MIDGLEY & MIDGLEY

[2020] FamCA 623

FAMILY COURT OF AUSTRALIA

MIDGLEY & MIDGLEY [2020] FamCA 623

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Application by the wife for periodic spousal maintenance payments – Court satisfied that the wife is unable to adequately support herself – Court satisfied that the husband can reasonably meet the payments – Orders made – Noted that the husband has agreed to make other voluntary payments such as to the parties’ children’s school fees and medical expenses

Family Law Act 1975 (Cth) ss 72, 75(2)

Bevan & Bevan (1995) FLC 92-600
Mitchell & Mitchell (1995) FLC 92-601
Redman & Redman (1987) FLC 91-805
Fewster & Drake (2016) FLC 93-745

APPLICANT: Ms Midgley

RESPONDENT: Mr Midgley

FILE NUMBER: HBC 523 of 2019

DATE DELIVERED: 30 July 2020

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 7 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs K Mooney SC

SOLICITOR FOR THE APPLICANT: McVeity Dean

COUNSEL FOR THE RESPONDENT: Mr F Dixon SC

SOLICITOR FOR THE RESPONDENT: Abetz Curtis

Orders

1. Mr Midgley (‘the husband’) shall pay to Ms Midgley (‘the wife’) the sum of $866 spouse maintenance per week payable as follows:-

   a.Such spouse maintenance liability shall commence as and from 7 July 2020, the first payment to be made seven days from the date of this order and thereafter paid fortnightly in arrears; and

   b.Such spouse maintenance shall be paid by the husband into an account nominated by the wife provided the husband’s solicitors, within three days of the date of this order.

2. These proceedings are listed for further direction before Deputy Chief Justice McClelland at Hobart on 2 December 2020 at 9.30am.                 

IT IS NOTED

1. The husband has agreed to make voluntary payments, in addition to any spouse maintenance, in respect of the following:-

   (a)the hospital and medical insurance for the family;

   (b)the mortgage repayments, council rates, waters rates, insurance, maintenance costs and landscaping materials on the property occupied by the wife at B Street, C Town;

   (c)the wife’s mobile telephone internet and NBN service provided to the home at C Town;

   (d)the expenses in relation to the motor vehicle used by the wife including petrol, service, insurance, tires and repairs;

   (e)school fees, sporting club fees, and expenses, clothing costs, including school uniforms and medical fees for each of the parties’ children;

   (f)the children’s oral surgery and braces; and

   (g)the wife’s life insurance premium of about $88 per week.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Midgley & Midgley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 523 of 2019

Ms Midgley

Applicant

And

Mr Midgley

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Midgley (‘the wife’) and Mr Midgley (‘the husband’) are engaged in litigation in the Family Court of Australia in respect of property and spouse maintenance.

2. On 27 March 2020 the wife sought a spouse maintenance order against the husband of $1,140 per week, backdated to 1 January 2020.

3. The husband opposed that order.

4. These proceedings and some other issues came before me by way of interim application heard 7 July 2020.  Each of the parties were represented by senior counsel and competent solicitors.

5. The substantive proceedings in this matter are likely to be heard in early 2021, once the properties and businesses of the parties are valued.

6. The parties (sensibly) said they were looking to find a mediated solution once those valuations were determined.

7. An enforcement application and an application for disclosure were settled by the parties on 7 July 2020 and consent orders were made at that time.

8. The issues to be determined in these proceedings were:-

   (a)whether the wife was reasonably able to support herself given her circumstances; and

   (b)whether the husband had the capacity to meet those needs; and

   (c)the court having determined the husband does have the capacity to meet those needs, then what order ought to be made having regard to the provisions of s 75(2) of the Family Law Act 1975 (Cth) (‘the Act’).

BACKGROUND

1. The husband is aged 44 and the wife is aged 43.  They met in about 1992 and purchased a property together in 1999.  The husband asserts the wife and he commenced cohabitation in 2000/2001, and the wife asserts that it was in about 1998.  The parties married in 2003. 

2. They have two children; a son aged 15 and a daughter aged 13.  The parties separated in April 2017.

3. The marriage was dissolved in mid 2019 and the husband commenced these proceedings in September 2019.

4. This was a difficult case as there were significant issues of fact in dispute between the parties.  On the application of the husband, I gave leave for senior counsel to cross-examine the wife and her present boyfriend Mr D in the husband’s case and cross-examine the husband by senior counsel for the wife in the wife’s case.

