the wife and has not interfered with that arrangement.

The capacity of each parent to provide for the needs of the child including emotional and intellectual needs; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent.

The wife has been [D]’s primary carer since he was born. The wife claims the husband had little involvement in his day to day care until after separation, when he got up to [D] in the night for the first time. The wife claims the husband does not contribute to [D]’s care outside the hours he has been caring for him since separation.
Despite the wife’s criticism of the husband’s minimal contribution to [D]’s care, the wife has been leaving [D] in the husband’s care for half a day on each weekend day and on alternate Friday evenings. She makes no complaint about his care of [D] during those periods.
I am satisfied [D] is well cared for physically and intellectually in the care of each party. I am not satisfied the parties have been appropriately focussed on [D]’s emotional needs in recent months, each being preoccupied with their animosity towards each other. However, I am in no doubt that each party has the capacity to meet [D]’s emotional needs when issues relating to their separation have been resolved and they accept the need to focus on the situation from [D]’s point of view. I have already made an order for the parties to attend Relationships Australia to address their need to become more child-focussed.

The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision–making about his welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.

I do not find any issues of significance arise under this factor.

The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.

This, in my view, is the significant issue in this case because [D] is so young and the parties are at this stage in significant conflict.
The husband seeks orders providing for [D] to spend 4 to 5 nights a fortnight with him, which is a substantially shared care arrangement. Preliminary findings of recent research published by Dr Jennifer McIntosh and Professor Richard Chisholm, a former Judge of the Family Court of Australia, suggest that young children will suffer negative consequences if they are required to spend equal or substantial time with each parent, when their parents are in continuing conflict.
At page 7 of the report the authors consider the nature of the strain imposed on very young children and infants by developmentally inappropriate living arrangements. The authors say this[1]:
Part of the developmental conundrum posed for young children of divorce is this: their attachment formation is likely to be poorly affected (or to become ‘disorganised’ in theoretical terms) when that infant does not have a continuous experience of reliable care with either parent. Shared care arrangements that involve frequent moves from one parent to another can, inadvertently, bring about this experience. Frequent transitions of care and absences from each parent necessarily interrupt the infant’s experience of care with each parent, especially their relationship with a primary carer when there has been one. This brings about potential developmental difficulties for infants, particularly those with parents who remain acrimonious and struggle to facilitate a smooth transition for the infant.
It is well documented that conflict between parents has an adverse impact on their ability to parent sensitively, and inter-parental conflict brings a higher likelihood of harsh styles of discipline and diminished emotional responses, which are parenting behaviours associated ultimately with the child’s emotional insecurity and social withdrawal.
[1] McIntosh, J and Chisholm, R (2007) “Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research” Australian Family Lawyer Vol 20, No. 1 at pp 4 to 5
Further on they say [2]:
There are important developmental reasons... to be cautious about the recommendation of substantially shared care for children under four. Indeed we hope we have shown in this section why caution becomes more urgent in the case of the infant and the young child of high conflict divorce.
[2] At page 5
Ms Alison Tucker, an experienced psychologist from Adelaide, gave a paper at the recent National Family Law Conference[3]. Her paper concerned “the imperative that children’s development is not compromised.” She says “a significant, if not the greatest, risk factor beyond direct psychological or physical harm to that development is enduring stress.” Ms Tucker says children are at risk of enduring stress if the post-separation parenting arrangements are too demanding for them. She says:
The more developmentally cautious approach is to ensure that very young children have consistency of care. ....What can be in conveying this cautious approach to parents is that it means that very young children have one primary home base, particularly at night. Many parents place a unique meaning on their children staying overnight. While this is understandable on the basis of their (the parents) needs, night time is a particularly developmentally vulnerable time for many young children...
Do not place too many developmental demands on them. If in doubt, be cautious. In the absence of effective co-parenting communication, be very cautious.
[3] Tucker, A (2008) “Shared Parenting: Public Perception vs Legislative Reality: Our Role in Making it Work for Children” The 13^th National Family Law Conference Adelaide
While I accept that this is not a case involving the highest level of acrimony and distrust the court sometimes sees, I am not satisfied the court can afford to disregard these warnings, given the level of hostility between the parties and [D]’s very young age.
[D] is used to being with the wife most of the time while spending some daytime hours with the husband. [D] is not accustomed to spending nights away from the wife. I am satisfied any significant change to these arrangements is likely to place [D] under unnecessary stress. This is a factor to which I give considerable weight.

Any other relevant fact or circumstance.

It is common ground that the wife is a practising Jew and observes all the Jewish festivals. The husband does not challenge the wife’s assertion that he is not a practising Jew and does not observe the religious traditions of Jewish festivals. The husband did not oppose the wife’s application to suspend the husband’s time with [D] on some of these days of religious observance. This is a factor I take into account.

PARENTAL RESPONSIBILITY

Each party seeks an order on an interim and final basis for equal shared parental responsibility and on an interim basis I am satisfied it is in [D]’s best interests for that order to be made. Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent.
In accordance with the legislation, I must however consider whether making orders that [D] should spend equal time, or if not equal time, substantial and significant time with each parent would be in the best interests of [D] and whether it is reasonably practicable. As already noted, I am not satisfied such an arrangement would be in [D]’s best interests at this time.
The court must find the balance between the need to ensure [D]’s relationship with the father is maintained, while limiting changes in [D]’s arrangements, particularly as the co-parenting environment is currently so negative. I accept the wife’s counsel’s submission that [D] has had to face significant adjustment since the parties separated in January and further changes should be minimised. I accept the wife’s counsel’s submission that the court should have particular regard to the fact that [D] has not spent a night away from the wife since separation.
While I also accept the husband’s counsel’s submission that the husband’s role in [D]’s life should not be marginalised, I do not accept that it follows that [D] must therefore have overnight time with the husband at this interim stage. As already noted, I find it necessary to be cautious in formulating the interim parenting arrangements, given the hostility between the parties and [D]’s young age. I have decided [D]’s interests are likely to be served best by him spending all overnights with the wife, while spending regular time with the husband substantially along the lines the parties put in place after separation. [D] will therefore spend time on each weekend day with the husband, as well as alternate Friday evenings, and one early morning period each week.

Legal principles in relation to exclusive occupation

The principles in relation to exclusive occupation are clearly set out by her Honour Justice Boland in the 2003 decision of Petersen and Petersen. [4] Section 114(1)(b) of the Family Law Act 1975 provides that the Court may grant an injunction restraining a party to the marriage from entering or remaining in the matrimonial home. The Full Court in Davies [5] set out the criteria for a court exercising its discretion under s.114:
…that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of children, hardship to either party or the children and, where relevant, the conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from that home of the first party.
[4] [2003] FamCA 1177
[5] (1976) 1 Fam LR 524
Her Honour Justice Boland then adopts as the current law on this issue the judgment of Justice Lindenmayer in the decision of Price [6] approved in the Full Court decision of Davis [7] where their Honours say:
In my opinion... case demonstrates a softening of the court’s attitude towards applicants for exclusive occupation orders. It seems to indicate that it is no longer necessary that such an application show it is impossible, or intolerable, for him or her to continue in co-occupation of the house with the other party or that there has been some conduct by the other party which justifies his exclusion from the home. All that is necessary it seems is that the court should regard the situation between the parties as being such that would not be reasonable or sensible or practical to expect them to continue to remain in the home together.
[6] Unreported 12 July 1982
[7] (1982) 8 FamLR 975 at 977
As submitted by the wife’s counsel, the court may also grant an injunction for the welfare of a child under s.68B(1)(c)(i) of the Act to restrain one party from remaining in the former matrimonial home. This is a wide ranging injunctive power limited only by the requirement that the order is “appropriate for the welfare of the child”. Justice Cumming Bruce in Bassett v Bassett [8] said:
Where there are children whom the mother is looking after, a major consideration must be to relieve them of the psychological stresses and strains imposed by the friction between their parents as the long term effect on a child is liable to be on the utmost gravity...
[8] (1975) 1 All ER 513 at 520
In the present case, given the level of acrimony between the parties, I am persuaded that it would not be reasonable or sensible or practical, nor would it be appropriate for [D]’s welfare, to expect the parties to continue to remain in the former matrimonial home at Property N together, pending its sale. Not surprisingly, the husband reports that on one occasion when the police were called, the police officer stressed the need to expedite the parties’ separation for [D]’s sake.
I have considered the practicalities of a move for each party. On the husband’s side, he owns an apartment in Property B and the tenancy expires in mid-August 2008. According to the wife, not challenged by the husband, the husband has a sister and parents living in the eastern suburbs, with room in their homes to accommodate him. The wife has checked the rental market in the eastern suburbs and annexes to her affidavit a printout of available rental units in July 2008. This printout supports her contention that either party could rent adequate alternative accommodation for $400 to $500 a week in the Eastern suburbs.
The husband says his Property B apartment is too small for him if [D] is spending overnight time with him. He says he requires a home office facility for working out of hours. He says his tenants wish to extend their lease and he needs the income to meet expenses.
On the wife’s side, the husband’s counsel submits the wife and [D] can move to one of the wife’s parents’ properties, given the wife has asserted that if her application is unsuccessful, she will move to live with her parents in their 2 bedroom unit. The husband’s counsel tendered a letter from the wife’s solicitors [9]which states one alternative for the wife is to move in to her parents’ home with [D] pending finalisation of the matter. The husband says the wife’s parents own a unit in Property C which they rent out, and the wife could also move there.
[9] Exhibit 8
I do not accept the husband’s counsel submission that the wife’s application for exclusive occupation must fail, given she has not established a ‘need’ to remain in the Property N home. I must weigh each party’s accommodation options and the hardship which will inevitably be caused to the party required to move. On balance, I have decided the husband rather than the wife and [D], should leave the Property N home.
[D] has always lived in the Property N home. [D] has his own room, his playthings and all things familiar to him there. Although [D] will have to move when the home is sold, I agree with the wife’s counsel that it is in his interests for his moves to be minimised.
The husband has full time work and spends much of his time away from the home, enjoying an early morning exercise routine most mornings and working a long day. The husband, as a single person, will in my view find it easier to find accommodation at a reasonable price, than the wife with a toddler. The husband earns a high income. If he chooses to live in his Property B apartment he can do so. If he chooses to rent alternative accommodation or stay with members of his family he can do so. I have allowed the husband a few days to organise his alternative accommodation and have made orders to assist the parties to resolve division of the contents of the home.

