Macarthur & Macarthur
[2021] FedCFamC1F 15
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Macarthur & Macarthur [2021] FedCFamC1F 15
File number(s): BRC 6154 of 2020 Judgment of: ALTOBELLI J Date of judgment: 3 September 2021 Catchwords: FAMILY LAW – PROPERTY – application to stay interim spousal maintenance and property orders – application made in circumstances where a notice of appeal has been filed – whether the orders ought to be varied – whether there has been a change in circumstances sufficient to justify a variation of the spousal maintenance orders – whether there are adequate grounds to grant the stay – stay declined – order for spousal maintenance varied due to changed circumstances. Legislation: Evidence Act 1995 (Cth) s 131
Family Law Act 1975 (Cth) s 83
Cases cited: Aldridge & Keaton [2009] FamCAFC 106
In the Marriage of Caska (2002) FLC 93-092
Trahn & Long (No. 2) [2008] FamCAFC 194
Zhai & Niu [2015] FamCA 639
Division: Division 1 First Instance Place: Sydney Number of paragraphs: 44 Date of last submission/s: 20 August 2021 Date of hearing: 20 August 2021 Counsel for the Applicant: Ms Lioumis Solicitor for the Applicant: Ramsden Lawyers Counsel for the Respondent: Mr O’Reilly Solicitor for the Respondent: The Norton Law Group ORDERS
BRC 6154 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MACARTHUR
Applicant
AND: MS MACARTHUR
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Order 7 of the orders made on 26 May 2021 be varied to read:
(a)The husband forthwith pay to the wife by way of spousal maintenance the sum of $1,435 per week.
2.Any order for spousal maintenance be suspended under the following circumstances:
(a)When the husband is in receipt of no income at all; and
(b)is limited to that period only; and
(c)the husband has forthwith notified the wife of the period when he ceases to, and resumes, receiving an income.
3.F Company holding the rental income in the F Trust Account is hereby authorised to release to Ramsden Lawyers sufficient funds to pay the below invoice that remains outstanding:
(a)G Company invoice dated 21 June 2021 in the sum of $470.00.
4.The orders of 26 May 2021 be varied to include the following provision at Order 9:
(a)In the event either party refuses or neglects to sign any document necessary to give effect to any of these orders then a Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 to sign such document in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the documents; and an order shall be made for the defaulting party to pay the other party's costs of and arising from his or her default with any of these orders.
5.The husband’s Application in a Case filed 23 July 2021 be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Macarthur & Macarthur has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J
INTRODUCTION
These reasons for judgment explain the orders the Court has made in the context of the Application in a Case seeking a stay of orders filed on behalf of the husband on 23 July 2021 in this case.
BACKGROUND
On 26 May 2021 I delivered judgment in the form of oral reasons and made certain orders, the relevant ones of which are, for present purposes, orders 5(d) and 7.
5.Upon completion of the sale of the Suburb C property pursuant to the above orders 3 and 4, both parties do all acts and things including signing all documents as may be necessary to cause the proceeds of sale to be disbursed in the following manner and priority:
…
d. Payment of $80,000 to the wife;
…
7.The husband forthwith pay to the wife by way of spousal maintenance the sum of $1,348 per week, with such amount to increase to $2,037 per week upon settlement of the Suburb C property.
On 21 June 2021 the husband filed a Notice of Appeal. As the order I made was an interlocutory order, leave to appeal needs to be sought. The appeal is listed for a procedural hearing on 23 December 2021.
By way of his Application in a Case filed 23 July 2021 the husband seeks the following orders:
1.That Orders 5(d) and 7 of the Family Court Orders made by His Honour Justice Altobelli on 26 May 2021 be stayed pending the determination of the Notice of Appeal filed on 21 June 2021 and that the following Orders be made: -
2.That until further Order, the Husband pay to the Wife by way of spousal maintenance the sum of $200 per week .
3.That any Order for spousal maintenance by suspended under the following circumstances:
a. When the Husband is unemployed; or
b.When the Husband's work is suspended due to COVID-19 and he is required to self-isolate during the period and he is not in receipt of an income.