5. As such I was able to make some limited findings of credit.

6. The wife relied upon the following:-

   (a)her Application in a Case filed 27 March 2020;

   (b)her Affidavit filed 27 March 2020;

   (c)her Financial Statement filed 27 March 2020 (albeit amended to reduce the amount she had in her savings account from about $290,000 to about $205,465);

   (d)an affidavit of the wife’s boyfriend Mr D filed 2 July 2020; and

   (e)a tender bundle.[1]

   [1] Exhibit E3 wife’s 110 pages.

7. The husband relied upon the following:-

   (a)his Response to an Application in a Case filed 9 June 2020;

   (b)his Affidavit filed 9 June 2020;

   (c)his Financial Statement filed 9 June 2020; and

   (d)a tender bundle.[2]

   [2] Exhibit E4 husband’s tender bundle 427 pages.

8. In addition, during the course of the hearing, the husband was cross-examined in relation to some director’s loans and that material was treated as an exhibit.[3]

   [3] Exhibit E5 director’s loans [the husband] transaction.

9. In addition, I required the parties to tender their case summaries, which were also treated as exhibits.[4]

   [4] Exhibit E6: wife’s case summary and Exhibit E7: husband’s case summary.

10. In relation to the tender bundles, I indicated to counsel that I would not be undertaking any forensic accounting research into the documents produced and I would only have regard to those pages to which I was taken.

11. I indicated that the parties could object at any time during the course of the hearing in relation to documents sought to be relied upon by the other party contained in the tender bundle.

12. I also had regard to the parties’ case summaries as submissions only except where their history provided by senior counsel was consistent.

13. In these reasons any statement of fact is to be generally regarded as a finding of fact unless the contrary is obvious from the context.

THE LAW

1. Given the limited time frame for which the order for spousal maintenance will operate, I note the comments of the Full Court in Redman & Redman (1987) FLC 91-805 where the Full Court said, at 76,081 that:-

   … this was an interim order. Whilst we agree with the view expressed in Ashton that in principle such an order is one under sec. 74, to which the principles of sec. 72 or sec. 73 may be applicable, as the case may be, the very fact that the order is limited in time imports certain different considerations. One of these is that such an order is intended to be reconsidered, quite apart from a variation under sec. 83. …

2. Section 72(1) of the Act provides that:-

   (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).

3. Section 72(1) sets out the three circumstances which may cause the need for maintenance:-

   (a)by reason of having care and control of a child under the age of eighteen years;

   (b)by reason of age, mental incapacity for appropriate gainful employment; or

   (c)having regard to any relevant matter under s 75(2).

1. The Full Court in Bevan & Bevan (1995) FLC 92-600 set out the process in determining spousal maintenance applications. Their Honours said as follows:-

   Taken together then, we would state the law as being that an award of spousal maintenance requires:

   1.a threshold finding under s72;

   2.consideration of s74 and s75(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 s74, with "reasonableness in the circumstances" as the guiding principle.

THE EVIDENCE

The Wife

1. The wife gave evidence in terms of her Affidavit and Statement of Financial Circumstances both filed 27 March 2020.  She said, and I accept, that she needed to lodge tax returns after separation when she learnt that no returns had been lodged since 2009.  The wife has arranged for tax returns to be lodged and has brought her tax duties up to date.

2. In her affidavit evidence she said she was living at the family home at C Town in Tasmania and that the husband had been paying the mortgage and other expenses.

3. Between December 2019 and February 2020 payments began to fall into arrears with regard to the home and with regard to services such as hot water.  In addition she later discovered that the husband was not paying the younger child’s school fees.

4. The wife had been in receipt of $700 per week from the husband and his business from separation until early January 2020 when that payment was unilaterally terminated.

5. This occurred at a time when the elder child moved to Sydney to attend a prestigious private high school.  The younger child continued to live with the mother.

6. The mother asserts, and was not seriously challenged, that she has a health condition which adds to her grocery charges.  I have had regard to this circumstance in this determination.

7. Apparently, the younger child is a gifted sports player and travels extensively and incurs significant expenses.  Most of these activities have been paid for by the husband, although this ceased earlier in 2020.

8. The sports events have clearly stopped given the COVID-19 restrictions.

9. The wife also asserts that the husband ceased paying private health insurance. 

10. The wife gave evidence in terms of her employment and the change of employment.  The wife’s evidence as to income was supported by a letter from her employer against which she was cross-examined.

11. At the time of the hearing the wife had $205,465 in savings, although this was likely to be increased by $20,000 given some consent orders that were made on 7 July 2020.  This order was based on a draft of the orders tendered in evidence.[5]  The actual order was somewhat different.

    [5] Draft order Exhibit E1.

12. The wife provided evidence of the health insurance payments, her tax to which I have alluded to elsewhere and she conceded, frankly, that the sport costs for the younger child since early 2020 have reduced significantly.

13. The wife was cross-examined by senior counsel for the husband and gave cogent and clear evidence about her working hours and her ability to retain full time employment.  For the purpose of this determination, I accept her evidence in that regard.

14. The wife agreed that the husband pays the mortgage and rates and until earlier this year, the gas and other expenses on the home.  Similarly, she agreed the husband had been paying the younger child’s school fees although her evidence, supported by the documentation[6] show that the school fees were in arrears.  I accept her evidence that she paid the fees.

    [6] Exhibit E3 page 78.

15. There was cross-examination about the wife’s tax refunds and amounts she received in 2019.  What is clear however is that her current income is about $740 per week net and that is supported by the evidence.[7]

    [7] Ibid page 77.

16. The wife was cross-examined in relation to her spending of money and the reduction of the money in her account from $365,000 to $205,000; a reduction of $160,000.  Clearly $20,000 of that sum was applied towards the mortgage that will be repaid leaving a balance of $140,000.  At least $20,000 of that sum was spent on some overseas travel and the wife gave evidence of the balance that was involved in legal costs.

17. Given the nature and scope of these proceedings, high legal costs are not unexpected.

18. Furthermore, the wife ought not to be forced to diminish her capital by way of spousal maintenance particularly in the circumstances of these parties.

19. The law seems clear that a person seeking spousal maintenance is not necessarily obliged to use any capital that they might have before they can receive the benefit of an order for spousal maintenance (see Bevan & Bevan (1995) FLC 92-600; Mitchell & Mitchell (1995) FLC 92-601).

20. In this case I had regard to the significant resources of the husband and I took into account the money held by the wife.  She was facing a costly hearing if the parties are unable to find a mediated result.  I had regard to the Full Court (Strickland, Aldridge & Austin JJ) decision of Fewster & Drake (2016) FLC 93-745 where it was observed that:-

    106.However, these two authorities do not establish that the capital of a person seeking spousal maintenance is always to be entirely disregarded. Rather, the point is that the possible need to retain that capital and not use it for day to day support is a relevant consideration to take into account.

21. The wife conceded against interests that the husband had agreed to pay $2,200 for new tyres for her vehicle. 

22. The wife has travelled to F Town a number of times in 2019 and early 2020 as her present boyfriend Mr D has bought a property up there.  Clearly, due to the COVID-19 restrictions at the present time, travel to Queensland is not available to her.

23. Most of the wife’s expenses apart from those I have raised later in these reasons are reasonable.

24. The wife claims $137 per week in holidays for herself and presumably the children. 

25. It was put to the wife that she should reduce her holiday expenditure.  Given the husband’s travel with his girlfriend and given the lifestyle of the parties, the amount the wife sought for travel was, in all the circumstances, modest.  This is particularly the case given the needs for her to travel with the younger child.

26. The wife was challenged as to her earnings.  The wife provided evidence as to her earnings in terms of a letter from her employer dated 1 May 2020.  The wife is a qualified health professional and worked through 2019 four days per week, but during school hours.  At the end of 2019 or early 2020 she was required to work full time.  She found this difficult given the needs of the children and living alone so she took the offer available to her of three days a week from either 8.30 am to 4.30 pm or from 9.00 am until 5.00 pm.

27. The wife’s income and work hours were reduced a little bit earlier in the impact of the COVID-19 pandemic, but is now back to three days per week or six days per fortnight with net earnings of $1,438.72 per fortnight, which is about $719 per week.

28. It was argued that the wife had a greater capacity to earn income given her training.  The wife said that she had sought other work, but added that the only other employment reasonably available to her in that area was provided by her present employers.

29. I am satisfied that the wife is earning to her capacity, given the circumstances in which she finds herself as a single parent, except that she receives some assistance from her boyfriend who stays overnight on some occasions.

30. I have accepted, for the purpose of this determination, that they are not in a de facto relationship.  Similarly I accept that the husband and his present girlfriend are, for the purposes of these proceedings, not in a de facto relationship.

