MURRAY & MURRAY

[2015] FamCA 209

FAMILY COURT OF AUSTRALIA

MURRAY & MURRAY [2015] FamCA 209

FAMILY LAW – INTERIM PROPERTY – Where the wife seeks the husband pay to her the sum of $50,000 to meet costs of litigation – Where the husband asserts he does not have the current ability to pay – Where the wife has a substantially lower income than the husband – Where the assets are mainly in the husband’s name – Where the husband has not attempted to consolidate his debt to meet the reasonable needs of his children and the wife – Where the husband has continued to spend without constraint – Order that the husband pay the amount sought by the wife by way of interim property settlement.

FAMILY LAW – CHILD SUPPORT – Where the wife seeks the current assessment be varied – Where the wife seeks the husband meet the needs of the children’s private health insurance and associated costs – Where there are grounds for departure – Where the wife has established her needs for the children which were not challenged by the husband – Where the wife has a small income compared to the husband – Order that the wife pay 5 per cent of the cost of supporting each child and the husband pay 95 per cent of that cost.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks payment of weekly spousal maintenance – Where the wife has the primary care of the young children – Where the husband asserts the wife is not properly exercising her earning capacity – Where the threshold test under s 72 of the Act has been met – Where the wife has established a need and that need is found to be a reasonable weekly amount – Where the husband argues he does not have reasonable capacity to meet the wife’s need – Where that argument is rejected – It is found that the husband has the capacity to make payments sought by the wife – Order sought by the wife made.

Child Support Assessment Act 1989 (Cth)

Family Law Act 1975 (Cth)

Bevan and Bevan (1995) FLC 92-600
Gyselman & Gyselman (1992) FLC 92-279
Oates and Crest (2008) FLC 93-365
Redman and Redman (1987) FLC 91-805
Williamson and Williamson (1978) FLC 90-505

APPLICANT: Ms Murray

RESPONDENT: Mr Murray

FILE NUMBER: SYC 5665 of 2014

DATE DELIVERED: 25 March 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 18 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE APPLICANT: Pearson Emerson Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: McLachlan Thorpe Partners

Orders

Pending further order:

1. Within 7 days of the date of these orders, the husband pay to the wife or as she directs in writing, the sum of $50,000 by way of interim property settlement.

2. The wife have exclusive occupation of the property at B Street, Suburb C (“the Suburb C property”).

3. The husband pay the monthly mortgage payments on the Suburb C property and any arrears of regular payments on the mortgage.

4. The husband pay or cause to be paid to the wife or as she directs in writing, the sum of $1,970 per week by way of spousal maintenance, with the first payment to be made within 7 days from the date of the making of these orders.

5. The husband may, if he wishes to do so and the wife agrees, ensure that the wife continues to be paid up to $1,000 per month (net of tax) by D Pty Ltd for work performed by her on behalf of the company and while such payments are made, the husband may reduce the spouse maintenance, required by order 4 of these orders, by the net amount paid to the wife by D Pty Ltd.

6. The husband shall pay:

   6.1.All rates and taxes and home and contents insurance in respect of the Suburb C property; and

   6.2.Motor vehicle registration and insurance for the European motor vehicle used by the wife.

7. The husband shall pay the wife’s private health insurance premiums in the fund of which the wife is presently a member or such other fund as the parties agree in writing, at the present scale including cover for private hospital, optical, physiotherapy, counselling and dental expenses.

8. By way of departure from the child support assessment issued by the Child Support Agency on 8 October 2014 in case number 609 087 612 808 and any subsequent assessments in respect of the children, the husband pay or cause to be paid:

   8.1.To the wife or as the wife may from time to time direct in writing, child support for the children in the sum of $1,680 per calendar month per child, the first payment to be made by the 7^th day of the month after the date of the making of these orders, and payments to be made by the 7^th day of each month thereafter, with the final payment in respect of each of the children to be made upon the happening of a child support terminating event in relation to such child;

   8.2.All of the children’s private health insurance premiums in the fund of which the children are presently members or such other fund as the parties agree in writing (“the Fund”) at the present scale including cover for private hospital, optical, physiotherapy, counselling, dental and orthodontic expenses in respect of the children.

