Marsh and Marsh
[2010] FMCAfam 1519
•10 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARSH & MARSH | [2010] FMCAfam 1519 |
| FAMILY LAW – Interim – spousal maintenance – interim property division. |
| Family Law Act 1975, ss.44, 72, 74, 75, 80 |
| In the Marriage of Astbury (1978) 34 FLR 173; (1978) FLC 90-494 In the Marriage of Bevan (1993) 19 Fam LR 35 In the Marriage of Mitchell (1995) 19 Fam LR 44; (1995) FLC 92-601 In the Marriage of Wilson (1989) FLC 92-033 In the Marriage of Zschokke (1996) 20 Fam LR 766 Strahan v Strahan (2009) 42 Fam LR 203 |
| Applicant: | MS MARSH |
| Respondent: | MR MARSH |
| File Number: | SYC 8390 of 2007 |
| Judgment of: | Monahan FM |
| Hearing date: | 26 November 2010 |
| Date of Last Submission: | 26 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | John R Quinn & Co |
| Counsel for the Respondent: | Mr Richards |
| Solicitors for the Respondent: | Turner Freeman Lawyers |
ORDERS
By way of further interim property distribution the Respondent Husband cause the sum of $30,000.00 to be paid to the Applicant Wife as she may direct on or before 10 March 2011.
The Applicant Wife’s Application in a Case filed 29 July 2010 (“the Application”) be otherwise dismissed.
The Respondent Husband’s costs of and incidental to the Application be reserved to the Final Hearing.
AND THE COURT NOTES THAT:
(A)The parties were excused from appearing at the judgment hearing today.
(B)The parties have already agreed to an interim property distribution by the Respondent Husband to the Applicant Wife in the amount of $120,000.00.
(C)The substantive proceedings remain fixed for Final Hearing on 25 July 2011 for an estimated time of no longer than two (2) days.
IT IS NOTED that publication of this judgment under the pseudonym Marsh & Marsh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 8390 of 2007
| MS MARSH |
Applicant
And
| MR MARSH |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an Application in a Case filed on 29 July, 2010 by MS MARSH, (“the wife”) against MR MARSH (“the husband”) seeking interim spousal maintenance in the sum of $1,227.00 per week and her costs of the application.
In his Response to the Application in a Case, filed on 26 August 2010, the husband seeks the dismissal of the wife’s Application in a Case together with his costs incidental to the interim proceedings on an indemnity basis.
In the substantive proceedings commenced by the wife in her Initiating Application filed on 15 June, 2010, the wife is seeking various property orders including the transfer of two properties, the payment of $500,000.00 and a superannuation splitting order.
These proceedings are also opposed by the husband, who, in his Response filed on 10 August 2010, seeks different property orders.
The matter first came before me in my duty list on 21 July 2010, and on that occasion, orders were made setting the substantive proceedings down for a Conciliation Conference on 27 October, 2010. In addition, two orders were made by consent:
“3. The Applicant have leave to make her Application out of time under s.44(3) of the Family Law Act 1975.
4. Until further order, the Respondent be restrained from selling, assigning, mortgaging, encumbering or in any other way dealing with his interest in the properties registered in his name and known as:
(a) [address omitted]; and
(b) [address omitted].”
The wife’s Application in a Case was filed just eight (8) days after the first return date and the making of the consent orders. This is noteworthy because no interim spousal maintenance application was sought in the Initiating Application filed the previous month.
The wife’s Application in a Case was listed as returnable on 8 September 2010 in my duty list. On that occasion, I declined to consider the wife’s Application in a Case given the aforementioned circumstances but most particularly, given the proximity of the Conciliation Conference. I did, however, adjourn the Application until 25 November 2010, that is, approximately one month after the Conciliation Conference was to take place.
The Conciliation Conference did proceed before Registrar MacNamara on 27 October 2010, but unfortunately the parties were not able to resolve their dispute.
As stated, the matter returned before me in my duty list on 25 November 2010. On that occasion, I made various orders and directions in relation to the substantive application, including listing the application for final hearing on 25 July 2011. I also agreed to entertain an interim hearing in respect of the wife’s Application in a Case for urgent spousal maintenance after the luncheon adjournment on 25 November 2010.
Issues
The only issue requiring determination in this decision is the wife’s application for interim spousal maintenance pending final hearing of the property application next year.