31. The wife asserts that she has living expenses of $1,785 per week for herself and the parties’ younger child (and including expenses for the elder child when he stays with her).  The wife’s expenses include that for the elder child when he stays with her.  He was recently with her for about seven to nine weeks prior to the impact of COVID-19.  He spends time with her on a regular basis.

32. I accept that the majority of the expenses for the elder child, including school fees and other extra-curricular expenses, are effectively met by the husband through payments out of the business.

33. The wife was challenged in respect of a number of items of expenditure.

34. Her evidence on food was that it cost $474 per week for herself (including alcohol) and the younger child.  I am satisfied that a large proportion of that cost relates to the wife, clearly the alcohol would not be for the child.  The husband asserted that his food was $450 per week.  I am satisfied, on the evidence, that the amount claimed by the wife for food was reasonable.

35. The wife sought house repairs of $120 per week.  She provided no detail in respect of that amount and given those circumstances and the significant support provided by the husband for the house, I am satisfied that the amount for maintaining the home should be reduced to about $50 per week.

36. I accept that the wife needs to provide for her own health insurance.  The husband said, and I rely upon his assertion in that respect, that he will pay a number of expenses including the children’s medical and hospital insurance.  As such I will allow the wife’s claim for medical insurance for herself at $75 per week.

37. The wife claimed gas heating of $184 per week and gave cogent evidence in that respect. 

38. The younger child is engaged in sports and has travelled extensively interstate and intrastate.  

39. The wife asserts that this activity costs about $163.  I have accepted the wife’s evidence in that regard.

40. Similarly, I have accepted her evidence in relation to her medical and dental expenses.  

41. The wife was challenged in relation to $404 per week (about $21,000) per year for clothing and shoes.  Given the evidence, it seems a little high.  I have allowed $300 per week in that respect.

42. I have not allowed the wife’s claim in the sum of $75 per week for educational expenses given the husband’s undertaking to meet both children’s school fees.  If he does not do so then it is open for the wife to make further applications whether by child support or otherwise.

43. The wife claims per week of $1 for dry cleaning, $5 for books and expenses, $11 for gifts, $12 hairdressing and toiletries and other necessary commitments such as gym, beautician et cetera of $81 seems reasonable.

44. Overall the wife impressed as a frank and straight forward witness.  Given my observations of her I am satisfied that she endeavours to tell the truth, although from her own subjective point of view.

Mr D

1. Mr D is the wife’s boyfriend.  He is quite well off.  He provided evidence in terms of his affidavit filed 2 July 2020.  He confirmed that he and the wife are boyfriend and girlfriend, but they live in separate homes. 

1. In cross-examination he conceded that he spends two, three and sometimes four nights per week at the wife’s home.  The wife spends time with him, from time to time, at his Hobart home and in F Town.

2. He says, and I accept, that he and the wife do not live together.

3. Both Mr D and the wife were cross-examined as to why he did not pay board.  Given the circumstances of their relationship and travel, I am not satisfied that it is an appropriate area for a claim for board.

4. A similar argument could, in any event, be raised in relation to the husband. 

5. Mr D was cross-examined in relation to a number of areas.  First of all as to why he required the payment of $19,000 from the wife after their overseas trip.  His answer was plain and frank, that is, that the wife agreed to pay that sum and in accordance with that agreement, she paid it.

6. I am not satisfied that he is a source of funds for the wife.  I am satisfied that, at the present time, they are keeping their property and lives separate.  Interestingly, as is the husband and his girlfriend.

The husband

1. The husband gave evidence in accordance with his affidavit sworn and filed 9 June 2020 and his Financial Statement of the same date.

2. The wife had given oral evidence that $50,000 of the money provided to her by the husband at separation was to be used in holidays.  The husband denied that assertion.

3. Given the nature of the application before me, there is no need for me to make a determination in respect of that issue.

4. The husband agreed he had a girlfriend and that she spent three or four nights at his home per week.  He conceded that they went on holidays together including a cruise, a trip to Hamilton Island and a trip to New Zealand, albeit on a business trip.

5. The husband agreed that he paid for the cruise tickets and paid for the Hamilton Island accommodation.

6. The husband was cross-examined about his property.  His property at Suburb G was tenanted, but he had access to three other properties in which he lived, namely Suburb J, a holiday home at K Town and a home in his name at L Town.  He has access to a number of cars to which I refer later in these Reasons.