   8.3.All private hospital, optical, physiotherapy, counselling, dental and orthodontic expenses in respect of the children as are not able to be recovered from the Fund, such reimbursement to be made within 14 days of the date on which the wife provides the husband with receipts or invoices for such expenses;

   8.4.All education expenses at the school each child presently attends or such other school or schools as the parties agree upon in writing. Such expenses shall mean and include all tuition fees, private tutoring fees, incidental sporting costs, excursion fees and holiday camp expenses, school books, school uniforms and extra-curricular activities (musical and sporting).

9. The amount payable by the husband pursuant to order 8.1 is to be varied on the review date each year from the date of the making of these orders to such sum as shall be determined by multiplying the amount being paid immediately prior to the review date by the fraction A/B where “B” is the CPI in respect of the June quarter 12 months prior to the review date and “A” is the CPI in respect of the June quarter ending on the day immediately preceding the review date.

10. The child support payable by the husband pursuant to order 8 is to be credited against the husband’s liability under any administrative assessment of child support payable by the husband to the wife in respect of the children for the period from the date of the making of these orders until the happening of a child support terminating event in relation to each of the children.

11. The child support payable by the husband pursuant to order 8 is to count for 100 per cent of the annual rate of child support payable by the husband under any administrative assessment of child support payable by the husband to the wife in respect of the child for the period from the date of the making of these orders until the happening of child support terminating event in relation to each of the children.

12. By consent, the husband continue to meet all regular payments associated with the Commonwealth Bank relating to the E Pty Ltd investment and the Citibank personal loan as and when they fall due.

13. The interim orders sought in the husband’s Response filed 23 December 2014 be dismissed.

14. The hearing of the parties’ application for property settlement be expedited, to be relisted before me by a Registrar after valuations of the husband’s business interests have been completed, the parties have concluded a conciliation conference, or the Registrar otherwise believes the matter should be relisted before me for further directions.

15. Liberty granted to the wife to relist the matter on 21 days’ notice before me for enforcement of any order not complied with by the husband.

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

FAMILY COURT OF AUSTRALIA AT 2

FILE NUMBER: SYC 5665 of 2014

Ms Murray

Applicant

And

Mr Murray

Respondent

REASONS FOR JUDGMENT

1. Ms Murray (“the wife”) makes an interim application for spousal maintenance and variation of the child support assessment together with an order for partial property settlement.

2. Mr Murray (“the husband”) applies for interim orders requiring that the home in which the wife and the children are currently residing be sold and that after the payment of various outstanding debts, the balance be divided as to 50 per cent to the wife and the remaining to be put into an account in trust for the parties.

3. The husband asserts at [43] of his affidavit that he has made enquiries as to rented accommodation in Suburb C, Suburb F, Suburb G and surrounding suburbs. He proposes that if the former matrimonial home is sold, the wife and children could rent a three bedroom townhouse or apartment for $1,000 per week which is the same amount he is now paying for his accommodation.

4. The husband agrees to an order to continue to meet all regular payments associated with the Commonwealth Bank relating to the E Pty Ltd investment and the Citibank personal loan as and when they fall due.

5. The husband is currently aged 42 years of age and is a chartered accountant.

6. The wife is presently 40 years of age. She has qualifications as an accountant but has not been in full time employment as an accountant since the birth of the second child. The wife is currently studying a design course and intends to couple that with her accountancy experience once she obtains that qualification. That qualification will be available to her in 2017.

7. The parties commenced cohabitation in November 1999. They married in 2004, had their first child in 2005 and their second child in 2007. They separated in November 2012.

8. The parties met when they were both employees of the same business. The husband was a manager and the wife his junior. The husband obtained partnership in the business in 2002 at which time the wife took up a position with another employer. In 2003 the husband became a salary partner of a partnership on the merger of his previous partnership with another business. The husband’s salary increased in 2004. In 2006 he was allocated a 10 per cent equity interest. In 2007 he was appointed a 50 per cent partner, in 2008 a 75 per cent partner, and in 2009 he was appointed 100 per cent partner.

