Moloney and Beams

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOLONEY & BEAMS

[2013] FCCA 85

Catchwords:
FAMILY LAW – Interim application for spousal maintenance – distinction between urgent and interim applications – nature of interim hearing – meaning of adequately – relevance of section 75(2) criteria – marked disparity in income of parties – reasonableness in all the circumstances – interim or partial property settlement – considerations of justice and equity.

Legislation:
Family Law Act 1975, ss.72; 74; 75(2); 77; 79(2)

Cases cited:
C & C (1996) FLC 92-651
Chapman & Chapman (1979) FLC 90-671
Ashton & Ashton (1982) FLC 91-285
Bevan & Bevan (1995) FLC 92-600
Redman v Redman (1987) FLC 91-805
Mitchell & Mitchell (1995) FLC 92-601
Kiesinger & Padget [2008] FamCAFC 23
Brown & Brown (2007) FLC 93-316

Applicant:

MS MOLONEY

Respondent:

MR BEAMS

File Number:

ADC 994 of 2012

Judgment of:

Judge Brown

Hearing date:

10 April 2013

Date of Last Submission:

10 April 2013

Delivered at:

Adelaide

Delivered on:

19 April 2013

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Herman Bersee

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Swan Family Lawyers

ORDERS

The conciliation conference fixed for 23 May 2013 is confirmed, together with the ancillary orders relating to it.
The matter is listed for further directions, in Mt Gambier, on 20 June 2013 at 9:30am.

UNTIL FURTHER OR OTHER ORDER

The wife have the sole use and occupation of the former matrimonial home located at Property S, [M] in the State of South Australia (hereinafter referred to as “the former matrimonial home”).
The husband pay all mortgage payments to the National Australia Bank arising in respect of the former matrimonial home, as they fall due, together with all other outgoings including rates and taxes in respect of the property.
As of the date of these orders, the husband pay to the wife, by way of spousal maintenance, the sum of $500.00 to be paid on the Friday of each week commencing 19 April 2013, to a bank account, the details of which are to be nominated by the wife to the husband.
The wife’s application for partial or interim property settlement is otherwise dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT ADELAIDE

ADC 994 of 2012

MS MOLONEY

Applicant

And

MR BEAMS

Respondent

REASONS FOR JUDGMENT

Introduction

This case concerns spousal maintenance. It turns on consideration of propriety and adequacy.
The applicant in the proceedings is Ms Moloney “the wife”. She is fifty-eight years of age. By occupation, she is a [occupation omitted]. At present, she is in receipt of Workcover payments, due to a fracture to her thorasic spine, which was aggravated whilst she was employed at [omitted].
The respondent is Mr Beams “the husband”. He is sixty-two years of age. By occupation, he is a [omitted], employed at [omitted].
It is common ground that there is a significant disparity between the current income of the parties. The wife, by way of Workcover payments, receives $656.41 gross per week, which equates to a salary of approximately $34,000.00 per annum.
The husband receives a weekly income of $10,525.00 which equates to a salary of just under $550,000.00 per annum. On my calculations, the husband salary is over fifteen times that of the wife’s Workcover income.
It is not in dispute between the parties that they met in New Zealand in 1999 and married in South Africa on [date omitted] 2001. It is also indisputable that they are now divorced, with the relevant divorce order being made, in the Federal Magistrates Court, on the husband’s application alone, on 1 May 2012.
This is the end of consensus, so far as major factual issues are concerned, in respect of the parties’ marriage. The wife asserts that the date of the parties’ final separation was November of 2011 and accordingly the marriage between them was one of a decade in duration.
The husband does not agree. He asserts that the relevant date of separation was approximately four years earlier in December of 2007. This was the date specified in his application for divorce, to which the wife did not formally respond.
Accordingly, it is the husband’s position that the wife should be taken to have acquiesced to this specification of the date of separation and therefore the court should accept that the marriage between the parties was one of around six years in duration with the parties now having led separate lives for a significant period of time.
More significantly, the wife alleges that she was subjected to several episodes of serious violence, at the husband’s hand, during the marriage. She asserts that these incidents led to her sustaining significant injuries, which have subsequently impacted on her income earning capacity. These incidents can be summarised as follows:
·February 2002 – kicked by husband; punched in right eye;
·June 2002 – scalded by cup of tea thrown at her; thrown on concrete doorstop causing compression fracture of thorasic spine.
·February 2003 – kicked in left breast, which allegedly subsequently caused a rupture to a breast implant.
·May 2003 – twisting of left wrist, causing fracture of left ulna requiring surgical intervention to fix fracture.
·May 2006 – drawer closed on left hand, resulting in fracture of left little finger.
·April 2009 – altercation involving a dog, which caused the wife to fall fracturing her right middle finger.
·November 2009 – tripped by husband, causing fracture to left patella.
The fact that the wife has sustained a number of fractures, requiring medical intervention, is established by various medical reports attached to the wife’s initiating affidavit. The husband refutes the wife’s account of the factual circumstances leading to these various injuries and vehemently disputes that he has ever behaved in a violent or inappropriate manner towards her.
It is his case that the wife is an alcoholic and suffers from a serious psychological condition, which he believes is a bi-polar disorder. These conditions lead to the wife displaying episodes of extreme aggression interspersed with deep depression.
Due to the wife’s condition, he characterises the relationship between the parties as being “highly conflictual”. As a consequence of this, he asserts that it was the wife who initiated any violence between the parties and if the wife was ever injured in these episodes, it was as a result of him reasonably defending himself from attack.
Given the truncated nature of the hearing, at the interim stage, it is not possible for me to resolve any of these significant factual issues at this point. Accordingly, I am not in a position to determine definitively when the marital relationship between the parties came to an end and what was its nature prior to that time.