7. The husband was cross-examined in relation to his financial records.  He showed a cavalier attitude in response to answers to questions and seemed to make no serious effort in finding the pages raised with him by senior counsel.

8. The husband asserted that school fees were paid from those accounts but, when pressed, they clearly were not.  There was a significant intermingling of business and personal expenditure in the accounts.

9. He said that much of the monies spent went against his director’s loans although when pressed about where they appeared on the loan documents, he said the document was incomplete.

10. The husband conceded he used company funds to purchase a marina for about $100,000, motor bikes for about $16,000 and a motor vehicle.  When pressed for questions he often deflected or obfuscated.   He asked questions of himself and then happily answered his own question.  That approach was unsatisfactory.

11. I am not satisfied, on the material provided to me for this hearing, that he had made full and frank disclosure.  I am satisfied that he was spending a significant amount of money, perhaps upwards of $30,000 or $40,000 per month, plus the monies to pay school fees and other expenses through the company.

12. I am not convinced as to the reliability of the husband’s evidence after having observed him being cross-examined.

SUMMARY

1. Given the circumstances of these parties, I am satisfied that the wife’s claim for her support is reasonable.

2. These amounts add up to $1,606 per week of which I am satisfied at least 60 per cent relates to the wife.  The balance of about $642 is paid by the wife from her income to meet the reasonable needs of the children.  This is not a de facto or surreptitious child maintenance claim, it is a spouse maintenance claim.

3. The first question is whether the wife is unable to support herself adequately. 

4. As I said earlier, the wife was employed by the husband’s company.  She is no longer working there.  She is trained as a health professional and is working to capacity in that role.

5. On the evidence, I am satisfied that the wife has made her claim that she is unable to adequately support herself.

6. As to the husband’s capacity to meet an order and whether there are funds and money from which the husband can satisfy a spousal maintenance order.  In this case it is clear that the husband has access to significant funds.

7. In his evidence the husband conceded that he had purchased a number of motor vehicles, to the value of about $1.2 million or $1.3 million since separation. [8]  In addition, the husband had another five or six hundred thousand dollars in motor vehicles which he used or had in his control. [9]

   [8] Exhibit E6 wife’s case summary 12(a) to (g).

   [9] Exhibit E6 wife’s case summary 12(h) to (o).

8. The husband conceded that in February or March this year he was able to afford (using company funds, albeit allegedly set off against his directors loan account) $110,000 and that he had purchased a motor vehicle 1 with an insured value of $225,000.

9. It is clear on the evidence given and the lifestyle of the husband, his overseas travel and travel generally, his ability to operate and have three houses available to him and his general spending, that he has significant earnings available to him and he can buy that which he wants to buy including motor bikes, cars, property, furniture and the like.

10. Generally findings in respect of an interim application are difficult.  In this case, it is not so difficult.

11. In determining the reasonable ability of the husband to pay maintenance I have had regard to not only the husband’s income, but also his spending since separation which has been significant. I have had regard to the wife’s capacity to meet her needs having regard to the relevant provisions of s 75(2) of the Act.

12. Given those circumstances, I am satisfied that the wife has a reasonable need for spouse maintenance in the sum of $866 per week.

13. I have had regard to the relevant provisions of s 75(2) of the Act in calculating that sum.

SECTION 75(2) OF THE ACT FACTORS

(a)the age and state of health of each of the parties; and

1. I have had regard to the age and state of health of each of the parties.  There seems to be no issues as to their health.

(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; an

1. I will talk about the husband’s income and resources elsewhere in these Reasons. 

(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

1. Each of the parties has the care of the children, including the elder child who attends a private school in Sydney and a younger child who lives with the wife in Tasmania, although each of the parents seem to spend significant time with each of the children.

(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

1. At the present time there is no child support being paid by the husband given the circumstances.

(e)the responsibilities of either party to support any other person; and

1. Neither of the parties have any other party to whom they have an obligation to support.

(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i)any law of the Commonwealth, of a State or Territory or of another country; or

(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

1. Section 75(2)(f) was not the subject of submissions.

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

1. I am satisfied that the wife’s standard of living has deteriorated since separation.  I am satisfied that the husband’s standard of living has not in any way altered.

(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration will 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;

1. Section 75(2)(h) was not the subject of submissions.

(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

1. Section 75(2)(ha) was not the subject of submissions.

(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party

1. The company which is meeting most of the husband’s costs is being run by him and he is entitled to a wage of some description, although the exact amount payable to him is opaque.  Nonetheless, this company is worth a significant amount of money and it is meeting his lifestyle and I have had regard to that circumstance.