9. In June 2013 the husband left the partnership he was in. In the period between June 2013 and October 2013, the husband did some work in the service industry. The husband then became a partner in H Pty Ltd. As a partner, he is a director and shareholder of the operating and holding companies. The husband presently receives income through a number of entities (both companies and trusts). The husband deposes in his most recent financial statement that his current overall gross income is in the sum of $603,980 per annum (or $11,615 per week).

10. Although the wife recommenced employment one day a week late in 2005 when the first child was 6 months old, she stopped working in early 2006 and after that time has only done limited work for entities in which the husband has had an interest. She currently receives a small salary for working part time for one of the husband’s entities, D Pty Ltd. She has been working for that company for about two years and receives $233 per week. Otherwise, the wife’s income is made up of government benefits and child support payments.

11. After the separation, the wife and children remained in the former matrimonial home at Suburb C. The husband moved into rented accommodation and currently rents premises at $1,000 per week.

12. From the date of the separation up until October 2014, the parties operated their finances much as they had during the marriage, with both having unfettered control of a range of credit cards.

13. In June 2013 a property owned by the parties in Brisbane Street was sold and the net proceeds of the sale, in the approximate sum of $193,000, were used to clear the parties’ credit card debts. Those debts have now increased again to an amount of approximately $181,000.

14. There were difficulties between the parties in September 2014 following an incident at the former matrimonial home that resulted in a provisional apprehended domestic violence order being made on 20 October 2014, with the husband as defendant and the wife and children as the protected persons.

15. In September/October 2014, the husband cut off the wife’s access to credit card facilities that were associated with himself as the major card holder, which in effect cut off the wife’s ability to use credit cards.

16. The wife also asserts that the husband told her that he was no longer going to be paying her $233 per week for services which she currently provides to D Pty Ltd. However, the wife has continued doing the work for that company and has continued to receive the weekly amount.

17. Up until the date of hearing, the husband had not filed tax returns for the financial years ending June 2012, June 2013, and June 2014. The husband represented to the court that he intended to do so and draft tax returns for those years were tendered by him and are Exhibit 4. The husband estimates that the tax liability that will arise from him filing those returns will be in the sum of $148,000.

18. As the husband has not filed tax returns and because of other circumstances, the details of which are not particularly relevant, the wife as at the date of her swearing her financial statement on 13 March 2015, has been only receiving child support at a rate of $277.83 per month (or $65 per week for the two children).

19. On the first day of the interim hearing, counsel for the husband told the court that “the reason why [the child support] is at the level it is, is because of the non-lodgement of income returns and that’s about to change” and “there is no need for the court to do anything about it because the lodgement of returns will advise the agency what my client’s actual income is and they can apply the formula”. Because of the pressures in the duty list on the first day, the hearing was not concluded. On the subsequent day draft tax returns were provided. It was clear that the husband’s last tax return showed a loss for the year. It therefore follows that if that tax return forms the basis of any assessment, no just and equitable outcome will be forthcoming based on any assessment relying solely on that tax return. In those circumstances, notwithstanding it was not part of the wife’s initial interim application, I accepted the filing of an application pursuant to s 116 Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) to attempt to deal with payments the husband needs to make to the wife for both herself and the children on a holistic basis.

THE WIFE’S APPLICATION FOR INTERIM PROPERTY ORDERS

1. The wife seeks an order that the husband pay to her the sum of $50,000 to meet costs associated with this litigation. It is an order that will be made by way of interim property settlement. The further Amended Application filed by the wife in court on 18 March 2015 asks that “the categorisation of this payment be determined by the trial judge at the time of the final hearing or otherwise agreed by the parties in writing”. I will be making any order by way of interim property settlement. It is of course always a matter for the trial judge at the final hearing to consider the context in which that order is being made and treat it or take it into account in the way the trial judge believes is appropriate at the final hearing.

2. The circumstances in which the wife seeks the payment is that she has no available funds to conduct the litigation with the husband.