Interim spouse maintenance

Section 72 of the Family Law Act 1975 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 himself or herself 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 s. 75(2).
Section 74 provides that the court may make such order for spouse maintenance as it considers proper. The Full Court in Bevan[10] held that an award of maintenance should not be at a subsistence level and should pay proper regard to the factors set out in s.75(2). The Full Court held that “reasonableness” is the guiding principle.
[10] (1995) FLC 92-600
The parties are in good health. The wife has the majority care of [D] who is 21 months of age. Neither party has a responsibility to support any other person apart from herself/himself and [D] and neither party is living with another person. Section 75(2)(b) requires the court to have regard to the income, property and financial resources of each party and each party’s physical and mental capacity for appropriate gainful employment.
The wife has not been in the paid workforce since [D] was born. The husband says it was his expectation that the wife would return to the workforce when [D] started school. The husband does not submit that the wife can adequately support herself at this time, while caring for [D], and I am satisfied in the circumstances it is reasonable for the wife to remain out of the workforce in the immediate future.
The wife’s financial position. The wife receives an income of $101 a week, comprising dividends of $3, interest on her ING account of $40 a week which is diminishing as the wife draws on her ING account for living expenses. Centrelink provides her with the balance of her income, which the court must disregard in spouse maintenance proceedings.
In her Financial Statement sworn on 20 May 2008, the wife deposes to weekly expenses of $2,412 which includes the mortgage on the former matrimonial home of $1,335, rates of $20, life insurance of $17, car insurance and registration of $45, health insurance of $42 and building and contents insurance of $29. The wife deposes to additional weekly expenses for herself alone of $416 including food at $96, repairs at $5, utilities at $12, clothing of $71 and entertainment at $47. If the outgoings on the former matrimonial home are excluded, the wife has expenses for herself of $477 a week. These figures were not the subject of challenge, and I find them reasonable. The wife deposes to expenses for [D] of $455 a week. The figures were not challenged. As the wife is presently receiving no child support to offset these expenses I am satisfied she has a shortfall of $412 a week on [D]’s expenses, disregarding her Centrelink payments, without contributing to her own support at all.
The wife says the balance of her ING savings account was $4,178 on