4.By that this Order, That F Company holding the rental income in the F Trust Account is hereby authorised to release to Ramsden Lawyers sufficient funds to pay the below invoice that remains outstanding:
a. G Company invoice dated 21 June 2021 in the sum of $470 .00;
5.That the Order of 26 May 2021 be varied to include the following provision at
Order 9:
9.In the event either party refuses or neglects to sign any document necessary to give effect to any of these Orders then a Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 to sign such document in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the documents; and an Order shall be made for the defaulting party to pay the other party's costs of and arising from his or her default with any of these Orders.
6. Any further Order that the Court may deem meet.
AND IN THE ALTERNATIVE TO A STAY OF ORDER 7
7.That Order 7 of the Family Court Orders made by His Honour Justice Altobelli on 26 May 2021 be varied such that the Husband pay to the Wife by way of spousal maintenance the sum of $200 per week during the time that he is employed.
8.That any Order for spousal maintenance by suspended under the following circumstances:
5.a. When the Husband is unemployed; or
6. b.When the Husband's work is suspended due to COVID-19 and he is required to self-isolate during the period and he is not in receipt of an income.
(As per the original)
Despite the husband’s application being framed as a stay application on certain conditions, both the application itself, and the way in which it was presented, creates the strong impression that it is in fact, or at least in part, an application to vary the spousal maintenance order that is sought to be appealed. The distinction is an important one, as the applicable law is different. An application to vary had, in fact, been foreshadowed as a possibility in my reasons for judgment.
In effect, the orders I made required the husband to provide to the wife $80,000 from the net sale proceeds of their property at Suburb C in Queensland, and pay to the wife spousal maintenance in the sum of $1,348 per week, increasing to $2,037 per week on settlement of the Suburb C property. The husband sought that those orders be stayed pending the appeal. As a condition of the stay he agreed to an order that he pay spousal maintenance to the wife of $200 per week.
After hearing submissions from counsel, the parties invited the Court to make a number of orders by consent including that within seven days they exchange formal offers of settlement, orders for mutual disclosure, and an order for a conciliation conference to take place on 15 November 2021 at 2pm.
I was informed by counsel that the Suburb C property had in fact been sold, with the sale to settle on 1 September 2021. The property was sold for $838,500, and the current estimated amount of the mortgage is $592,675.
I was also informed that settlement negotiations between the parties was ongoing, both directly between the parties, and through their legal representatives. There was measured optimism about settlement.
EVIDENCE
In support of his case, the husband sought to rely on the following documents:
(a)His Application in a Case filed 23 July 2021;
(b)His Notice of Appeal filed 21 June 2021;
(c)His Affidavit filed 23 July 2021;
(d)An Affidavit of Ms D filed 23 July 2021;
(e)His Affidavit filed 18 August 202; and
(f)A Case Outline document filed 18 August 2021.
In support of her case, the wife sought to rely on the following documents:
(g)Her Response to an Application in a Case filed 16 August 2021;
(h)Her Affidavit filed 16 August 2021;
(i)My Judgment and Reasons for Judgment dated 26 May 2021; and
(j)A Case Outline document filed 19 August 2021.
APPLICABLE LAW
Counsel for the wife submitted that the applicable law relating to the stay application is conveniently summarised in a decision of his Honour Justice Austin in Zhai & Niu [2015] FamCA 639 at [6] - [8]:
Legal principles
[6] The discretion to stay the operation of orders should only be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his or her litigation pending the determination of any appeal. Such special circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (see Federal Commissioner of Taxation v Myer Emporium (No 1)(1986) 160 CLR 220 at 222-223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No 1)(1986) 161 CLR 681 at 685). Those common law principles apply equally to judgments delivered in this jurisdiction.
[7] The Court is entitled to assume that the decision which is the subject of the appeal is correct. Indeed, the Full Court must subsequently approach the appeal on the basis of a strong presumption that the decision at first instance is correct (see Australian Coal & Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 at 627).