3. A central outstanding issue between the parties is the current value of the husband’s interests in his current business entities. In his financial statement filed 23 December 2014, the husband assesses that his investment in his ownership of H Pty Ltd is $320,000 and his interests in the businesses operated by I Pty Ltd (J Pty Ltd; K Pty Ltd and D Pty Ltd), is in the sum of $725,000.

4. Directions have been made by a Registrar for the parties to agree on a single expert to value these interests.

5. In the event that an order is made of the nature sought by the wife, she has indicated that she would be prepared for both parties to equally share the costs of the valuation.

6. In a statement of assets and liabilities provided by the husband to the NAB Bank dated 1 November 2011 (Exhibit 1), the husband estimated in 2011 that shares in private companies had a value of $3,500,000. J Pty Ltd had a value of $312,000.

7. It is the husband’s case that he does not have the current ability to pay to the wife an amount of $50,000.

RELEVANT LEGAL PRINCIPLES

1. The Full Court in Strahan (2011) FLC 93-466 revisited the principles applicable to applications for interim property orders. An interim property decision involves two steps.

2. First, it must be established that s 80(1)(h) Family Law Act 1975 (Cth) (“the Act”) was enlivened to allow an interim property settlement under s 79 of the Act. The test for this was not confined to ‘compelling circumstances’. The Court in Strahan revisited the earlier well known statement made in Harris (1993) FLC 92-469 where the Full Court had said:

   The exercise of the power should be confined to cases where the circumstances presented at that time are compelling. As a generality, the interests of the parties and the Court are better served by there being one final hearing of s.79 proceedings. However, circumstances may arise before there can be a final hearing which dictate that some part of the property of the parties should be the subject of orders. A common example is where both parties agree to the disposal of some assets pending the trial. However, we do not consider that it is confined to cases where the parties consent. Urgent situations may arise where it is necessary to exercise this power if injustice is to be avoided. Examples include cases where it is necessary to do so to avoid an asset being eroded or lost in the intervening period, and cases (beyond the maintenance power) where an order in favour of one party is necessary to preserve or obtain a home for or is otherwise necessary for the welfare of the children.

3. In Strahan, the Full Court said:

   [132] In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

   [139] We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.

4. As explained by the Full Court, s 80(1)(h) of the Act is a wide enabling provision for interim property decisions, and there is no reason to limit it, by requiring a finding of ‘compelling circumstances’. All that is required before the power to make an interim property order is exercised, is an assessment of whether it would be “appropriate” to make an interim order, with the “over arching consideration” being the interests of justice. There may need to be evidence of the likely cost of litigation, but only if that is the reason or part of the reason that is propounded as to why it is appropriate that the order be made.

1. As was discussed in Harris and confirmed in Strahan, the second step in making an interim property order is to have regard to the usual matters in a s 79 order (ss 79(2) and 79(4) of the Act). A detailed inquiry is not required, but there must be some assessment of s 79 factors. Given it is an imprecise exercise, the interim property order has to be “conservative” so that the final outcome of property settlement will not be compromised by the interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.

2. Being a preliminary property order, the recipient may choose to spend that money however they wish.

3. In Harris, the Full Court said:

   As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.

4. In Strahan, the Full Court said in exercising the wide and unfettered discretion conferred by s 79 and s 80(1)(h) of the Act:

   Regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

5. A corollary of these statements made by the Full Court in Harris and Strahan is the proposition that as a generality, the interests of the parties and the court are better served by there being as few interim property applications under s 79 as is possible.

THE CURRENT FINANCIAL POSITION OF THE PARTIES

1. The husband asserts that his current weekly income is $11,615 per week. He asserts that his expenses are $18,347 per week.

2. He says that the property owned by him is valued at $3,915,000 and that the liabilities that he has are $2,561,000. The husband also has superannuation of $100,000. Accordingly, on his own estimate, the parties have about $1.4 million worth of assets which are entirely in the husband’s hands (the Suburb C property is registered in the sole name of the husband).