7 July 2008
. She owns shares with a value of $1,378 and at the date of swearing her Financial Statement held funds of $847 in her CBA account. She has a Mercedes motor vehicle and a superannuation entitlement of $36,367. The authorities are clear that an applicant for spouse maintenance does not have to use up all assets and capital to satisfy the requirement that she is unable to support herself adequately. On the basis of these figures, I am not satisfied the wife can adequately support herself.
The husband’s financial position. The husband deposes to a base salary of $200,000 per annum including superannuation with two separate performance based bonus payments that can add a further $90,000 to this amount. The husband says he has not been paid a bonus since the establishment of a new employment structure in September 2007, and gives no indication as to whether or when he is likely to receive a bonus. The husband’s employment contract with [M] Pty Ltd dated 1 September 2007 [11]states that his remuneration package also includes a quarterly profit share. In addition, the husband receives rental income from his Property B apartment of $450 a week. The husband’s total gross income is therefore $4,296 a week, without bonuses.
[11] Annexure C to wife’s affidavit sworn 2 June 2008
After payment of taxation and superannuation, (a total of $1,533 a week) the husband receives $2,763 a week. He sets out his weekly expenses in his Financial Statement sworn 1 July 2008 as:
(i)     Mortgage    $1,356
(ii)    Rates                               $20
(iii)   Other rates  $103
(iv)    Life insurance               $34
(v)     Income insurance            $28
(vi)    Health insurance             $45
(v)     Car registration               $8
(vi)    Minimum visa                  $115
which totals $1,709 a week. The husband does not include an expense for child support. The husband lists other weekly expenses totalling $1,072.55, which include utilities for the two properties, an internet service fee, car and scooter expenses for himself and the wife, gym membership, cycle training expenses, food at $200 a week, clothing, entertainment at $226, repairs at $38, books and magazines at $39, membership (nature not specified) at $14, mobile phone expenses at $11, and PAYG tax of $95.77. The husband’s day to day expenses for himself for food and entertainment are substantially higher than those of the wife.
I do not accept all these figures as necessary and reasonable weekly private expenditure of the husband each week. The husband does not say whether any of these listed expenses are tax deductible nor whether the PAYG tax figure is included in his weekly tax figure. It is my understanding that the expenses on his Property B property would be deductible and it is likely his mobile phone expense would also be deductible. The husband does not explain why he has a minimum credit card expense of $115 a week on a liability of $2,500 as set out in his Financial Statement.
Allowing for some adjustment therefore on the figures the husband has provided, and allowing for parity in each party’s expenditure on such items as food and entertainment, I am satisfied on his income and expenses alone, the husband has a minimum of $460 a week available to him after meeting his reasonable and necessary expenses. This is further confirmed when I have regard to the husband’s discretionary expenditure of $847 on 15 July 2008 for an I-phone[12], of over $1800 on “[name omitted” at [omitted] airport in the last 13 months [13], and on cycling equipment[14].
[12] Exhibit 3
[13] Exhibits 2 and 6
[14] Exhibits 4 and 6
In his Financial Statement sworn on 1 July 2008, the husband discloses his assets as the Property N home, his apartment at Property B, shares with a value of $1,060, savings of $1,136 in ING, a Landrover, a scooter, and a superannuation entitlement of an estimated $160,000. The husband discloses a mortgage liability of $415,000 and a credit card liability of $2,500. In his affidavit, the husband says there is a redraw facility of approximately $115,000 available on the mortgage secured by the home.
The wife’s counsel tenders documents to show the husband did not fully and frankly disclose his financial position in his sworn Financial Statement of 1 July 2008. Exhibit 2 reveals that the husband failed to disclose a Commonwealth Bank account in his name with a balance at the relevant date of $12,325. Exhibit 7 reveals the husband has shareholdings in [P] Pty Ltd and that [P] Pty Ltd owns shares in a company known as [A] Pty Ltd. Neither were disclosed in the husband’s Financial Statement. The husband did not disclose his American Express Corporate credit card, nor the funds held in the

[P] Pty Ltd bank account which had a balance of $10,280 the day before the husband swore his Financial Statement [15]. Annexure B to the wife’s affidavit sworn 17 July 2008 is a statement for a Natwest account held by the husband in the United Kingdom with a balance of 691.27 at 8 June 2008, presumably in pounds sterling. Annexure C to the wife’s affidavit sworn 17 July 2008 is an NAB Flexiplus mortgage statement in the name of the husband with a debit balance of $256.78 as at 30 May 2008. The wife’s unchallenged evidence is that the husband has also failed to disclose in his Financial Statement his road bike, his boat or his kayak.
[15] Exhibit 9
While I accept that there may be an element of carelessness in the husband’s preparation of his Financial Statement, and that the husband may have provided some documents which reveal the existence of assets not otherwise disclosed, I do not accept the husband’s counsel’s submissions that these omissions are of no consequence. The husband has a statutory obligation to fully disclose his financial position in a frank and open manner. It should not have been necessary for the wife to issue subpoenas to uncover assets which should have been frankly disclosed. I am not satisfied on the evidence before me, that I can make precise findings as to the husband’s true financial position.
I accept the wife’s counsel’s submission that the husband does have the capacity to pay periodic spouse maintenance in accordance with the wife’s established need of $477 a week, in addition to meeting the outgoings on the Property N property including the mortgage, and the family health insurance premiums. While I accept this obligation may require the husband to reduce his discretionary personal expenditure, I am not satisfied it will require the husband to draw on capital. The order in relation to the payment of the outgoings on the home, is only short term while the home is sold, and as the wife’s counsel submits, the husband may receive a significant bonus which has not been taken into account in the figures I have referred to.
According to the current assessment for child support issued by the Agency on 2 June 2008 [16], the husband is liable to pay child support of $496.58 per month, equivalent to $114.20 a week. The assessment is based on an annual child support income for the husband of $86,747, a child support income for the wife of $3,184 and an approximately equal shared care arrangement. At the time of hearing, the husband’s counsel said the husband was not yet making any child support payments. While the husband’s liability for child support is likely to increase as a result of the parenting orders I have made, the husband is also likely to receive some credit for non-agency payments in relation to mortgage instalments and health insurance payments. On the evidence available to me, I am unable to make a finding as to what child support the husband will be required to pay.
[16] Exhibit 1
However, even if the husband does have a periodic child support obligation, I am satisfied the husband also has the capacity to pay spouse maintenance as ordered.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Skye Owen

Date: 4 August 2008