Miller &Miller

[2014] FCCA 687

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER &MILLER [2014] FCCA 687

Catchwords:
FAMILY LAW – Spousal maintenance.

Legislation:

Family Law Act 1975, s.75(2)

Applicant: MR MILLER

Respondent: MS MILLER

File Number: PAC 1292 of 2013

Judgment of: Judge Dunkley

Hearing date: 21 February 2014

Date of Last Submission: 21 February 2014

Delivered at: Parramatta

Delivered on: 21 February 2014

REPRESENTATION

Counsel for the Applicant: Mr Mialnovic

Solicitors for the Applicant: Prestige Solicitors & Associates

Solicitor Advocate for the Respondent: Mr Tilley

Solicitors for the Respondent: McLarens Lawyers

ORDERS

1. The parties are to attend a Conciliation Conference with a Registrar of this Court at 2.15pm on 1 April 2014

2. Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 prior to the Conciliation Conference.

3. This case is listed for further directions and/or reconsideration of the urgent spousal maintenance order at 11.30am on 14 April 2014.

4. Pending further order, the husband is to pay urgent spousal maintenance to the wife in the sum of $200 per week with the first such payment due on or before 4.00pm on 28 February 2014 and thereafter due on or before 4.00pm on each subsequent Friday.

THE COURT NOTES THAT:

1. On the adjourned date there will be an application by and on behalf of the wife for an injunctive order pursuant to section 114 relating to the signing of a document that will facilitate a reduction in the parties’ mortgage.

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. By Response filed 13 February 2014 supported by an Affidavit sworn 12 February 2014 and reliant upon a Financial Statement sworn 12 February 2014, Ms Miller seeks an order for urgent spousal maintenance characterised and quantified as a monthly mortgage amount due and payable plus $250 per week.  It is submitted on her behalf that the monthly mortgage amount is $363 per week currently but it would seem that there may be some scope for the parties to reduce that amount through a joint approach and/or negotiations with the bank. 

2. Mr Miller filed an Initiating Application on 1 October 2013 seeking property settlement orders.  He also filed an affidavit he swore on 26 September 2013 and a Financial Statement that he swore on 26 September 2013.

3. I accept the submission made on his behalf that those documents were prepared for the purposes of a financial settlement negotiation/hearing and not with respect to a spousal maintenance application. 

4. Yesterday, when the case was listed, Mr Miller sought and obtained an adjournment. The adjournment was only granted for a little over 24 hours, to prepare to meet Ms Miller’s application for an urgent spousal maintenance order.

5. The case was called on again this afternoon at 2.15. 

6. There seems to be no dispute with the following chronology: 

[date omitted] 1962	Ms Miller was born
[date omitted] 1963	Mr Miller was born
[date omitted] 1989	the parties married
19 December 2011	the parties separated
14 August 2013	a decree nisi was pronounced with respect to their marriage
15 September 2013	the parties’ divorce became absolute and an order issued
1 October 2013	within the time limits provided for by the legislation, Mr Miller filed an initiating application seeking property settlement orders

1. Mr Miller works as a [omitted] and has for a long time.  Ms Miller has worked as a [omitted] on a casual basis.  She now does not work. She last worked as a [omitted] in November 2013. She says in her most recent affidavit that she is yet to be offered casual work as a [omitted] in 2014.  She is undergoing training in [omitted]. She will complete that training in April and will begin looking, she says, for work in a [omitted] thereafter. 

2. Having regard to Exhibit ‘A’ Mr Miller, has a disclosed and accepted gross income of $34,330 per annum for the financial year ended 30 June 2013, and after the lodgement of his tax return (which has been done) he received a tax refund of $3231.22. He received the refund on or about 16 September 2013. It was paid by direct credit to his S1 account, see Exhibit ‘F’. A week later, he withdrew $3000 in cash and what has happened to that money is not clear. 

3. His payslip – the only payslip currently available is for the period 20 October 2013 to 11 November 2013. That payslip is Exhibit ‘B’.  It shows an employment with [H] Pty Limited.  It shows that he is paid by cheque weekly. It shows the net amount that he receives is $540 per week, after deduction of tax, from a gross amount of $660.