The applications

The wife commenced these proceedings on 19 December 2012. On a final basis, she seeks the transfer to her of the husband’s interest in what is described as the “matrimonial home” located at Property S, [M]. In addition, she seeks the award of a lump sum spousal maintenance payment and a “just and equitable” division of matrimonial property in her favour.
Significantly, so far as these reasons for judgment are concerned, on an interim or provisional basis, pending the finalisation of her ultimate application for property orders, she seeks the following orders:
·Sole use and occupation of the property located at Property S, [M];
·An injunction restraining the husband from disposing of assets pending trial;
·That the husband pay all mortgage payments and other outgoings arising in respect of Property S, [M];
·A “partial/interim property distribution” to be made in her favour in a sum of $50,000.00;
·The payment of an amount of “urgent interim spousal maintenance” in the sum of $1,200.00 per week to be backdated to the filing of her application;
·Costs.
It is to be noted that the wife’s application for interim spousal maintenance is characterised, in her application, as being “urgent” and arising pursuant to the provisions of section 77 of the Family Law Act 1975.
As a result of this characterisation, it was the husband’s original position that he would be prejudiced if the court adopted any other statutory mechanisms available for the disposal of the wife’s application, other than those provided by section 77. For reasons which I will outline in due course, I rejected this submission.
The husband responded to the wife’s application on 31 January 2013. On a final basis, he proposes the sale of the Property S, [M] property and the payment of the net proceeds, after discharge of the relevant mortgage, to the wife. In addition, he proposes that he pay the sum of $20,000.00 to the wife, by way of an adjustment of matrimonial property interests, together with a lump sum spousal maintenance award in the sum of $5,200.00.
The husband’s response is silent in respect of the wife’s various interim applications. The only interim orders, which he formally seeks, relate to discovery of financial documents arising from the sale of properties owned by the wife in New Zealand.
However, during the course of the hearing before me, on 10 April 2013, it became apparent that the husband did not oppose the wife continuing to reside in the former matrimonial home and he was willing to continue to pay the outgoings arising in respect of it, particularly the mortgage to the NAB Bank, which he said he had done, without demure, since the date on which he said the parties had finally separated.
However, the husband opposes any urgent or interim award of spousal maintenance being made in the wife’s favour and further opposes that there be any interim or partial settlement of property issues.
The wife continues to maintain her application for an interim property settlement. However, during the hearing, she did not press the application, as she concedes, in practical terms, the parties’ asset pool is modest and she will have the security of living in the Property S property, pending final hearing, given the husband’s undertaking in respect of payment of outgoing on the property.
Accordingly, the main emphasis, at this stage, has been on issues relating to the provisional financial maintenance, of the wife, in the difficult and conflicted circumstances currently existing between the parties.

Background and other issues in dispute

Both parties have been previously married. The wife’s first husband is an [occupation omitted], identified as [Mr S], in the relevant papers. The husband has four adult children, two of whom he supports financially, whilst they are studying at university.
The Property S property was purchased in October 2006 for $380,000.00. It is registered in the parties’ joint names and is subject to a mortgage of around $330,000.00. Its current estimated value is around $360,000.00.
The husband owns and occupies another property in [M], located at Property T. The husband purchased this property in December 2009 for $327,000.00. It is subject to a mortgage of around $280,000.00, which the husband services by means of a weekly payment of $500.00. It is currently estimated to be worth around $320,000.00.
The husband asserts that the mortgage payments, in respect of the Property S property, amount to $2,200.00 per month or $507.69 per week. The wife accepts that he has paid the mortgage. In addition, the husband asserts that he pays the electricity and gas accounts in respect of the property and the council rates and other outgoings.
The wife’s statement of her average weekly expenses, provided in her statement of financial circumstances, indicates that she pays $70.00 per week for gas and electricity. Her financial statement is otherwise blank about council and water rates. The husband indicates he pays $22.00 per week in respect of rates.
Both the husband and wife hold significant savings. In the husband’s case, he has a cheque account holding approximately $150,000.00. In the wife’s case, she holds a term deposit, invested with the Bank of New Zealand, in a sum of NZ$306,275.73. This equates to approximately A$230,000.00. The deposit will mature on 25 June 2013.
The evidence available to me, from both parties’ perspectives, in respect of the period between the date the husband purchased the Property T property and now, is not extensive. The husband asserts that, at one stage, the wife was living in the Property S property with [Mr S].
The husband does not contend that this arrangement is continuing at present. The parties agree that, in late 2011, the wife attended at the Property T property and was given a cheque for $3,000.00 by the husband. In addition, the husband asserts that he has paid the wife’s private health insurance, since the parties separated.
The husband has superannuation in an amount of approximately $135,000.00. The wife discloses superannuation, with

superannuation omitted], in an amount of $18,000.00.
In rough global terms, the husband estimates the parties’ pool of net assets, excluding superannuation, to total in value a sum in the vicinity of $540,000.00. At this stage, the wife does not demure from this sum.
It is however the wife’s case that she brought significant capital into the marriage, whereas the husband was essentially destitute. It is also her case that her financial future is precarious, when compared to that of the husband.
The husband’s statement of financial circumstances delineates a gross weekly income of $10,525.00. In addition, the husband has calculated his total weekly personal expenditure in an amount of $7,004.00 leaving an apparent surplus of approximately $3,500.00 per week.
The husband’s major recurrent expenses, apart from mortgage repayments, are: superannuation and life insurance - $624; credit card payments - $1,500.00; food, household supplies and alcohol - $400.00; motor vehicle expenses - $350.00; and holidays - $800.00. None of these expenses seem to be exceptional, given the husband’s level of income.
The wife concedes that she receives income, from her New Zealand term deposit, regularly. However, she does not specify its quantum. Counsel for the husband, Mr McGinn, has calculated that the mother’s term deposit is likely to generate income of approximately $11,200.00 per annum, if invested at 4.5%. This equates to a weekly sum of $215.00. Whether this is the case is conjectural.
The wife has provided two statements of her financial circumstances, which disclose slightly different financial circumstances. However, documents provided by her, in conjunction with her affidavit material, indicate that she is being paid compensation payments, by [omitted], pursuant to the provisions of the Worker’s Rehabilitation and Compensation Act, 1986 (SA).
A recent payslip indicates a gross Workcover payment of $656.41, on which $67.00 tax is levied. This is the income situation disclosed in the wife’s most recent financial statement. As previously indicated, no reference is made to any receipt of income payments.
In her financial statement, the wife discloses recurrent weekly expenditure of $696.00. Her major expense being food and household supplies - $210.00; medical expenses - $65.00; pharmaceutical expenses - $75.00; gardening - $39.00; motor vehicle - $50.00; and cat - $30.00.
In my estimation, none of the wife’s expenses can be regarded as extraordinary or extravagant. It is clear that she leads a modest and frugal life. In this context, it is the husband’s assertion that it is self apparent that the wife has no need of an award of spousal maintenance, whether urgent or otherwise, as her income supplies her modest needs. In Mr McGinn’s phraseology “there is no evidence of belt tightening.”
In this context, reliance is placed upon the date, now comparatively distant, on which the husband asserts that the parties separated. If this date is correct as asserted, the husband submits that it is axiomatic that the wife has been capable of self-support for a reasonably lengthy period of time.
In addition, the husband agrees that it is both reasonable and proper for regard to be had to the fact that he is supplying the wife’s accommodation requirements, at an expense to him in excess of $500.00 per week, in terms of considering whether it is both reasonable and proper for him to be ordered to provide any additional recurrent monies to the wife to fund her living expenses.
Finally, the husband submits that it is likely to be the case that the wife has access to the recurrent interest, on her term deposit, to deal with unforseen financial exigencies. Essentially, the husband asserts that it would be erroneous for the court to start the exercise of assessing spousal maintenance by reference to his capacity to pay it arising from the fact of the surplus of his income over expenditure.
The wife has provided recent evidence regarding her current medical condition. It is her case that she originally suffered an injury, at work, in early 2011. She returned to her employment in August/September of 2011, but her work aggravated her pre-existing spinal injury and she has been away from work since that time.
In addition, she deposes that she suffers from haemochromatosis, which requires regular fortnightly treatment to reduce the level of iron in her body. The condition has potentially serious and debilitating consequences.
In addition, the wife deposes that she has recently undergone surgery to have breast implants removed. It is also the wife’s case that she has been diagnosed with depression and is currently consulting a psychiatrist.
More recently again, around Christmas of 2012, the wife reports exacerbating her back injury, whilst feeding her cat. She is anxious that the provenance of this may have consequences for her work health status.
The wife’s general medical practitioner, Dr T continues to certify the wife as being unfit for “any work”. He believes that this is likely to remain the case in the long term. The wife herself deposes as follows:
“Since sustaining my further injury I have been almost completely immobilised and am now on prescribed analgesics such as Oxyconton, Targen in addition to Lyrica which is a nerve blocking medication to assist me to cope with pain.
I have regained my mobility to the point where I am able to walk around the house with a walking stick and have only just been able to return to sleeping in my bed without the support of the cushions that I was able to use on my couch for support.
I have been advised that surgical intervention will not assist me and that I will be permanently left unable to work in any gainful capacity which is a great concern to me as I love [occupation omitted].”[1]
[1] See wife’s affidavit filed 8 April 2013 at paragraphs 5, 6 and 7
In her statement of financial circumstances, the wife does not disclose that she is sharing her household with any other income earner. The husband deposes that he is living with his defacto partner, Ms H, who has an average weekly income of $769.00.

The legal principles applicable

The various controversies arising between the parties, regarding the nature of their relationship; when they separated; whether there should be any immediate distribution of property; and centrally what ongoing level of financial support should be provided by the husband to the wife; arise at the interim hearing stage.
Notwithstanding the moment of these issues in dispute, the resulting hearing, before me, took place in a truncated or shortened form, where the only evidence available to me was in the form of the parties’ respective written affidavits and the statements of their financial circumstances.

In C & C[2] the Full Court of the Family Court indicated that the logistical issues, arising as a result of the court having to determine an ever increasing number of contentious matters, precluded it from being able to embark on lengthy hearings at the interim stage. The court said as follows:
“This court has finite resources and a limited number of judicial officers coupled with an ever increasing work load. If it was required to embark upon lengthy examinations of interlocutory issues, such as interim custody, important though they may to the parties, this would inevitably lead to an inability to provide hearings of final determinations of custody and property within a reasonable time. In addition, other persons requiring a determination of these and similar issues would be impossibly inconvenienced.”
[2] See C & C (1996) FLC 92-651 at 82,675-6
These comments, in my view, apply with equal force to this court. Accordingly, at the interim hearing stage, for these cogent logistical reasons, there is insufficient time to allow additional oral evidence, particularly in the form of cross examination. As a consequence, it is difficult, if not impossible, for the court to resolve the very many significant issues in factual dispute, between the parties, at this stage.
Nonetheless, it is the court’s responsibility to deal with the wife’s application, according to the relevant legal principles applicable, bearing in mind the truncated nature of the hearing available and the significant factual disputes arising between the parties.
The provisions of section 77 of the Family Law Act 1975 deal with the making of spousal maintenance orders in circumstances of urgency. The section provides:
“Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.”
The essence of any application made pursuant to section 77 is that it is made under circumstances of urgency or extreme financial emergency. This follows as a result of the expression immediate need utilised in the section. As such, applications for urgent spousal maintenance are invariably made in circumstances where it is not possible for detailed affidavit and/or financial data to be provided by the parties concerned.
Sometimes the degree of emergency is so extreme that it is appropriate for an application pursuant to section 77 to be made on an ex parte basis or pursuant to an oral application only. By necessity, an order made pursuant to section 77, is ad hoc in nature and intended to remain in place for a period of relatively short duration. Such orders have been described as “stop-gap” orders.[3]
[3] See Chapman & Chapman (1979) FLC 90-671
They are intended to make financial provision for a party to a marriage to tide him or her over the period of emergency until such time as the court may make a more detailed examination of the prevailing circumstances, either on an interim or final basis. Accordingly, in such cases, because of their limited nature, the court’s discretion is wider.
As such, an application for urgent maintenance is different in quality to an application for maintenance for a limited period. The latter type of application is made pursuant to the provisions of section 74 of the Family Law Act 1975 and demands a more thorough canvassing of the applicable evidence. It is intended to be in force for a period longer in duration than an urgent order, most usually until such time as competing applications for property settlement have been determined.
In Ashton & Ashton Nygh J said as follows:
“On an application for interim maintenance, the normal procedures relating to applications for maintenance under s. 74 must be observed and an application for maintenance can only be heard after each party has had the opportunity to adduce evidence, that is to say, the normal procedures for the filing of affidavits by both parties and the filing of financial statements must be observed.”[4]
[4] See Ashton & Ashton (1982) FLC 91-285 at 77,614
Although the wife’s application was characterised as being made pursuant to section 77, in my view, neither the court nor the parties themselves approached it in the manner envisaged by section 77.
The wife’s application first came on before the court, in Mount Gambier, on 4 February 2013. No oral application was made for an immediate or ad hoc award of maintenance. Rather, on this occasion, the wife’s Mt Gambier based solicitor appeared in person before the court, whilst the husband’s Adelaide based solicitor appeared by telephone. The proceedings were consensually adjourned to Adelaide, for hearing, on 22 February 2013.
This subsequent hearing date was vacated and replaced by 10 April 2013 to accommodate the convenience of counsel retained. Accordingly, the matter has not been approached with any special degree of expedition and each party has been able to file affidavit material and comprehensive financial statements.
In these circumstances, I am satisfied that the procedure, envisaged by Nygh J, in Ashton (supra) for an interim spousal maintenance application has been followed in this case. Accordingly, it is my view that no injustice will be occasioned to the husband by the court treating the wife’s application as being one for interim spousal maintenance, pending the finalisation of the parties’ competing claims for property settlement, rather than an urgent application.
Pursuant to section 74 of the Family Law Act 1975, the court may make such order as it considers “proper” for the provision of maintenance to the wife in accordance with the provisions of Part VIII of the Act.
In particular, section 72 deals with the right of a spouse to maintenance and reads as follows:
“S.72(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).”
Given the factual basis of this case, the relevant matters referred to in sub-s.75(2) are likely to be the following:
a)the age and state of health of each of the parties;
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;
d)commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself;
e) the responsibility of either party to support another person;
g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
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.
Pursuant to s.75(3) of the Act, the court is directed to disregard any entitlement of a party to the proceedings to an income tested pension, allowance or benefit. The wife is receiving payments under the Workers’ Compensation & Rehabilitation Act of South Australia. This does not fall within the definition of income tested pension, allowance or benefit.[5]
[5] See Family Law Regulations Regulation 12A
The Full Court of the Family Court in Bevan & Bevan[6] determined that the approach to be taken in respect of applications for spousal maintenance involved a four step process as follows:
·a threshold finding under s.72;
·consideration of s.74 and s.75(2);
·no fettering principle that a pre-separation standard of living must automatically be awarded where the respondent’s means permit;
·the discretion exercised in accordance with the provisions of s.74 with “reasonableness in the circumstances” as the guiding principle.
[6] Bevan & Bevan (1995) FLC 92-600 at 81,981-2
In Redman v Redman[7] the Full Court of the Family Court considered the procedural and evidentiary requirements which attach to interim spousal maintenance proceedings. The Full Court said as follows:
“…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 section 83. …the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. …Another consequence is that on an application for interim maintenance the court conducts not as final or exhaustive a hearing as would be the case if one were hearing the matter finally. …The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of section 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under section 83.”
[7] Redman v Redman (1987) FLC 91-805 at 76,081
I concede that the hearing before me, on 10 April 2013, cannot be regarded as an extensive one. In conjunction with this hearing, I have made a number of procedural directions, with the intent of providing the parties with a forum to resolve the issues between them consensually or, if this proves impossible, to progress the matter to final hearing.
To this end, a financial mediation conference has been appointed, in Mt Gambier, on 23 May 2013. In addition, the parties have been ordered to obtain valuations of the two properties owned by them in [M] and disclose to the other relevant financial documents. Accordingly, it is clear that any award for spousal maintenance, made at this stage, is likely to be in place for a finite period of time.