[8] Of course, the orders under appeal in these proceedings are interim in nature. In such circumstances, the husband must obtain leave in order to prosecute the appeal (see s 94AA of the Act; reg 15A of the Family Law Regulations 1984(Cth)). A party seeking leave to appeal against an interim order must demonstrate that there has been an error of principle and/or a substantial injustice in order to secure a grant of leave (see Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc(1981) 148 CLR 170 at 177;Marriage of Rutherford(1991) FLC 92-255 at 78,715).
Counsel for the husband referred to the Full Court decisions in Trahn & Long (No. 2) [2008] FamCAFC 194 at [38] and Aldridge & Keaton [2009] FamCAFC 106 at [71]. Counsel summarised the relevant principles in her Case Outline document at paragraph 3 as follows:
3. The cases emphasise that such applications are discretionary in nature; however, they also point to a number of principles to be applied and matters to be taken into account when determining a particular application. These include:
•the mere filing of an appeal is an insufficient basis for granting a stay;
•the applicant has the onus of establishing a proper basis for the stay;
•it is not necessary to show “special” or “exceptional” circumstances;
•a litigant is prima facie entitled to the benefit of their judgment;
•the applicant’s bona fides;
•whether there has been delay in applying for the stay;
•the time that will elapse before the appeal can be heard;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case; and
•a stay may be granted on terms – this may involve weighing the balance of convenience and the competing rights of the parties.
I accept and adopt both summaries of law as identified by the wife and the husband respectively.
I am satisfied that the husband’s application did, in fact, involve an application to vary the order for spousal maintenance. Relevantly, s 83 of the Family Law Act 1975 (Cth) (‘the Act’) provides:
83 Modification of spousal maintenance orders
(1)If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a)made by the court; or
(b)made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c)discharge the order if there is any just cause for so doing;
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e)revive wholly or in part an order suspended under paragraph (d); or
(f)subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(1A) The court’s jurisdiction under subsection (1) may be exercised:
(a)in any case—in proceedings with respect to the maintenance of a party to the marriage; or
(b)if there is a bankrupt party to the marriage—on the application of the bankruptcy trustee; or
(c)if a party to the marriage is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement.
(2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a) that, since the order was made or last varied:
(i)the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii)the circumstances of the person liable to make payments under the order have so changed; or
(iii)in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;
as to justify its so doing;
(b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba)in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;
(c)that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
(3)Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first‑mentioned order is made for the purpose of giving effect to this Part.
(4)In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5)The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
(5A)In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:
(a) the other party; or
(b) any other person for the benefit of the other party.
(6)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
(6A)Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date, being moneys that would not have been required to be paid under the second‑mentioned order as varied by the first‑mentioned order, may be recovered in a court having jurisdiction under this Act.
(6B)Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.
(7)For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.
(8)The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.
The mandatory language of subsection (2) indicates that in the absence of binding authority to the contrary, the Court cannot vary the order unless it is satisfied of changed circumstances which justify the variation: See, eg, In the Marriage of Caska (2002) FLC 93-092.
DISCUSSION
Insofar as the husband sought any stay of the order that permitted the wife to receive $80,000 from the net sale proceeds of the Suburb C property, the Court declines to make such an order. It is clear from the evidence of the communication between the parties that, even after I made the order, the husband and the wife agreed that the wife should receive at least $80,000 from the net sale proceeds, if not more. The Court received this evidence after having disallowed the objection in relation to the Court receiving evidence of settlement discussions contrary to the provisions of s 131 of the Evidence Act 1995 (Cth). The Court was satisfied that the provisions of s 131(2)(g) applied to this case. To have not received this evidence would have been misleading to the Court.
For the same reason, the Court does not accept the submission made on behalf of the husband that the order in question is irreversible at a final hearing because of the constitution of the asset pool. Clearly the husband did not believe this to be the case. In any event the husband’s submissions ignore the assets which he contends the wife holds in the United States, and which are referred to at [10] of his Case Outline filed 18 August 2021.
In this respect, therefore, the Court considered that both the appeal against the order in question, and the stay application, lacked bona fides. The Court declines to exercise its discretion in favour of the husband.
