Martyns and Martyns

[2007] FamCA 892

FAMILY COURT OF AUSTRALIA

MARTYNS & MARTYNS [2007] FamCA 892

FAMILY LAW – Spouse Maintenance – Urgent

Family Law Act 1975 (Cth) s 72

APPLICANT: MS MARTYNS

RESPONDENT: MR MARTYNS

FILE NUMBER: NCC 1794 of 2007

DATE DELIVERED: 13 August 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: MULLANE J

HEARING DATE: 13 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamilton

SOLICITOR FOR THE APPLICANT: Baker & Borthwick, Solicitors

COUNSEL FOR THE RESPONDENT: Mr Davies

SOLICITOR FOR THE RESPONDENT: Donovan Oates & Hannaford, Solicitors

Orders

1. The wife’s application for extension of time to appeal and her application for interim spouse maintenance are adjourned for a 3 hour hearing on a date to be fixed by the List Clerk.

2. The wife must file and serve any further affidavit material on which she seeks to rely within 14 days and the husband must file and serve any further affidavit material on which he seeks to rely within 21 days.

3. The wife’s application for urgent spouse maintenance is refused and dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Martyns & Martyns .

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1794  of 2007

MS MARTYNS

Applicant

And

MR MARTYNS

Respondent

REASONS FOR JUDGMENT

1. The wife's application is for urgent spouse maintenance.  The provisions of the Act in relation to spouse maintenance are fairly specific insofar as there is a hurdle that has to be overcome, and that is contained in sub-s 72(1), which 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 to so, if and only if that other party is unable to support herself or himself adequately."

   and then it says the reasons, the first of which is:

   "By reason of having the care and control of a child of the marriage who has not attained the age of 18 years."

2. The second is:

   "By reason of age or physical or mental incapacity for appropriate gainful employment."

3. The third is:

   "For any other adequate reason, having regard to any relevant matters referred to in sub-s 75(2)."

4. Even though the provision in s 77 for urgent spouse maintenance is designed to address situations where the Court is not able to be precise about the need or the extent of the needs or resources of the parties, but is convinced that a person is in immediate need of financial assistance, it still is subject to s 72 –the hurdle of having to establish the reason for someone's inability to support himself or herself.

5. The wife offers no evidence of any child of the marriage under 18 that she has the care of, and no evidence of any incapacity for appropriate gainful employment by reason of age or physical or mental incapacity.  Indeed, in that regard she says that in 2005 she earned $50,000 working for one of the family companies and she had worked for that company for some considerable time.  She has not given any evidence that she has sought any other similar employment or any employment at all since she ceased receiving an income from that source.

6. When one looks at para (c), I think that probably what the wife's case is about an overview of her financial circumstances such as the extent of her liabilities,  her property and so forth.  She has no income because she is not in any paid work and she is receiving no present income from other sources. 

7. In terms of assets that might be sold to provide funds to support herself she, I think, retains a motor vehicle, a Holden Monaro, which she says is worth about $33,000 and four horses, which she says are worth about $10,000.  She says that she has spent all the savings that she had.  She says her interest in the investment company of the parties, owning land at E, is worth $175,000.

8. She has liabilities by way of a personal loan from a firm called M of $20,000, and she also says she owes the ANZ Bank $675,000.  That is said to be a joint loan with the husband under which her liability is 50 per cent.  That is not explained by her affidavit.  The only reference I think to any liability she might have to the ANZ Bank is in relation to the purchase by the property investment company of the property in E, which was bought for $320,000 and which she says was the subject of a loan from the ANZ Bank. She testifies that in respect of that loan she and the husband gave personal guarantees.

9. From that it appears that the debt of $675,000, which she refers to there in her financial statement, is not a present debt but a guarantee, and she would only be liable in the event that the company defaults.  There is no evidence to suggest the company is likely to default, in fact quite the contrary.  Her evidence is that the business that the parties has established in E on that property has been very successful and that there have been some improvements to the property done as well since it was acquired.

10. If one disregards the guarantee debt, then her position is not one of insolvency but one which would see her with liabilities of $20,000 and assets of $571,500.

11. I think the question of her inability to support herself must also be gauged relative, of course, to the question of urgency.  It is now nearly 12 months since she ceased to be in receipt of an income from paid work with the family company, and that, one would have thought, would be ample time for her to have sought some other similar employment, but there is no evidence that she has done that.  It seems that any urgency that might have arisen would have occurred quite some time ago, in August of last year.  She has in the meantime sold some assets and borrowed the $20,000 and used those funds for her day to day support.

12. In the circumstances, I am not satisfied that it is an urgent situation. The evidence does not establish her financial situation is such that having regard to the time she has had since August last year to either obtain other employment, realise assets or assert herself in relation to her rights as regards the investment company and income from that, that in the circumstances she is under s 72 unable to adequately support herself.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date:  23 August 2007