a) The threshold – section 72

The husband is only legally obliged to maintain the wife financially if she herself is unable to maintain herself for an adequate reason. If this condition precedent is satisfied, she is then only entitled to be maintained by him to an adequate degree.
On the basis of the evidence available to me, I accept that the wife’s capacity to obtain appropriate gainful employment for herself is limited, due to what is a significant back injury. At present, due to her injury, she is precluded from pursuing the form of employment for which she is qualified. This situation is due to no fault or omission on her part.
The wife is however not without income – she has her Workcover payments and potentially interest from her term deposit – but her income is markedly less of the husband. An analysis of her weekly expenditure indicates no degree of excess or largesse in her living arrangements.
As such, her recurrent stream of income and its allocation to given expenses remains subject to disruption by unforseen exigencies. Essentially, at present, the wife has little margin for error, in her current financial circumstances, without recourse to capital.
In Mitchell & Mitchell[8] the Full Court said:
“… the question whether the applicant can support herself ‘adequately’ is not to be determined by reference to any fixed or absolute standard but having regard to the matters referred to in section 75(2) and more specifically the paragraphs of that subsection identified above.” (these paragraphs were sub-paragraphs (a), (b), (g), (j), (k) and (n)).
In the case, the Full Court rejected that the threshold question was to be determined by reference to a subsistence level of financial support.
[8] See Mitchell & Mitchell (1995) FLC 92-601 at 81,995
In Kiesinger & Padget[9] the Full Court said as follows:
“In our view, the concluding words of s 72(1) direct attention to each of the provisions of s 75(2) which the Court, in the exercise of the wide discretion conferred by s 74, considers relevant in determining whether or not a spouse is able to support himself or herself adequately. The reference is not merely, for example, to s 75(2)(b) which directs the court to consider the “income, property and financial resources of each of the parties…” The Court would be entitled, for example, to have regard to s 75(2)(j), which directs the Court to consider “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”.
In our view, it was well open to her Honour to consider that the stark imbalance in the capital resources of the husband and the wife after a lengthy relationship was a relevant consideration in determining that the wife was entitled to look to the husband for periodic support pending the final hearing, rather than having to deplete her investments, which represented only a minute proportion of the wealth of the family.”
[9] See Kiesinger & Padget [2008] FamCAFC 23 at [26] – [27]
In this particular matter, it seems to me that I am entitled to have regard to the marked imbalance existing in the incomes of the parties currently. As I have already noted, the husband receives approximately fifteen times more income than does the wife.
In addition, the husband has considerably more financial latitude, open to him, than does the wife. His surplus income, over expenses is, in itself, five times the wife’s approximate income. In my view, this disparity of income is germane to a consideration of what is adequate, particularly given the inclusion of the section 75(2) criteria within the actual mechanical provisions of section 72.
The husband is at the top of his profession and income earning capacity. The wife has suffered a significant physical set back and faces a difficult future, both physically and financially. As such, her standard of living is markedly lower than that of the husband.
The exact date of the parties’ final separation, which is highly contentious between the parties, is relevant to what constitutes a reasonable standard of living in all the circumstances [section 75(2)(g)].
In addition, it is a flavour of the wife’s case that the significant injuries, which she says she sustained during the marriage, at the husband’s hands, have had implications for her ongoing capacity to earn income [section 75(2)(k)].
These issues cannot be definitively determined, in the context of this interim hearing. The responsibility for the court is to do what it considers proper, given the circumstances prevailing, including the truncated nature of the hearing and the fact that any award of maintenance will be for a finite period and open to later review and possible revision.