4. There is no bank statement provided showing the deposit of those wage cheques. 

5. His S1 account statement, Exhibit ‘F’, indicates varying cash deposits, ranging from $200 to $1200.

6. Inferentially, Mr Tilley on behalf of Ms Miller says that that indicates because the cheques do not show in that account that there is another account into which Mr Miller deposits his cheque payments and/or that he is in addition paid in cash over and above the cheque payments and Mr Miller deposits the cash that he receives into his S1 account. 

7. Mr Miller has an obligation for full and frank disclosure, as does

   
   

   Ms Miller. 

8. Mr Miller currently pays child support for the parties’ child, [X], of $55 per week.  The obligation to pay that child support will cease on [date omitted] 2014 because [X] will then have his 18^th birthday. [X] is not at school, he is employed as an apprentice [omitted]. [X] has been so employed since concluding his Higher School Certificate at the end of 2013. 

9. The parties own a home at [G], worth, it seems, on their estimate as outlined in each of their sworn financial statements, approximately $580,000.  They owe by way of mortgage somewhere between $247,000 and $255,000, depending upon whose figure in the financial statement is correct.  Since the parties separated, Ms Miller has been in occupation of that home with the parties’ children but more recently with the parties’ son, [X]. 

10. She will cease to have an obligation to support [X] on his 18^th birthday, at least legally. 

11. Moral obligations to support are not relevant in respect of these proceedings. 

12. Ms Miller says that Mr Miller paid the full mortgage payments from the date of separation, which was December 2011, until June 2012, then reduced his payments to half of the mortgage some time later in 2012. It is submitted that the payment demonstrates a capacity on his behalf to pay. 

13. Having regard to the sworn financial statement filed by Ms Miller, her weekly expenses are $632 but that will reduce somewhat once [X] turns 18.  On her figures, it would reduce something in the vicinity of $30 a week, to about $600.   

14. Her only source of income at the current time is Social Security payments and Family Benefit payments.  Family Benefit payments will cease to be paid on [X] attaining the age of 18 years.  In any event, the Social Security payments that she receives are disregarded for the purposes of the determination of what, if any, spousal maintenance is payable on an urgent basis to her. 

15. I am satisfied that she has a need as demonstrated by her affidavit and her financial statement. 

16. There is no evidence in Mr Miller’s affidavit, which was filed 1 October, having been sworn on 26 September, as to what he did with the $3233 in taxation return that he had received into his account some 13 days prior to the swearing of his affidavit. 

17. That non-disclosure together with the concerns that I have in respect of whether or not he is receiving cash payments over and above his salary causes me to conclude that I should be somewhat less cautious than I might otherwise have been, in assessing his capacity to pay and assessing any quantum, if any, spousal maintenance is to be paid.

18. I accept that his financial statement was not prepared to include a figure for his weekly needs by way of food and other necessities for life.

19. It is unlikely that his needs for food and other necessities of life are greater than Ms Miller’s, they being of similar of age. 

20. No one discloses any health needs. 

21. No one discloses any other obligation to meet the needs of another person other than [X], which they both share. 

22. Leaving aside Mr Miller’s need for sustenance and other usual weekly needs, Mr Miller has an excess of income, over-expenditure of some $235 per week. 

23. Accepting, as I have, that he is likely to have the same weekly needs as Ms Miller, for food and necessities, which Ms Miller disclosed at $208 a week, that would mean that Mr Miller would have, mathematically, some $30-odd per week disposable to him which will, in May, after his child support obligation ceases increase by $55 per week for a total of $85 per week.

24. But for the reasons already outlined, I am less cautious than the mathematical calculation because of the nondisclosure. 

25. For those reasons I am satisfied Mr Miller has a capacity to pay spousal maintenance.

26. Having considered the factors under s.75(2) of the Family Law Act1975 I determine that the weekly payment of urgent spousal maintenance is to be $200 per week; first payment due 28 February, and due thereafter each subsequent Friday.

27. The amount that I calculated for the urgent spousal maintenance is calculated on a less cautious basis, but would be likely to be the maximum amount that the husband has capacity to pay.  As a consequence, he would not have the capacity to pay in addition, a sum towards the mortgage.

28. These are urgent orders and should only, therefore, be in place for as long as is necessary. 

29. The parties will be given a date for a conciliation conference. Thereafter a further directions date or review date will be fixed.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Date: 7 April 2014