Macarthur & Macarthur (No 2)
[2023] FedCFamC1F 74
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Macarthur & Macarthur (No 2) [2023] FedCFamC1F 74
File number(s): BRC 6154 of 2020 Judgment of: CHRISTIE J Date of judgment: 17 February 2023 Catchwords: FAMILY LAW – SPOUSE MAINTENANCE – Where interim spouse maintenance orders were made – Where those orders provided that the husband only pay spouse maintenance when he was in receipt of income– Where both parties now seek to vary those orders – Where the wife failed to put forward relevant evidence of her financial circumstances. Legislation: Family Law Act 1975 (Cth) ss 72, 74, 83
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.08, 6.06
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 17 February 2023 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
BRC 6154 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MACARTHUR
Applicant
AND: MR MACARTHUR
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
17 February 2023
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Order 1 of the Orders of 3 September 2021 be varied to read:
(a)the husband pay to the wife by way of spouse maintenance the sum of $400 per week if he is employed on site; and
(b)the husband pay to the wife by way of spouse maintenance the sum of $200 per week if he is employed otherwise.
2.The wife’s Application in a Proceeding and the husband’s Response are 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 pseudonym Macarthur & Macarthur has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
These are proceedings of an interim nature. They relate to spouse maintenance.
Mr and Mrs Macarthur are currently awaiting a final hearing of their competing applications for property adjustment.
The final hearing is listed on 31 October 2023 for three days.
On 3 September 2021 his Honour Justice Altobelli made interim orders following a contested hearing. Order 1 of those orders required the husband to pay spouse maintenance to the wife.
By application filed 7 February 2023, the wife seeks to vary Order 2 of the orders made on 3 September 2021. The wife sought that that application be determined with some urgency and I was able to list it today, 17 February 2023 and directed the husband to file a Response by 15 February 2023.
Order 2 of the 3 September 2021 orders provides:
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.
(As per the original)
The husband and wife are each appearing in these proceedings without a lawyer.
It would appear as if the variation which the wife seeks is to discharge Order 2 which relates to the suspension of Order 1 during periods of unemployment.
In the husband’s Response he seeks that the wife’s Application be dismissed but he also seeks orders to vary the existing maintenance order.
BACKGROUND
The husband lives in Australia. The wife and the parties’ child live overseas.
The parties’ daughter is turning six years old and attends kindergarten.
The Court heard and determined contested proceedings for spouse maintenance on 26 May 2021.
The husband filed an application for a stay of those orders on 23 July 2021 (in the context of an appeal) which stay application was heard and determined by his Honour Justice Altobelli on 3 September 2021. Although, as his Honour observed in his reasons for judgment, the husband’s application, although framed as a stay, read as though it were in reality an application to vary the interim orders.
The husband’s appeal was discontinued on 6 October 2021.
As his Honour dealt with the husband’s application as a variation and not a stay, the orders of 3 September 2021 survived the discontinuance of the appeal.
EVIDENCE
The wife relied on an affidavit filed 6 February 2023. At the hearing she indicated she had filed an Amended Application in a Proceeding and affidavit on 16 February 2023. The husband indicated he had seen the amended application but not yet read the new affidavit, which appears to have been filed the morning of the hearing.
The husband said he was prejudiced by the amendment. I accept that the amended application sought payment of a lump sum and changed the nature of the case the husband had to meet. The wife indicated she would not seek an adjournment but sought to continue today.
As the husband had not yet had the opportunity to read the wife’s affidavit filed yesterday and in light of r 5.08(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), which only permits one affidavit per witness, and r 5.07, which requires filing two business days before the hearing, I did not permit her to rely on the further affidavit. She elected not to seek an adjournment.
The wife did not file a financial statement.
The husband relied on a Response to Application in a Proceeding and an affidavit and financial statement filed in accordance with the Court’s directions.
Both parties made oral submissions.
THE LAW
A party seeking to vary an existing order for spouse maintenance must satisfy the provisions of s 83 of the Family Law Act1975 (Cth) (“the Act”). Section 83 provides:
(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.
A party seeking orders relating to spouse maintenance (or responding to orders concerning spouse maintenance) must file a financial statement: r 6.06(5)(a) of the Rules.
CONSIDERATION
I am satisfied that there have been a number of changes in circumstances since the spouse maintenance order was made. Those include:
(1)The parties’ daughter has commenced formal education. She is now in Kindergarten;
(2)The husband has experienced a few periods of unemployment – some related to health and others to availability of work.
Those changes warrant the Court examining the existing order to determine whether variation, increase, decrease, discharge or suspension are appropriate.