The application to stay the order for spousal maintenance or, in effect, to vary the same either independently or as a condition of the stay, is much more complex. At paragraph [26] of my reasons for judgment dated 26 May 2021 the Court lamented:
26. It must be remembered that at all relevant times the duty of disclosure was on the husband to properly disclose to the Court his income and expenses so that the question of his capacity to pay could be realistically assessed by reference to evidence before the Court. The duty is not rendered less arduous by the complexity of financial circumstances that he might have, such as the work arrangements that he has. The Court would have been assisted by much clearer evidence, but it was the husband's responsibility to provide this, and perhaps he could have been more helpful in this regard. In all the circumstances, all the Court can do is to adopt a robust approach and thus disallow his claimed expenses pertaining to car hire, gym membership, cleaning, petrol and electricity. This thus increases the husband's capacity by a further $304 per week.
Ironically, and with great respect to the husband and those representing him, little has changed. Even after hearing the detailed submissions made on his behalf, and closely scrutinising the evidence on which the husband relies, the Court is still not comfortably satisfied that it understands his income and expenditure, or that it has been adequately and transparently disclosed. Moreover, the manner in which he deposed to changes in his income and expenditure since the first hearing made it harder, not easier, for the Court to understand his evidence. The husband should have filed a fresh statement of his financial circumstances, and not attempted a complex, cumbersome and translucent exercise of seeking to update evidence that was already unhelpful to the Court.
Of further concern to the Court is the inconsistency in important aspects of the husband’s evidence.
For example, in his Affidavit of 18 August 2021, at paragraph 11 he deposes that he did not work between 24 June 2021 and 21 July 2021. He says that he was on unpaid leave at that time. In his Affidavit of 23 July 2021, at paragraph 13, he deposes to the absence of any guarantee of ongoing employment following the end of his casual contract. This, indeed, is a theme of the husband’s evidence. Implicit, if not explicit in his case is the suggestion of unstable employment and thus consequential fluctuating income.
However, in his text message to the wife on 21 July 2021, as reproduced at annexure M4 to the wife’s Affidavit filed 16 August 2021, he states: “I have been home 6 weeks over the last 6 months.” The Court acknowledges that the precise meaning of this is unclear. Nonetheless, a reasonable inference is that when the husband says he has been at home it means he is not working, but, as his own evidence indicates, that does not mean he is not being paid. The statement that he has been at home for six weeks could, for example, include the four weeks referred to at paragraph 23 above, but that would then mean that he was only at home for two weeks in the first half of 2021. It is understandable that the wife would, in effect, submit that the husband’s text message to her is quite inconsistent with the tenor of the case presented before the Court. Indeed it does little to provide reassurance about the disclosure he has provided about his income.
Of further concern is the husband’s evidence at paragraph 54 of his Affidavit of 23 July 2021 where he deposes: “Historically, I would work five weeks at a time on site and for every day worked I would accrue one day paid leave, meaning that I work on a 5-week on/5-week off roster.” The only way to reconcile this evidence with his text message to the wife is if the husband is otherwise employed during his weeks off, because he is certainly not home, based on what he told the wife.
It leaves the Court, once again, in the lamentable position where it must make a decision based on evidence that lacks clarity. The duty to present clear evidence was at all times that of the husband’s.
To take this even further, for example, nowhere in paragraph 15 of the husband’s Affidavit of 23 July 2021 does the husband disclose his gross income and the amount of tax paid by him. He simply declares that his net weekly income including 20 per cent for casual loading is $2,810.15.
If the husband’s calculations set out at paragraph 15 of his Affidavit filed 23 July 2021 are closely scrutinised, rather than coming to the conclusion that he reaches of the weekly shortfall of $237.26, the Court finds a weekly surplus of $1,435.74. As the Suburb C property has now been sold, there is no longer weekly mortgage of $633, or home insurance and rates of $141, or expenses associated with the Suburb C property of $112. Moreover, no further evidence produced by the husband leads the Court to reconsider its decision to disallow expenses including board, car hire, petrol, credit cards, gym membership and electricity. An observation will be made below about the husband’s board. The car hire arrangement with the husband’s mother at $110 per week is not an arm’s length arrangement and, like much of the husband’s financial evidence, lacks transparency. Gym membership is not a priority over the obligation to pay maintenance. Credit card payments pertain to weekly expenses. Electricity expenditure of $71 per week is unexplained given that the husband says that he boards with his mother but the figure is oddly the same as the electricity claimed in relation to the Suburb C property. This means a further disallowance of $787 per week. Based on a scrutiny of the husband’s calculations, therefore, he should have a weekly surplus of $1,435.74.