Background
It would appear that the parties commenced co-habitation upon their marriage [in] 1979. They separated on 1 December 2000, that is, approximately ten (10) years ago. A Divorce Order, it would appear, was made on 25 February 2008. There are three (3) children of the marriage, namely: [X], born [in] 1983, [Y], born [in] 1986, and [Z], born [in] 1990 (“the children”). In other words, the children are all aged over 18 years and range in age from 20 to 27 years. The wife was born [in] 1958 and is presently 52. The husband was born [in] 1958 and is also presently 52. It would appear from the evidence, that the wife has not been in paid employment since shortly before [X]’s birth in 1983, that is, when she was aged just 26.
The wife asserts, in paragraph eight (8) of her affidavit sworn on 28 July 2010 and filed on 29 July 2010 (“her affidavit”), that she has no formal qualifications and held clerical positions until leaving the workforce. She further asserts, in paragraph nine (9) of her affidavit, that upon separation the husband commenced paying approximately, $12,000.00 a month into the parties joint account with such funds being used by the wife to pay off the mortgage over the former matrimonial home and for living expenses for herself and the children.
The wife further asserts, in paragraph 10 of her affidavit, that, following the discharge of the mortgage over the former matrimonial home in June 2007, the husband reduced the monthly payment to $8,500.00.
In paragraph 11 of her affidavit, the wife asserts that she received a text message from the husband on 21 March 2010 which stated:
“All current commitments r now cancelled ie monthly allowance, health insurance etc hence the heads up 4 the kids because no doubt, they will hear about it.”
In his affidavit sworn on 25 August 2010 and filed on 26 August 2010 (“his affidavit”), the husband asserts that he has made additional payments and purchases for the wife since separation. For example, in paragraph 18 of his affidavit, he states:
“18. I moved to Singapore in July 2005 not 2004. I continued to pay for repairs on the house, including major upgrades to the house being landscaping, pool heating. I also paid for a new car (a BMW 320i) for Ms Marsh, as well as her registration and insurance in 2006 and 2007; holidays for the children and her; university and school fees; health insurance for the children and her; these being only some of the expenses I have paid for her.”
In the previous paragraph of his affidavit, paragraph 17, the husband states:
“17. …Further, even though we separated in 2000, I have spent every Christmas day for the past 9 years, from 6 am until 4 pm with Ms Marsh and the children, when I have done all of the cooking and preparation with little help from Ms Marsh. The same has applied each Easter, for graduations, on [Z]’s birthday every year since 2000, and the boy’s [sic] major birthdays, when they turned 16, 18 and 21. I also travelled back to Australia to support [Y] when he had major facial surgery, and when [Z] and [Y] spent full days at horse riding events and cricket. I continued to be there all day and even prepared their food and drinks (which was often quite elaborate). For example, I made morning teas, lunches and afternoon teas for them as well as for Ms Marsh and their coaches, much of which I needed to prepare the night before.
I am concerned that Ms Marsh portrays me as having simply ‘walked out’ and abandoned our family, and literally ‘washed my hands of their emotional support’, which is simply not true. I believe that I have present and/or available for Ms Marsh and all of the children since I left Australia, whenever it counted, regardless where I was in the world at the time, to support them emotionally and not just financially.”
In paragraphs 18 and 19 of her affidavit, the wife states:
“18. In 2004, Mr Marsh obtained employment overseas with the company that had employed him since 1981. That company is known as [omitted] company. When Mr Marsh moved overseas in connection with his employment he continued to pay $12,000.00 per month and I continued to meet all family outgoings and expenses from this sum. From the time that the mortgage on the former matrimonial home was discharged in or about 2007 until 26th February, 2010 Mr Marsh continued to pay me $8500 per calendar month.
19. In or about 2006 Mr Marsh moved from Singapore to the [omitted] office in Hong Kong. He remained with the Hong Kong Branch of his employer until March 2010. In a conversation I had with Mr Marsh in March 2010 Mr Marsh said to me:
‘I have left Hong Kong and I am now going to work in the London office of [company omitted].’
Annexed hereto and marked ‘A’ is a letter from Ernst and Young provided to my lawyers by way of informal discovery setting out Mr Marsh’s income and other financial benefits arising out of his employment with [company omitted] in Hong Kong.”
As previously stated, the Initiating Application by the wife was filed in June 2010 and contained no application for spousal maintenance or interim spousal maintenance. The wife’s request for spousal support flows from her Application in a Case filed in July 2010 following consent orders allowing the initiating application to proceed out of time pursuant to s.44(3) of the Family Law Act 1975 (“the Act”).