3. The wife’s assets consist of household contents, jewellery and personal items. She values her property at $26,000 with debts of $37,500. The debts owed by the wife relate to Fee-Help in respect of her current course of study, and monies advanced by her father.

4. Counsel for the husband asserts that the husband has a $7,000 shortfall of income over expenses per month which he calculates on the following basis:

   Husband’s income per month       $50,300

   Less tax  24,000

   Net income per month                   $26,000

5. The husband says he is currently making the following regular repayments:

National Australia Bank	$15,000
SS Bank/AG Bank	$4,000
E Pty Ltd Investment	4,000
Credit card repayments	10,000
TOTAL	$33,000
Shortfall	$7,000

1. The husband asserted through his counsel that he did not have any ability to restructure his debt so that regular monthly repayments were at a lower level. As a result of comments that I made, the husband was able, during a short break in the proceedings on the second morning of the hearing, to ring his personal contact at his bank and get a statement which became part of Exhibit 2 which is in the following terms:

   Further to my discussion with you and the email below, I confirm that a total present borrowings of approx. $1.7905M are existing LVR position is at 85.26% against the mortgage at [Suburb C]. Based on this present gearing ratio, we are not in a position to provide any additional borrowing to you and we cannot refinance your existing home loans to an interest only basis.

2. I put very limited weight on that document given the circumstances of its creation and the premise of the statement made. An 85 per cent gearing ratio on the Suburb C property would mean that the bank was assessing the Suburb C property had a value of $2,100,046.92. The parties agree for the purposes of the proceedings, that the Suburb C property has a value of at least $2.5 million. Whilst the husband’s current bank may be reluctant to consider an interest only loan, the husband has made no attempt to holistically restructure his debt with any other financial institution. The husband has in fact been able to negotiate on a short term basis an interest only arrangement in relation to the loan with SS Bank/AG Bank so that for the next three months, the husband will pay $4,000 less per month towards that loan.

3. By way of demonstration of the difficulty with the husband’s argument about a $7,000 per week shortfall, the husband asserts that in relation to credit card debt of $180,000, he needs in an annual period to reduce that debt by $120,000. He chooses to pay this rather than attempting to refinance that debt over a longer period, perhaps on an interest only basis.

4. The fact is that the husband, who I infer is a man with considerable experience in financial matters, has not attempted to do the most basic of things, namely to attempt to consolidate his debt so that regular weekly or monthly repayments are at a level that will enable him to continue to service the reasonable needs of his children and his former wife.

5. That conclusion is also arrived at in circumstances where, after the husband shut down the wife’s ability to use credit cards, he himself has spent in a pattern consistent with previous spending, seemingly without any constraint.

6. As I earlier mentioned, the parties’ credit card debt was totally discharged as at June 2013. That debt has increased since that time to an amount of $180,000 at the date of interim hearing. The husband says that that is not all his doing and that the wife has also not been frugal in her spending patterns prior to him cutting off her access to credit cards. I am unable to accurately assess what weight I would place on that assertion.

7. I allowed some limited cross examination of the husband, given his counsel did not have instructions to accept the accuracy of summaries of the husband’s credit card statements that had been prepared by the wife’s lawyers. It is clear from the primary documents and oral evidence of the husband that the husband withdrew significant amounts of money on the one day from the same location. For example, from his Commonwealth Bank Complete Access Account, on 17 December 2014 the husband drew cash advances at the Star Casino for $400, $500 and $740. On the next day he withdrew from the BF Hotel, three cash advances each of $400. On 28 December 2014 the husband took three cash advances from the L Hotel of $300, $400 and $250.

8. In oral evidence, the husband confirmed that on 24 October 2014 he withdrew cash advances at M Town of about $3,300 on the one day. He said $800 of that money was for gambling and the remainder for accommodation and expenses including a present in respect of a wedding that he was attending.

9. The documents that have been tendered indicate that the husband has been involved in significant expenditure on gambling activities and adult entertainment. I have not been able to assess whether the husband lost on gambling activities, but this evidence does not go to waste but rather the husband’s ability to access cash flow for these activities.