I gather from the wife’s evidence that collection of spouse maintenance by the child support agency is hampered by orders which provide for the suspension of payments during periods of unemployment. The agency is (understandably) not able to make determinations as to a person’s employment status on a week by week or contract by contract basis.
The wife says that the order which provides for suspension during periods of unemployment should be discharged because the ambiguity means she cannot rely on the agency to collect payments on her behalf.
She also submitted that enforcement of the order through the Court would be onerous so she sought to remove the ambiguity in the order.
The difficulty with this argument is that the wife has not established that the husband’s pattern of work has changed such that it would be appropriate that his obligation continue even when he is out of work.
The husband says the quantum of spouse maintenance should change but his capacity to pay at a differential rate depending upon his source of work and the power to suspend if he is unemployed should be features of the order.
At the time of the order for spouse maintenance the husband was employed as a tradesperson either away on site or in similar role locally. At the time of this hearing the husband is unemployed.
The husband filed a financial statement. That financial statement deals with his unemployment. It does not deal with what income he might earn if he were employed.
The husband had a contract which finished in late 2022. He told the wife that he expected to return to work soon after but the site he had been working was no longer available and he was given a separation certificate. He gives evidence that when that has occurred in the past he was usually able to pick up contractual work on another site but this has not been the case. He provided the wife with an email from H Company dated late 2022 which read:
Hi [Mr Macarthur],
We regret to inform you that we have no further work available for you at this point. Unfortunately, several [sites will become unavailable] in December/January.
We thank you for your dedication and support over the past year. If we have another suitable position that comes up, we will have no hesitation in contacting you for the role. We hope that work will pick up again from the second quarter of 2023.
…
He has experienced a series of health challenges during the period following separation from his employer. He provides the Court and the wife with documentation from the hospital and from his treaters.
The wife challenged the husband’s evidence about his health. These are interim proceedings and the husband has endeavoured to provide the wife and the Court with independent evidence which satisfies me that it should be accepted as a business record, about various of the challenges he has experienced. I accept that the evidence establishes that he has been unwell and the combination of the availability of work in his field and his health have prevented him from working.
I take into account the fact that the husband has, to that point, worked and has kept the wife informed about the work he has been able to secure. The husband’s financial circumstances have however changed.
I am not assisted by any evidence in the wife’s case which addresses the issue of her own efforts to obtain employment. This is significant because on 15 November 2021 the Court made orders as follows:
4.Not later than 4.00pm on 15 January 2022, the Applicant must serve on the Respondent financial disclosure in relation to the following:
…
(b) The documents requested by the Respondent in Annexure “A”.
At [e] of Annexure A to the 15 November 2021 orders the wife was required to provide by way of disclosure “[r]ecords of the Applicant’s attempts to obtain employment including applications and proposed employment contracts”.
The husband says he has not received any documents. The wife does not include any information about this in her own affidavit material.
The wife has not filed a financial statement in support of her Application. The only information I have about her current financial circumstances on oath is her statement that she has a credit card debt of about $65,000AUD. It is not clear whether this credit card debt has been accumulated since her receipt of $80,000 by way of partial property settlement which was designed to retire debt. From the bar table I was told that she paid this debt but I was not provided with evidence.
It is also not clear over what period the wife’s credit card debt has accumulated. The husband attaches a schedule of payments made to the wife in the period 6 March 2020 to 31 January 2023. They total $266,535.25 including $80,000 as a lump sum.
The husband has paid child support as assessed and is not in arrears. His periodic child support changes with the changes to his income, contract to contract. Both child support and spouse maintenance have been paid through the agency. Together in the calendar year 2022 the husband paid $88,735.65 in total or an average of $1,706.45 per week. Contrary to the submissions of the wife, this application is not dealing with a person who has failed to meet his responsibilities. The husband has notified the wife when he has not been in employment and only in those circumstances has the payment been suspended.
The husband has taken his duty of financial disclosure seriously. He has emailed the wife at her email address on her Notice of Address for Service and provided information and links to a Dropbox where his disclosure is contained. The wife said, from the bar table, she had not received the link. This is inconsistent both with the tracking notifications which the husband attaches to his affidavit and with the fact that the wife has knowledge of the content of the emails the husband has sent as demonstrated by her inclusion of such detail in her own affidavit material.
The husband says that the wife has failed to make full and frank financial disclosure as the Rules require and the documents he has received have been limited to a select number of credit card statements. The wife does not significantly dispute this. She says, and I am paraphrasing, that she is overwhelmed. That may be the case but disclosure is mandatory. It provides the Court and her former husband with necessary information to make informed decisions. Without financial information from the wife, the Court is not obliged to rely on her broad statements about her financial position. The Court operates on the basis of admissible evidence.