In Brown & Brown[10] the Full Court summarised the following propositions, as emerging from the applicable authorities.
·    The word “adequately” is not to be determined according to any fixed or absolute standard.
·    The idea that “adequate” means a subsistence level has been firmly rejected.
·    Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
·    In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.
·    It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
·    However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
[10] See Brown & Brown (2007) FLC 93-316 at 81,455 [161]
In my view, it is trite to argue, given the very different financial circumstances of the parties, that merely because the wife’s modest income ostensibly discharges her limited expenses, she is maintaining her self adequately.
In my view, it is self apparent that the wife’s standard of living currently is diametrically different to that of the husband. I appreciate that the husband is not required to maintain her in luxury but it would seem to me that she is entitled to have some form of financial security, at this stage, above that provided by her current financial situation, particularly given the husband’s obvious level of financial capacity.
The wife has access to a significant capital sum, in the form of her term deposit. However, she is in her late fifties and facing an uncertain financial future. In these circumstances, in my view, it would not be proper for it to be expected of her that she should draw down on this sum, in order to provide for her recurrent financial support.

b) What is proper in all the circumstances of this case

As the Full Court remarked in Kiesinger & Padget (supra) the discretion created by section 74 is a wide one. The court’s authority is only to make an award of maintenance, which it considers proper.
In approaching considerations of propriety, I must be careful not to assume merely because the husband has the capacity to pay a significant sum of maintenance to the wife, it is both proper and appropriate that an order for spousal maintenance be paid.
In this context, counsel for the husband, Mr McGinn, points to the fact that the wife’s claim does not appear to be based on any specific calculations related to her level of need.
As such, he would categorise her claim as being an unreasonable ambit claim, particularly given the other extensive financial benefits his client is already bestowing on the wife, in the form of the mortgage and other outgoings arising from Property S.
In this context, the controversy between the parties, as to when they finally separated, looms large. The husband points to his assertion that it was over five years ago, a date which the wife did not choose to challenge in the divorce application. The husband asserts that this lack of formal challenge is significant.
As such, he would categorise this case as being markedly different from other cases which involve one high income earning spouse and another spouse with limited capacity for self support. In such cases, marital separation often precipitates an obvious and immediate financial crisis in the lowly paid household, which can be immediately and demonstrably evidenced by a series of cost cutting exercises in that household and an obvious diminution in its standard of living.
Notwithstanding her assertion that the date of separation was significantly more recent, the wife has not demonstrated any such process of financial “belt tightening”. To the contrary, her expenses fall within her axiomatically modest income, with some margin for error, if her recurrent interest payment is taken into account.
As such, the husband argues that it is not reasonable, in all the circumstances prevailing, for him to be ordered to pay the wife any further sum by way of recurrent maintenance. In support of this contention, he points to the fact that he has provided and will continue to provide the moneys necessary to secure the wife’s accommodation, which is necessarily in itself a significant form of maintenance.
The concept of propriety is not specifically defined in the Family Law Act. The word “proper” has connotations of what is suitable or correct or in conformity with social conventions. The Full Court, in Bevan spoke of “reasonableness in the circumstances” as the guiding principal or yardstick for determining what is proper. This denotes some degree of objectivity.