(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;

1. The husband and wife have been in relationship for about twenty years.

(l)the need to protect a party who wishes to continue that party’s role as a parent;

1. The wife wishes to continue in her role as the primary carer of the parties’ younger child.

(m) if either party is cohabiting with another person – the financial circumstances relating to cohabitation;

1. Each party has formed relationships, but neither are in de facto relationships or cohabiting with another party.  Their boyfriend/girlfriend spends significant time with them and vice versa.

(n)the terms of any order made or proposed to be made under section 79 in relation to:

(i)the property of the parties; or

(ii)vested bankruptcy property in relation to a bankrupt party; and

1. Section 75(2)(n) was not the subject of submissions.

(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

1. As to child support, as I indicated earlier, that is not paid.

(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

1. I have taken into account all of the above matters individually or collectively.

(p)the terms of any financial agreement that is binding on the parties to the marriage; and

1. Section 75(2)(p) was not the subject of submissions.

(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

1. Section 75(2)(q) was not the subject of submissions.

The husband’s earning capacity

1. When giving evidence, the husband prevaricated in respect of where monies came from and how it was provided.  His evidence was troubling.  What became clear from his evidence is that he was living in three houses, has expensive cars, expensive taste and has travelled regularly with his girlfriend.  He is able to fund school fees for the elder child up to $70,000 per year and he is able to purchase significant real estate and other items such as cars, furniture et cetera. without much difficulty.

2. I accept the wife’s evidence that the husband has not been forthcoming in his disclosure.  Many of the documents seemed to come in shortly before the hearing and that during the hearing, an order was made, by consent, for further and proper disclosure.

3. I am satisfied that the husband has an income earning capacity far greater than the $200,000 which he asserts.

4. Consequently, I am satisfied that the husband is able to reasonably meet a spouse maintenance application.

CONCLUSION

1. I am satisfied on the evidence that the wife has demonstrated that she is unable to support herself by reason of her need to care for the parties’ younger child, the limitations on her ability to earn a greater income and the other matters I have discussed earlier in these Reasons.

2. I am satisfied on the evidence that the husband is reasonably able to meet this spousal maintenance order.  In that regard I have considered those expenses he is presently voluntarily paying and I have taken them into account in determining the level of spousal maintenance.  He has the care and support of the parties’ elder child and the need to support himself.  All that being said, he still has excess capacity to meet this order. 

3. The threshold under s 72 of the Act is met.

4. I accept that spouse maintenance to restore an applicant’s pre-separation standard of living is not automatically awarded, even where the respondent's means permit.  It is a discretionary determination.

5. I have endeavoured have exercised the Court’s discretion in accordance with the provisions of s 74 of the Act.

6. Having regard to all of these circumstances, I am satisfied that it is appropriate and proper to make an order for payment of spouse maintenance by the husband for the wife at the rate of $866 per week.  

7. The wife asked for the order to apply from January 2020.  In that regard, I note that the wife has managed adequately since that time, albeit using some capital available to her.  As such, I will be making the order to operate as and from the date of the interim hearing, and I will so order.

8. Given that the husband has agreed, notwithstanding these orders, to continue to meet some expenses for the wife and for children, I have noted them in the order, so that there can be no misunderstanding.

9. They are:-

   (a)the hospital and medical insurance for the family;[10]

   [10] Husband’s affidavit filed 9 June 2020 paragraph 9 and 15.

   (b)the mortgage repayments, council rates, waters rates, insurance, maintenance costs and landscaping materials on the property occupied by the wife at B Street, C Town;[11]

   [11] Ibid paragraphs 10 and 17.

   (c)the wife’s mobile telephone internet and NBN service provided to the home at C Town;[12]

   [12] Ibid paragraph 11.

   (d)the expenses in relation to the motor vehicle used by the wife including petrol, service, insurance, tires and repairs;[13]

   [13] Ibid paragraph 10.

   (e)school fees, sporting club fees, and expenses, clothing costs, including school uniforms and medical fees for each of the parties’ children;[14]

   [14] Ibid paragraph 21.

   (f)the children’s oral surgery and braces; and[15]

   [15] Ibid paragraph 22.

   (g)the wife’s life insurance premium of about $88 per week.[16]

   [16] Ibid paragraph 12.

I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 30 July 2020.

Associate: 

Date:  30 July 2020