10. In his financial statement in fact, the husband deposes that he has expenditure on his own entertainment/hobbies and holidays in a sum of $900 per week.

11. So far as I can see and within the confines of an interim hearing, there is no evidence that the husband in recent times has attempted to change any regular pattern that he previously had in respect of the use of credit cards.

12. I do not accept the husband’s argument that he does not have the capacity to organise his finances so that he can pay to the wife the sum of $50,000.

13. Accordingly, I will order that the husband pay that amount to the wife. That amount will be used and fully expended by the wife in relation to costs associated with this litigation and I consequently will not be taking that amount into account when dealing with issues in respect of child support and spousal maintenance.

CHILD SUPPORT

1. There are two children of the marriage. N is currently aged nine years old and O is aged seven years old.

2. On 8 October 2014 the Child Support Registrar accepted an application for administrative assessment for child support and issued an assessment for the period 10 September 2014 to 9 December 2015. On 16 December 2014 a further child support assessment was issued for 16 December 2014 to 9 December 2015.

3. The Court may make an order for departure from an administrative assessment of child support in the special circumstances of the case if the liable parent or carer entitled to child support is a party to an application pending in the Court and the Court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the Court to consider whether orders should be made in relation to the child based on the special circumstances of the case (s 116(1)(b) Assessment Act). I am satisfied that it would be in the interests of both parties for the court to consider whether a departure order should be made.

4. In Gyselman & Gyselman (1992) FLC 92-279 the Full Court identified that a trial judge must follow the clearly established three‑step process outlined in s 117 of the Assessment Act – that is, assess whether in the special circumstances of the case a ground of departure has been established; assess whether it is “just and equitable” to make the proposed order; and assess whether it is “otherwise proper” to make the order. The Full Court also considered what constituted “special circumstances”, stating:

   a)Whilst it is not possible to define with precision the meaning of [special circumstances], as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary.

5. The wife seeks that the current assessment be varied so that the child support amount for each child each week is in the sum of $816, or $3,536 in total per calendar month ($1,768 per calendar month per child). She seeks that that amount be the subject of a CPI adjustment annually. In addition, she asks that the husband attend to the payment of all the children’s private health insurance premiums in the fund of which the children are presently members or such other fund as the parties may agree. At present, that fund includes cover for private hospital, optical, physiotherapy, counselling, dental and orthodontic expenses in relation to the children. The wife also asks that the husband pay all hospital, optical, physiotherapy, counselling, dental and orthopaedic expenses in respect of the children that are not covered by the fund and payment of the children’s educational expenses including variously described extra-curricular expenses.

6. I accept in this case there are grounds for departure from the administrative assessment. The primary ground is that in the special circumstances of this case, the current administrative assessment will result in an unjust and inequitable determination of the level of financial support to be provided by the husband for the children because of his income, earning capacity, property and financial resources. There are, however, also special circumstances of this case relating to the cost of maintaining the children because of the high cost involved in the children being cared for, educated or trained in the manner that was expected by their parents. N currently attends a private school in Suburb C and O attends a private school in Suburb P.

JUST AND EQUITABLE

1. The wife is in receipt of a single parent pension. I have regard to the income, property and financial resources she has identified in her financial statement sworn 13 March 2015.

2. The husband points to the support he is already providing the children by way of payment of non-periodic amounts. He indicates that he is paying $400 per week in relation to their educational expenses including fees and levies, and $155 per week towards medical, dental and optical but not including health insurance premiums. The husband also indicates that he is paying $300 per week for clothing, shoes, children’s activities and child minding.

3. The wife in her financial statement sets out her needs for the children. The husband did not challenge her assessment that she spends $816 per week in supporting the children.

4. The wife has minor income when compared with the husband’s income. She should make some contribution towards the cost of supporting the children. I assess that contribution however to be 5 per cent. Accordingly, the wife should pay $88 towards the cost of supporting each child per month and the husband should pay $1,680 per month for each child.