I must be careful not to conflate the husband’s obvious comfortable capacity to pay a significant recurrent amount of maintenance to the wife with what is reasonable. The wife is not entitled to maintenance merely because the husband can afford to pay it.
However, in my view, the obvious disparity, in income, between the two households, leads to a situation where it is reasonable that the husband provide some form of recurrent financial support to the wife, notwithstanding the dispute between them regarding the actual date of their separation and the absence of any evidence that the wife has recently had to cut her cloth more conservatively because of straitened financial circumstances arising recently or contemporaneously with the separation.
Essentially, in my view, given the very different financial circumstances of the parties, it is proper, in the sense of what is correct and in conformity with societal norms, that the husband provide some form of recurrent financial support to the wife given her straitened circumstances, when contrasted with the largesse associated with those of the husband. For reasons already delineated, these considerations are also germane to the adequacy of maintenance.
To my mind, the fact that the husband’s income is so dramatically greater than is the wife’s renders it both proper and reasonable that he provide some form of recurrent financial maintenance to her, particularly given that such an award will be for a limited period of time and will be subject to detailed review, if necessary, at the final hearing stage.
This final hearing will also provide a forum for the resolution of the various disputes between the parties regarding the nature of their marital relationship; its consequences for the wife’s health and income earning capacity; and when the marriage type relationship between them actually ceased. Against this background, the issue of spousal maintenance can be finally determined.
Bearing in mind that the husband has undertaken to continue to provide the moneys necessary to service the mortgage and other outgoings on the Property S property, which totals approximately $500.00 per week, I have come to the conclusion that a further award of maintenance, in the wife’s favour, in the sum of $500.00 per week, is a reasonable and proper one in all the circumstances of this case.
In my view, it would be neither proper nor reasonable for this award of maintenance to be backdated to the date of the wife’s application, which is 19 December 2012. I will order that the first weekly payment be calculated from today’s date and be paid to a bank account to be nominated by the wife.

Other matters

The order for the wife to continue to occupy the Property S property and for the husband to continue to pay the recurrent outgoings in respect of the property, can be made with the husband’s consent.
The wife does not seriously agitate her claim for an interim or partial property settlement. In my view, it would be neither just nor equitable to make such an order at this stage [see section 79(2)].
The wife has not advanced any specific reason as to why there should be such an interim or partial property settlement. The classical rationale for such an order is to secure legal representation; to preserve a piece of matrimonial property; or to avoid an injustice.
The wife has advanced no such submission or indeed any other reason for there being such an interim or partial property settlement. In these circumstances, I will dismiss this aspect of her interim application.
The financial mediation conference has been scheduled for 23 May 2013. I will confirm this conference date. I note that the necessary procedural orders have been made in respect of this conference.
Thereafter, the matter will be listed for further directions, in Mount Gambier, on 20 June 2013 at 9.30am, for further directions to be made and if necessary to allocate a date for the final hearing of the matter.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 19 April 2013

[2013] FCCA 85

19 April 2013

Key Legal Topics

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Family Law

Property Law

Equity & Trusts

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Injunction

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Procedural Fairness