Moffett and Moffett

[2019] FamCA 393

FAMILY COURT OF AUSTRALIA

MOFFETT & MOFFETT [2019] FamCA 393

FAMILY LAW – SPOUSAL MAINTENANCE – Interim.

Family Law Act 1975 (Cth)

APPLICANT: Ms Moffett

RESPONDENT: Mr Moffett

FILE NUMBER: SYC 6888 of 2018

DATE DELIVERED: 20 June 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 19 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Tiyce & Lawyers

COUNSEL FOR THE RESPONDENT: Ms Spain

SOLICITOR FOR THE RESPONDENT: Santo Family Lawyers

Orders

1. Pending further Order, the husband is to pay to the wife $2,600 per week by way of spousal maintenance with such payments to commence forthwith.

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 Moffett & Moffett 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 SYDNEY

FILE NUMBER: SYC 6888 of 2018

Ms Moffett

Applicant

And

Mr Moffett

Respondent

REASONS FOR JUDGMENT

1. In the matter of Moffett, this is an application by a wife to vary a current interim maintenance order, which was agreed in November 2018 at $2,000 per week to $2,600 per week, or whatever I assess otherwise as the wife’s reasonable needs. The husband opposes the application.

2. Mr Johnston of Counsel acted for the wife and Ms Spain, of Counsel, for the husband.

3. I read the following material for the wife:

   a)Application in a Case filed 24 May 2019;

   b)Affidavits of 29 October 2019 and 17 June 2019;

   c)Financial Statement of 24 May 2019;

   d)Her case outline was marked exhibit 1; and

   e)An aide memoire of discrepancies the wife asserted in the husband’s various Financial Statements he has filed was marked exhibit 2.

4. For the husband:

   a)Response filed 17 June 2019;

   b)Affidavits 22 January 2018 and 17 June 2019;

   c)Financial Statement of 17 June 2019;

   d)An aide memoire was prepared of the husband’s current expenditure position, by his Counsel, and marked exhibit 1; and

   e)Exhibit 2 was a response to a request for information from the wife’s lawyer as to the payment of his yearly bonus and what that figure was.

5. On 26 November 2018, the parties entered into consent orders dealing with a multitude of issues between them and, in particular, payment for the benefit of the wife by the husband, including private health, registration of a car, loan for the car and $2,000 per week by way of spouse maintenance. The husband earns a significant income and is the manager for D Company. He has a base salary, according to his exhibit 2, of $452,635 and, in 2018, a cash bonus of $244,131. That is all prior to tax. He also has shares which are vested each year.

6. Despite the husband always having earnt a fairly high income, the parties own no real estate. Their assets are shares, basically in the husband’s company, perhaps others, and his superannuation. The wife asserts the husband has a gambling problem. That will be a matter for a final hearing.

7. The parties have three children, X, born in 2008, Y, born in 2009 and Z, born in 2012. The children live with their mother in rented accommodation in Suburb B, for which she has a 12 month lease and pays $2,000 weekly. The children spend time with their father on the weekends and he also rents property. He has re-partnered.

8. The wife has been out of the workforce for 11 years and has been the primary parent and homemaker for the children. Consistent with the husband agreeing to pay her maintenance in November 2018, I find today that in the circumstances I have outlined, together with her care of three children of the marriage, on a primary basis, she fulfils the threshold test of a spouse unable to adequately support herself adequately on an interim basis.

9. The question for me, really, is what are her reasonable needs and the husband’s capacity to pay those needs.

10. The wife’s amended reasonable needs, conceded by Mr Johnston, due to an error in Part N of the financial statement, are $431 personally and, in Part H, her fixed expenses, also contained in her Financial Statement, of Netflix account and a few other items are $142. This is combined a total for her personal needs of $580 weekly which is extremely modest and I assess her needs at $600 per week for herself only.

11. The question for me is, can the husband pay those needs as I have assessed today, in addition to the $2,000 a week he already pays.

12. The husband’s aide memoire gives him a surplus of about $600 a week for his needs. However, that is based on his Financial Statement and most up to date Financial Statement asserts a net cash bonus of net $1,719 weekly or $89,388 per annum. Whereas, according to his exhibit 2, it was $244,000 gross, a net of $129,000 per annum or $2,480 per week, a significant increase in the disclosed income of $761 per week. I make no criticism of the husband about this, it is just how the timing and facts have fallen in this matter now.

13. Given I have found the wife has reasonable needs which she cannot meet of are $600 per week, that her current maintenance pays her accommodation for herself and the three children, on a lease for a 12 months, and that the husband has a surplus of income, being the bonus he receives weekly – when amortised is $2,480 per week, as opposed to that which he assessed it would be, I find the husband has sufficient income from his work to pay the wife’s reasonable needs in the sum of $600 per week and I order that the payment by the husband to the wife of spouse maintenance be increased to $2,600 per week, such payments to commence forthwith.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 20 June 2019.

Associate:

Date: 26 June 2019