McCutchen and McCutchen

[2015] FCWAM 120

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MCCUTCHEN and MCCUTCHEN [2015] FCWAM 120

CORAM: KAESER M

HEARD: 5 MAY 2015

DELIVERED : 19 JUNE 2015

FILE NO/S: PTW 754 of 2014

BETWEEN: MS MCCUTCHEN

Applicant

AND

MR MCCUTCHEN
Respondent

Catchwords:

Interim Spousal Maintenance; clause in previous consent orders such that neither party were to make any claims in the future held to be invalid; where wife clearly in need of financial support; where husband lacks capacity to pay; where parties in roughly equal asset positions, but husband earning more significant income; application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self represented litigant

Respondent: Self represented litigant

Solicitors:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1 Before the Court is the wife’s interim application for spousal maintenance. She seeks a payment from the husband of $738 per week. The husband, in his response, seeks no interim orders, but it is clear that he opposes the wife’s application.

Background

2The Court made orders on 25 February 2011 by consent in relation to property settlement. It would appear that the husband’s solicitors at the time drafted the Form 11 application for consent orders. The orders reflected a 50/50 division of assets. Both parties had advice and both had a lawyer sign the “statement of independent legal advice” on their behalf.

3The wife was working and had a stated income of $480 per week as an office administrator at the time. The Court approved the orders, but the orders included paragraph 7 which is in the following terms:

That both the applicant and respondent shall not make any claims against one another for spousal maintenance now or in the future.

4A significant issue is the validity of that clause. Parties are not able to contract out of their obligations under the Family Law Act 1975 by way of consent orders. In the event the parties wish to do so, they must enter a financial agreement pursuant to the Act. That allows them to defeat (with appropriate safeguards as to form) various provisions of the Act.

5This is usually the practice when parties want to ensure that no spousal maintenance is payable in the future, when such guarantees cannot be provided under the normal operation of the Family Law Act 1975. A common example is where a party relies upon an income‑tested pension or benefit and is otherwise unable to adequately support themselves without it. A court order, in that scenario, could not validly be made which defeated their right to claim spousal maintenance in the future.

6In this case, it appears the wife was working, but a party cannot contract out with a clause such as this. Unfortunately, two lawyers were involved in the drafting and checking of this clause and the Court approved it as part of the overall orders. Notwithstanding all of that, the clause is clearly invalid. It may be relied upon by the husband as an indicator of the intention of the wife to not claim spousal maintenance, but it cannot defeat her right to such a claim. I note that it has been somewhat effective given the wife’s claim has only been filed nearly four years later. The wife’s claim for spousal maintenance therefore must be determined according to normal legal principles, as if that order had never been made.

7The test under s 72 of the Act is whether the wife can satisfy the Court that she is unable to adequately support herself pursuant to the reasons set out in that section. The wife accepts that she has the physical and mental capacity for work. She works as a receptionist on a part‑time basis and is the primary caregiver to the two children. The current arrangements are that the children spend each weekend in the husband’s care, so the wife has the responsibility for the children during the week. I accept, in those circumstances, that she is unable to adequately support herself due to having the care and control of the two children.

Extent of the wife’s financial need

8The wife started part-time study by way of a Post Graduate Diploma of Psychology during the marriage.

9In October 2010 she commenced part-time work.

10Her affidavit sets out the steps that she must take to survive financially. An example is shopping at Good Sammy’s. She must access limited savings to meet her everyday living expenses. The wife’s income is reasonable in the circumstances and it is in accordance with her earning capacity. Her income is $575 per week plus $250 per week by way of child support payments, totalling $825 per week. I have ignored her Centrelink benefits as required by the Act.

11Her personal expenses are $1,708 per week. Given expenses claimed by the husband, I intend to reduce some of her expenses to a figure closer to the level that he claims. The following sets out what I consider to be reasonable reductions to the wife’s weekly expenses.

Item	Claimed Amount	Reduced Amount	Saving
Food	250	100	150
Household supplies	60	30	30
Clothing	122	50	72
Entertainment	205	155	50
Holidays	195	100	95
Hairdressing	60	20	40

12The overall savings set out above amounts to $437 per week. This reduces her claimed expenses to a more reasonable amount of $1,271 per week. Even making these reductions, the wife clearly has a need for spousal maintenance in at least the amount of $446 per week. I have done similar calculations where I have only taken into account the expenses the wife has allocated to her and have ignored any expenses relating to the children. By that process and comparing those figures to the wife’s income (excluding any child support) it makes little difference to the overall amount.

Husband’s capacity to pay

13The husband has an income of $2,311 per week. There is a significant difference in the parties’ incomes. The husband earns four times more than the wife. His expenses really only include one amount that is unreasonable. His total expenses amounts to $2,572 per week. He includes superannuation at $138 per week which must be reduced to nil. It should not be the case that he makes voluntary superannuation contributions when the wife is clearly in need of financial assistance.

14Given the children’s arrangements are that the children spend each weekend from Friday to Monday with him, his claimed expenses in relation to the children amount to the costs of maintaining them for three nights per week, and the wife maintains them for four nights per week. The amount the husband claims for the children’s expenses is $257 per week and the wife claims $410 per week. Both amounts therefore appear to be in reasonable proportions.

15The further amounts claimed by the husband are reasonable expenses and for the most part are close to what I have considered to be reasonable for the wife.

16The above calculation therefore has reduced his claimed expenses from $2,572 per week to $2,434 per week. This amount still exceeds his income and I therefore conclude that he has no capacity to pay spousal maintenance on an interim basis. The reality is that he has a significant amount of tax payable per week and has larger mortgage repayments.

17I must also consider the overall circumstances of each party as it is not only income to which the Court is able to look to achieve a spousal maintenance order. The husband, in terms of major assets, owns a home worth approximately $740,000 with a mortgage of $340,000. The equity in his property is about $400,000. The wife owns a property worth $530,000 with a mortgage of $90,000. Her equity therefore is $440,000.

18In those circumstances I am not satisfied that the husband has the appropriate capacity to pay spousal maintenance and I therefore dismiss the wife’s interim application.

I certify that the preceding [18] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary