Miller and Miller (No.2)

[2014] FCCA 962

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER & MILLER (No.2) [2014] FCCA 962

Catchwords:
FAMILY LAW – Urgent spousal maintenance order reconsidered at interim hearing.

Legislation:

Family Law Act 1975, ss.75(2), 75(3)

Applicant: MR MILLER

Respondent: MS MILLER

File Number: PAC 1292 of 2013

Judgment of: Judge Dunkley

Hearing date: 8 May 2014

Date of Last Submission: 8 May 2014

Delivered at: Parramatta

Delivered on: 13 May 2014

REPRESENTATION

Solicitor Advocate for the Applicant: Ms Heaton

Solicitors for the Applicant: Claire Heaton Solicitor

Solicitor Advocate for the Respondent: Mr Tilley

Solicitors for the Respondent: Tilley Family Law & Mediation

ORDERS

1. The urgent spousal maintenance order being order 4 made on 21 February 2014 is varied as and from 8 May 2014 to the sum of $97 per week.

2. Payment due and payable thereafter on the Thursday of each week, first such payment due 15 May 2014with payment to continue until the first day of the Final Hearing of the husband’s Initiating Application filed 1 October 2013.

IT IS NOTED that publication of this judgment under the pseudonym Miller & Miller is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1292 of 2013

MR MILLER

Applicant

And

MS MILLER

Respondent

REASONS FOR JUDGMENT

1. On 21 February 2014, pending further order Mr Miller (hereinafter the husband) was ordered to pay to Ms Miller (hereinafter the wife) urgent spousal maintenance in the sum of $200 per week, first such payment due on 28 February 2014 and thereafter due on each Friday.

2. Also on 21 February 2014 the case was listed for further directions and/or reconsideration of the urgent spousal maintenance order. This directions hearing was to happen on 14 April 2014.

3. On 14 April 2014 the Initiating Application filed on 1 October 2013 by the husband seeking property settlement orders and the Response filed by the wife on 13 February 2014 which she sought orders for interim spousal maintenance were listed for final hearing of the competing property settlement and spousal maintenance applications. That final hearing is scheduled for 9 and 10 July 2014.

4. On 14 April 2014 the case was also adjourned to 8 May 2014 for further consideration of the urgent spousal maintenance order. This adjournment was ordered so as to allow the husband to file further documents.

5. By 8 May 2014 the husband had filed an updated Financial Statement sworn 1 May 2014, an Affidavit by his partner Ms B sworn 1 April 2014 and a further Affidavit by himself sworn 14 April 2014.

6. In addition he relied on his Initiating Application filed 1 October 2013 and his Affidavit sworn 26 September 2013 except for paragraphs 37-43.

7. The wife continued to rely on her Response filed 13 February 2014, her Financial Statement sworn 12 February 2014 and her Affidavit sworn 12 February 2014.

8. Exhibited on 8 May 2014 and thereby forming part of the documentary evidence was:

   ·    Exhibit 1 – Commonwealth Bank home loan statement for the period 10 June 2013 to 25 April 2014;

   ·    Exhibit 2 – St George Bank Visa statement for the period 11 June 2012 to 10 July 2012;

   ·    Exhibit 3 – Husband’s Credit Corp Group statements 6 February 2012 to 24 March 2014;

   ·    Exhibit 4 – Family Tax Benefit statement for Ms B dated 6 September 2013;

   ·    Exhibits 5 – Ms B’s pension concession card;

   ·    Exhibit 6 – The wife’s [qualification omitted];

   ·    Exhibit 7 – Letter from CRS Australia dated 5 May 2014.

9. Also exhibited were the documents that formed the Exhibits on 21 February 2014.

10. The wife is the Applicant for spousal maintenance.

11. At both the hearing of the urgent spousal maintenance application on 21 February 2014 and the interim spousal maintenance hearing on 8 May 2014 the wife established she was in need of spousal maintenance.

12. The husband on 8 May 2014 conceded the wife was in need of spousal maintenance at least until the final hearing.

13. It was the husband’s case on 21 February 2014 and remained his case on 8 May 2014 that he did not have the capacity to pay spousal maintenance. The additional evidence he put before the Court on 8 May 2014 was intended to persuade the Court to accept his case and overcome the short comings of his case and adverse comments made about his case on 21 February 2014.

14. The case as dealt with on 8 May 2014 was an Interim Hearing “on the papers” and without cross examination.

15. Essentially the wife sought a continuation of the order for urgent spousal maintenance made on 21 February 2014 and the husband sought that there be no order made for him to pay spousal maintenance.

16. It was an agreed fact that between 21 February 2014 and 8 May 2014 to be precise on [date omitted] 2014 the parties’ youngest child [X] turned 18 and the Husband’s assessment to pay child support ceased. [X] by [date omitted] 2014 had also completed his HSC and was employed as an apprentice, although he remained living with the wife in the former matrimonial home. 

17. As a result of the additional evidence lead by the husband I find that his gross income is $660 per week. He is paid in cash. I also find that he receives no cash payments in addition to his gross income. I am now satisfied other deposits to his account come via his partner Ms B. I was not so satisfied on 21 February 2014. Indeed on that date I was not satisfied the husband had made full and frank disclosure. By 8 May 2014 I was satisfied he had made full and frank disclosure of his financial circumstances.

18. In part ‘N’ of his Financial Statement sworn 1 May 2014 the husband swears to the fact that his weekly expenses are $100. He swears to the weekly expenses of other children being his partner Ms B’s children. Those children are not his biological children and he has no legal obligation to maintain them.

19. The husband in part ‘F’ of his Financial Statement sworn 1 May 2014 discloses that his partner Ms B contributes $518 per week to his benefit. It would seem from her Affidavit and part ‘N’ of the husband’s Financial Statement her Centrelink payments benefit both the husband and her children.

20. In part ‘G’ of his Financial Statement the husband discloses total personal expenditure of $605. Part of that personal expenditure is $55 per week by way of assessed child support for [X]. This liability ceased on 3 May 2014 thereby reducing his total personal expenditure to $550 per week.

21. Included within both part ‘G’ and part ‘N’ of the husband’s Financial Statement is an amount of $25 per week for car insurance.

22. This is a double counting and the amount will therefore not be allowed in his Part ‘N’ expenses. Thereby reducing that claimed amount from $100 per week to $75 per week.

23. That $75 per week then has to be added to his current total personal expenditure of $550 per week because no amount is included in paragraph 32 of his Financial Statement.

24. I therefore find the husband’s total weekly expenditure to be $625.

25. He therefore has an excess of income over expenditure and thereby a capacity of $35 per week.

26. On 16 September 2013 the husband received a tax refund of $3231.22 which he has himself withdrawn from his account. He says he retains it as a cash reserve. This equates to an amount of $62.00 per week if the total is divided over a 52 week period.

27. This amount of $62 when added to $35 equals $97.

28. I am now even more satisfied the husband has a capacity to pay spousal maintenance, and that capacity amounts to $97 per week.

29. The parties are of similar age.

30. The husband’s income is higher than the wife’s. She has not worked since late 2013. She has with the assistance of CRS Australia retrained. They are helping her look for employment.

31. She receives Centrelink payments. This income is ignored pursuant to s.75(3) of the Family Law Act1975.

32. Neither party has a child under 18 to support.

33. Their standard of living is similar.

34. The wife lives in the former matrimonial home and is paying an amount towards the mortgage.

35. The husband pays rent.

36. Neither has an extravagant lifestyle.

37. A final property settlement hearing is listed to take place in July 2014.

38. The parties married on [omitted] 1989.

39. They raised two children. They separated in either November or December 2011.

40. They were divorced on 14 August 2013 and the order became absolute one month later.

41. Their marriage was long.

42. The husband has a partner who receives social security payments and child support from her former husband.

43. Considered the above factors and given the wife’s need, and the husband’s capacity to pay, it is ordered that the urgent spousal maintenance order be reduced as and from 8 May 2014 to the sum of $97 per week due and payable thereafter on the Thursday of each week, first such payment due 15 May 2014.

44. The date of 8 May 2014 was the interim hearing date. This is therefore the appropriate date to vary the existing order.

45. Payment of this varied amount is to continue until the final hearing. At the final hearing all the evidence can be tested by cross examination, and a final decision about what if any amount of spousal maintenance is to be paid, can be made.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  13 May 2014