SPOUSAL MAINTENANCE

1. Section 72 of the Act requires a party to a marriage to maintain the other party, to the extent that they are reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately because of certain reasons and having regard to factors set out in s 75(2) of the Act. If the applicant establishes a need and it is shown that the respondent has a capacity to pay, then the court may make such order as it considers proper for the provision of maintenance (s 74 of the Act).

2. In interim proceedings, the Full Court in Redman and Redman (1987) FLC 91-805 endorsed a statement made by Fogarty J in Williamson and Williamson (1978) FLC 90-505 as follows:

   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.

3. So, upon an application for interim maintenance, an approach can be taken with a broader brush.

4. Any proposed interim property order must be taken into account when interim spousal maintenance is considered (see Bevan and Bevan (1995) FLC 92-600 and Oates and Crest (2008) FLC 93-365; 216 FLR 469).

5. The husband asserts that the wife has failed to establish on her evidence that she meets the threshold test contained in s 72 of the Act. In relation to that submission, the first thing to observe is that the wife currently has the primary care and control of children who are still young. She has found herself in that position as a result of the respective roles the parties took as a result of arrangements that the parties made during the marriage, which the parties have maintained at least up until October 2014 when the husband sent to the wife a not too subtle message that he was no longer prepared to support her. The husband asserts that from at least that point in time the wife should have known that it would be his submission that she was not properly exercising her earning capacity.

6. The threshold test under s 72 of the Act can of course be met by “any other adequate reason having regard to all relevant matters referred to in s 75(2)”. When turning to those considerations, I have regard to the income, property and financial resources of each of the parties, the earning capacity of each of the parties, the wife having the care and control of the children, the commitments of each of the parties, the fact that the wife is undertaking a course of education, the duration of the marriage and the standard of living enjoyed by the parties during the marriage. At least at an interim level, I am not prepared to accept the husband’s assertion that the wife should immediately abandon her current course of study and exercise her previous qualifications to increase her level of income. Counsel for the husband inferred that some of the wife’s credit card expenditure was excessive. For example, he highlighted the amount of money the wife spends at the hairdresser monthly. But when the husband’s claim for entertainment/hobbies and holidays is $900 each week compared to the wife’s claim of $275 per week, it is difficult for the husband to argue that the wife’s claims are excessive

7. As set out above, the wife currently receives a small salary for working part time for one of the husband’s entities. Otherwise, the wife’s income is made up of government benefits and child support payments.

8. I find that given the lifestyle enjoyed by the parties, the amount claimed by the wife in the sum of $1,970 is at least on an interim basis, a reasonable weekly amount. I find that she has established on her uncontested evidence that she has a need of $1,970 per week.

9. The husband argues that he does not have a reasonable capacity to meet the wife’s needs.

10. I have already dealt with the husband’s central argument, namely, that his current level of commitment to repayment and repatriation of debt is such that there is a shortfall between his income and the amount needed to pay debt. I have fundamentally rejected that argument. The husband has not seriously attempted to consolidate and refinance his level of debt nor has he demonstrated any constraint in relation to his own periodic expenditure.

11. Accordingly, I find that the husband has the capacity to make the payments sought by the wife by way of interim spousal maintenance and I will make an order as sought by the wife. The amount will be reduced by the amount of any net income she receives from D Pty Ltd.

THE FUTURE OF THE MATTER

1. The husband asserted that the financial affairs of the parties are built on a “house of cards” and the sale of the Suburb C property is inevitable. Whether or not that is so will probably depend to some extent on what the husband’s business interests are worth and whether or not it would be just and equitable to make a final property settlement order that would see the wife retain the Suburb C property. If the matter is left to be dealt with in the ordinary course, I fear that there could be a serious erosion of the interests of both the parties. I form the view that it is probably best if this matter was dealt with expeditiously on a final basis as soon as the parties were in a position to put before the court the evidence that they wished in respect of the valuation of all the assets.

2. Accordingly, of my own motion, I will make an order expediting the matter into my own docket.

3. Any application for enforcement of the orders that I have made should also be relisted before myself.

I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 25 March 2015

Associate:

Date:  25.3.2015