At paragraph 17 of the same affidavit he refers to payslips which indicate a gross salary of $7,874.65 per fortnight, or $3,937 per week, compared to the $3,523 per week referred to in his Financial Statement filed 13 May 2021. In effect, the husband is complaining that the Court incorrectly calculated the 20 per cent loading on his income that he himself failed to disclose.
There was much emphasis on the question of how much child support the husband was actually paying, on the basis that this affected his capacity to pay spousal maintenance. The Court found in its original decision dated 26 May 2021 that the husband was paying $8 a week by way of child support, and that an assessment for an increased amount had been issued but had not yet commenced. The Court is now satisfied that the husband is, in fact, paying child support of $444.17 weekly. At annexure M2-04 of the husband’s Affidavit filed 18 August 2021, he annexes a Child Support Assessment document evidencing the same. This is a changed circumstance. The question is the extent to which this adversely affects his capacity to pay spousal maintenance. The assessment made above of a weekly surplus of $1,435.74 has already made allowance for child support in the sum of $458.69.
To the extent that the husband asserts that the Court has incorrectly assessed his income, for the reasons expressed in the paragraph above, none of the Court’s concerns expressed in its original judgment about the true extent of the husband’s income have been addressed. In effect, the husband is now saying, in the context of what is either a stay application, or an application to vary the spousal maintenance order, that he has now made proper disclosure, and even though he did not the first time around, the Court ought to trust him this time. The Court is not so inclined.
The focus turns to the expenses claimed by the husband.
At paragraph 15 of his Affidavit of 23 July 2021 the husband deposes to mortgage payments on the Suburb C property of $633 per week. But then at paragraph 37 of his Affidavit of 18 August 2021 he deposes that since 30 July 2021 he has been unable to pay the mortgage, has reapplied for financial hardship with the bank, and agreement has been reached that payment can be made on settlement of the sale of the property. In those circumstances the Court cannot allow this claimed expense by the husband. With respect, this hardly reassures the Court about the reliability of the evidence that the husband gives about his financial circumstances. In assessing his weekly surplus to be $1,435.74 per week, the Court has already taken account of the non-payment of the mortgage.
From paragraph 54 of the husband’s Affidavit of 23 July 2021 he provides evidence under the heading of ‘Expenses that were disallowed’ by me in my reasons for judgment and orders dated 26 May 2021. At paragraph 56, the husband corrects his evidence in the affidavit that he relied on at the interim hearing that led to the orders now under appeal. He concedes that he deposed that the amount of board that he paid to his mother was $200 each week, even when he was on site. He then deposes that on average, and as reflected in his bank statements, he has been paying a total of $400 in board each week. The fact of these payments cannot be disputed from the bank statements referred to in this paragraph of his Affidavit. The reasonableness of these payments is very much in dispute, as is the inherent reliability of the husband’s evidence in this regard. In the context of a case where the Court has such deep concerns about the reliability of the husband’s evidence about his finances, to now discover that he understated a non-arm’s-length expense by 100 per cent challenges any reasonable notion of plausibility.
The husband is critical of the Court’s disallowance of his $28 per week gym fees. It is not a reasonable expense in the context of this case.
The submission that the orders operate unfairly via ‘double-dipping’ needs to be carefully considered. The wife’s case was that the $80,000 was needed to retire her credit card debt. However, on payment, this would eliminate her $800 weekly payment towards that same credit card debt, thus reducing her weekly needs by this amount. The husband correctly points out that in her own evidence the wife only deposes to $69,000 worth of credit card debts. However, this is in the context of total personal (and presumably unsecured) debts claimed of $362,100, as set out in part K of her Financial Statement filed 13 May 2021. Her claimed weekly expense in repaying these loans is $1,083 per week. In these circumstances the Court remains comfortable with its initial order, but accepts that now that the wife has received the $80,000, her weekly expenses will be reduced by $800 per week.