There is agreement between the parties that the wife received the sum of $120,000.00 in May this year which can now be described as an interim property distribution. The wife asserts that these monies have now been spent and that she has spousal maintenance needs totalling $1,227.00 per week. Her affidavit sets out her asserted expenditures on a weekly basis that would justify interim spousal maintenance award in the sum of $1,227.00 a week.
Submissions
Both parties’ legal representatives gave submissions to the Court – Mr Quinn on behalf of the wife and Mr Richards of counsel on behalf of the husband.
Wife’s submissions
Mr Quinn commenced his submissions by informing the Court that the wife is now in receipt of Centrelink benefits, more specifically, unemployment benefits. Although, the wife acknowledged receiving the sum of $120,000.00 in May 2010 by way of an agreed interim property distribution, those funds have been fully exhausted as detailed in the wife’s affidavit. Mr Quinn conceded that in respect of the wife’s current expenses outlined in paragraph 28 of her affidavit, there may have been some double counting of “Electricity Expenses” in subparagraphs “E” and “Y”. Moreover, the expenses relating to “Telephone and Internet” in subparagraph “G” and the “vet fees” in subparagraph “T” related to expenses incurred for and on behalf of the parties’ daughter, [Z]. [Z] is a [omitted] University student doing a [omitted] degree but is currently studying at an American university on an exchange program.
Husband’s submissions
The husband’s counsel, Mr Richards commenced his submissions by seeking to tender a copy of the unfiled financial statement sworn by the wife on 25 August 2009, that is, 15 months ago. I allowed the tender of the document over the objections of the wife’s solicitor given its obvious relevance to the issue of the wife’s financial needs. The document became Exhibit “RH1”. Mr Richards also provided the Court with the chronology and a list of documents, as well as a document prepared on behalf of the husband comparing the wife’s recent affidavit with the expenses outlined in Exhibit “RH1” and incorporating submissions as to reasonable expenses. Mr Richards commenced his oral submissions by noting that it is the wife, as the applicant, who bears the onus of proof in satisfying the Court that she is unable to support herself adequately. Mr Richards conceded that there was no issue that the husband had the capacity as a significant wage earner to provide that support but only if the wife satisfied the threshold test.
Despite the parties having separated more than ten years ago, the husband has continued to provide considerable support to the wife and the children to ensure that they were properly maintained until each of the children had completed their schooling and their tertiary studies. The husband asserts that, as early as 2002, he had suggested to the wife to improve her skills base and that over the post-separation period the wife had indeed enrolled in several courses, including training as a [omitted]. Mr Richards asked the Court to accept that the wife was silent in her evidence about any attempts to seek employment. The husband’s decision to end regular and ongoing financial support coincided with end of [Z]’s first full year at university and of course, following the discharge of the mortgage over the former matrimonial home.
Mr Richards was also critical of the wife’s particularisation of her expenses and asked the Court to find that the wife was clearly mixing her own personal expenses and those of her child, [Z], and that there were errors in any event. Mr Richards also asked the Court to find that the expenses claimed were extravagant or not wholly believable.
Wife’s submissions in reply
In his reply, Mr Quinn asked the Court to accept that the wife still had the responsibility of a teenage child living with her and that the wife had been the primary carer of the children not just during the marriage but over the last decade since separation.
Mr Quinn asked the Court to accept that the husband was and remains a wealthy man and that the wife had genuine needs and was in need of support pending the final hearing in mid-2011.
Law
Applications for spousal maintenance are governed by the provisions of Part VIII of the Act. The right of one spouse to be maintained by the other is quite clearly enunciated in s.72(1) of the Act:
“(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).”
It is clear that the right to spousal maintenance is a conditional one. The general right is subject to a party in need being unable to support himself or herself and the other party being reasonably able, financially speaking, to provide such support. The Court in doing so can take into account, a party’s ability or reasonable efforts to obtain employment to counter a claim for spousal support. I note that this is an issue in these proceedings.
In the case of In the Marriage of Astbury (1978) 34 FLR 173; (1978) FLC 90-494, a wife seeking an increase in the support she was receiving was unsuccessful because the trial judge, Justice Maxwell, found (at p.175) that she had:
“…appropriate capacity for gainful employment once she applied her mind to overcoming certain slight difficulties in this regard, and once she has obtained employment should be able to support herself adequately.”