There are specific documents which should be served in respect of maintenance applications and these are set out in r 6.06(9) of the Rules as follows:
(9)Without limiting subrule (1), a respondent to an application for maintenance only must bring to the court on the first court date the following documents:
(a)a copy of the respondent’s taxation return for the most recent financial year;
(b)a copy of the respondent’s taxation assessment for the most recent financial year;
(c)copies of the respondent’s bank records for the 12 months immediately before the date when the application was filed;
(d)the respondent’s most recent pay slip;
(e)if the respondent has an Australian Business Number—a copy of the last 4 business activity statements lodged;
(f)any document in the respondent’s possession, custody or control that may assist the court in determining the income, needs and financial resources of the respondent.
The wife’s failure to provide the Court and the husband with financial information that she is obliged to provide mean that she is in a position where she is unable to demonstrate by admissible evidence that she continues to satisfy the requirements of an applicant for maintenance.
The wife says in her affidavit:
6.… I have developed complex post-traumatic stress disorder, anxiety, depression, [and numerous physical medical conditions].
The wife has given me no medical evidence about any of these medical issues.
The wife has given me no details about her efforts to find paid employment. I accept that she is the parent of a child under the age of 18. This, without further information, does not demonstrate that the wife is unable to support herself. The husband points to her extensive qualifications and experience.
The wife received the benefit of an order for spouse maintenance on 26 May 2021. The husband has paid in accordance with that order. I accept the order has allowed him to suspend payments from time to time. He has done so at present because he is unemployed.
A spouse is obliged to support their former spouse where the former spouse is unable to support themselves for any proper reason: s 72 of the Act. Here the wife does not put forward evidence to support that reason.
Further, the person who is being asked to pay spouse maintenance will only be ordered to pay spouse maintenance if they have the capacity to pay.
The husband has no present capacity to pay and, had he asked to discharge the spouse maintenance orders in their entirety, I may have been inclined to accede to the application, but that is academic since the husband did not ask me to discharge the spouse maintenance orders in their entirety.
Because the wife has given me no information about her current income and expenses it is difficult to ascertain what amount is required for her reasonable support.
The manner in which the wife has run her case has not assisted her. Rather than proving those matters which need to be proved, she has asserted her need for funds. This is particularly significant since each party has sought to vary the existing orders and, in approaching those competing applications, I must be careful to ensure that any order I make is proper: s 74(1) of the Act.
The husband’s income when he was last before Justice Altobelli was about $3,937 gross per week. This was work on site with a casual loading. The husband says work on site is not readily available and the email from his former employer confirms that sites have become unavailable. The husband indicates an intention to seek both on site and local work – which will be paid at different rates. I do not know what those rates are.
Unfortunately, the ease with which I can make findings in this case has been significantly hampered by the fact that the parties are acting for themselves. This is not a criticism. Conducting legal proceedings is a professional skill. I accept that the finances of the parties have precluded them engaging lawyers so it is necessary that I do the best I can with the evidence they have provided but it remains their obligation to provide the evidence.
I am satisfied that the husband has endeavoured to provide the wife with all the disclosure documents he is obliged to provide including tax records and payslips.
Justice Altobelli found that the husband had a surplus of income over expenses when employed in the role he was undertaking at the date of that hearing. He is no longer in that role. He is not employed but his response is premised on a return to work. He says his earnings are likely to be less but that is just conjecture at this stage.
If the husband is working he will pay child support as assessed. He will have tax and expenses for self support. He filed a Part N to his financial statement with expenses of $442 per week. He indicated he pays board of $400 a week when employed. I do know that the husband cannot afford to travel to see his child. I do know the husband will soon have to requalify for his ticket to allow him to work at a cost of over $2,000. He also requires surgery – which will cost $5,200. These are all significant expenses which should figure in to his capacity to pay spouse maintenance when he returns to work. They will decrease any surplus that he has available to him to meet any needs of the wife.
In the absence of any reliable evidence from the wife about her financial position I am required to do the best I can with the available evidence. Clearly the husband has no capacity to pay at present. I therefore cannot accede to the wife’s request to discharge the order which allows him to suspend payments during periods of unemployment.
I accept the wife’s submission that the drafting of the order would allow suspension if the husband decided not to work in order to avoid his obligations. I am satisfied that he has not done so and that each time he has been without work he has explained that to my satisfaction.
I will order that Order 1 of the orders of 3 September 2021 be varied to read:
(a)the husband pay to the wife by way of spouse maintenance the sum of $400 per week if he is employed on site; and
(b)the husband pay to the wife by way of spouse maintenance the sum of $200 per week if he is employed otherwise.
Order 2 of the Orders of 3 September 2021 will remain in force.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 17 February 2023
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