The Court found the wife’s total weekly personal expenditure to be $3,237. This included all of the child’s expenses which were appropriate given that a minimal amount of child support was being paid. The wife’s needs must now be recalculated to take into account two significant developments: the payment of child support, and the reduction of her expenses by $800 per week. Accordingly, item 32, being the total of all other expenditure referred to at part N of her financial statement needs to be reduced to $765, which are the expenses attributable to her alone. In addition, item 30, the credit card payments, need to be reduced to zero. This means that the Court finds that the wife’s total personal reasonable expenditure is $2,004 each week. In her financial statement the wife acknowledged that she was receiving $200 per week by way of maintenance, which thus reduces her weekly needs to $1804 each week. Of course, if the husband is not continuing to pay the $200 per week, whether as a standalone payment or as part of the amount that the Court ordered, the wife’s needs would revert to $2,004 per week. In her application, the wife sought weekly maintenance in the sum of $2,037.
The Court has assessed the husband's weekly surplus to be $1,435.74 per week. Whilst the court is sceptical about aspects of the husband’s financial evidence, this is an interim hearing and it is best to proceed conservatively both in assessing the wife’s needs, and the husband’s capacity to pay. Accordingly, he will be given the benefit of the doubt on the basis that if at a final hearing the Court’s scepticism is confirmed by way of cross-examination, the wife would be able to apply for a retrospective order in relation to spousal maintenance. Thus, the Court finds that the husband has a capacity to pay $1,435.74 each week by way of spouse maintenance.
As from the date of settlement of the sale of the Suburb C property, and noting that this will already have occurred by the date these reasons are published, the amount of maintenance payable to the wife should be reduced to $1,435 per week, and the orders varied to this extent based on the changed circumstances brought about via the payment of child support and the availability to the wife of a lump sum to pay off her credit card debt.
CONCLUSION
Insofar as the husband’s case is conceptualised as an application to vary the order for spousal maintenance based on changed circumstances, for the reasons set out in the immediately preceding paragraphs, the Court is prepared to vary the amount of maintenance payable to the wife to $$1,435 per week, effective from the date of settlement of the Suburb C property.
The Court otherwise declines to grant the stay sought by the husband. He has failed to reasonably satisfy the Court that there is any proper basis for the stay. In particular, the husband has done nothing to address concerns raised in the reasons supporting the order under appeal about his financial circumstances. The impression created is that his financial circumstances are more translucent than transparent. A distorted, unclear picture is presented. The Court has expressed concerns about his bona fides in circumstances where the evidence of his communications with the wife present a very different picture to that otherwise presented in his sworn evidence. The Court is not satisfied on the evidence that the appeal would be rendered nugatory if the stay is not granted. Indeed, apart from the issue that has led the Court to vary the spousal maintenance orders, this Court accepts the submissions made on behalf of the wife about the strength of the husband’s proposed appeal. The husband through the presentation of his evidence has done very little to assist his own case.
Nonetheless, orders 4 and 5 sought by the husband in his application in a case seem relatively uncontentious and will be made.
Order 3 proposed by the husband is problematic. This Court has expressed its concerns in relation to the lack of transparency, and inconsistency about the husband’s income and expenses. The order proposed invites disputation about its meaning, but if the orders fail to address the nature of the husband’s employment this also invites further litigation. An order which has regard to changes in the husband’s income is problematic as it invites endless argument about reasonable needs and expenses. The only practical solution is to suspend the order for any period that the husband is in receipt of no income at all. On his own evidence as it is understood by this Court, this is relatively infrequent. The orders will therefore be that any order for spousal maintenance be suspended under the following circumstances:
(a)when the husband is in receipt of no income at all; and
(b)is limited to that period only; and
(c)the husband has forthwith notified the wife of the period when he ceases to, and resumes, receiving an income.
All of these orders are pending further order.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli . Associate:
Dated: 3 September 2021