On appeal, the Full Court of the Family Court of Australia (“the Full Court”), comprising Evatt CJ, Asche SJ and Bell J, found that the trial judge had not erred in reaching such a conclusion (see p.179).
That said, it would be fair to say, that the Court needs to consider the obvious difficulties that a party might have in rejoining the work force after many years of raising children and I refer, in particular to In the Marriage of Mitchell (1995) 19 Fam LR 44; (1995) FLC 92-601.
If the threshold test is met, the Court has the power to make a spousal maintenance order as it considers proper under s.74 of the Act subject to considering the relevant matters in s.75 of the Act. The power referred to in s.74, has been the subject of numerous decisions and manifold comments by the Family Court, in particular, cases such as In the Marriage of Wilson (1989) FLC 92-033 (“Wilson”) and In the Marriage of Bevan (1993) 19 Fam LR 35 (“Bevan”).
In Bevan, the Full Court (Nicholson CJ, Lindemeyer and McGovern JJ) provided the following checklist (at page 42 of the cited report) when considering the exercise of the power under s.74:
“[W]e would state the law as being that an award of spousal maintenance requires:
(1) a threshold finding under s 72;
(2) consideration of s 74 and s 75(2);
(3) no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
(4) discretion exercised in accordance with the provisions of s 74, with ‘reasonableness in all the circumstances’ as the guiding principle.”
As indicated, s.75(1) of the Act is relevant in these proceedings and states:
“In exercising jurisdiction under section 74, the Court shall take into account only the matters referred to in subsection (2)."
In other words, s.75(2) provides an exhaustive list of matters which must be considered. Of relevance in this case would be the following subparagraphs:
“(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
…
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
…
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
…
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account…”
In addition, s.75(3) states:
“(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.”
Consequently, in the case before me, the Court must disregard the wife’s Centrelink payments.
With respect to the general powers of the Court in financial proceedings, s.80(1)(b) allows the Court to make an order for payment of weekly, monthly, yearly or some other periodic sum. Section 80(1)(h) allows the Court to, inter alia, make an interim order, that is, an order pending the disposal of the proceedings.
Discussion
Mr Richards is correct when he submits that the wife bears the onus of proving that she is unable to support herself adequately by reason of her circumstances. The husband concedes that he has the capacity to maintain the wife. The question is, of course, whether he should.
The wife has received support from him for the last ten years. She did, after all, have the primary care and responsibility for the parenting of the children. The children have now grown. The youngest, [Z], is on the verge of graduating from her teenage years. [Z] has also completed, it would appear, two years of tertiary study. The wife is currently living in a property that is unencumbered. She drives a BMW motor vehicle that is also apparently unencumbered. She has expenses that range from essential to non-essential. She also admits having incurred expenses on behalf of [Z].
The wife is presently 52 years old; so is the husband. He can be expected to work for a number of years to come. The wife is also too young to progress to the aged pension and, if physically and mentally able, will be expected by Centrelink to make efforts to find employment. The wife is also the beneficiary of an interim property distribution of $120,000.00 paid in May 2010.
Decision
Having considered the submissions in light of the available evidence and the relevant legislation, the Court is satisfied that:
·firstly, as conceded by the husband, the husband does have the capacity to provide financial support to the wife;
·secondly, the wife has the capacity to find paid employment, so it is questionable whether the threshold test has been met, but, if it has been met, then;
·thirdly, the wife has expenses that include non-essential expenses and expenses that have been incurred on behalf of their daughter, [Z].
Consequently, the wife’s claim must fail at this time and is therefore dismissed.
The costs for the husband of these proceedings will be reserved and considered at the final hearing.
Although, there was no application before me, I consider it appropriate for there to be a further interim property distribution favouring the wife, in the sum of $30,000.00 to assist her in preparing for the final hearing. I am satisfied that the principles enunciated by the Full Court in In the Marriage of Zschokke (1996) 20 Fam LR 766, and more recently in the case of Strahan v Strahan (2009) 42 Fam LR 203, would have application in the present circumstances so as to ensure that the wife has sufficient funds to prosecute her case and is not left financially challenged in respect of her personal expenditure.
I will allow the husband three months in order to make the necessary arrangements to cause the sum of $30,000.00 to be forwarded to the wife as she may direct.
There will now be orders of the Court to reflect this decision.
The Court reserves the right to settle the reasons for this decision.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 22 July 2011