NOLAN & NOLAN

[2012] FamCA 967

FAMILY COURT OF AUSTRALIA

NOLAN & NOLAN [2012] FamCA 967

FAMILY LAW – SPOUSAL MAINTENANCE – Application for spousal maintenance – Where wife’s claimed expenditure for children is excluded from claim for spousal maintenance: Stein & Stein (2000) FLC 93-004 – Where wife’s income exceeds her expenses – Threshold test for spousal maintenance not met – Application dismissed.

Family Law Act 1975 (Cth) s 72

Stein & Stein (2000) FLC 93-004

APPLICANT: Ms Nolan

RESPONDENT: Mr Nolan

FILE NUMBER: SYC 238 of 2012

DATE DELIVERED: 5 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 5 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Connor

SOLICITOR FOR THE APPLICANT: Argyle Lawyers Pty Ltd

SOLICITOR FOR THE RESPONDENT: In Person

Orders

IT IS ORDERED

1. That the husband pay and as when it falls due the interest on the NAB Business Loan, loan number …666.

2. That the husband pay as and when it falls due the interest on the O Loans number …259.

3. That the husband is restrained from drawing any money against his directors loan account other than monies which are owed to him by the company C Pty Limited.

4. That the application by the wife for spousal maintenance is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nolan & Nolan 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 SYDNEY

FILE NUMBER: SYC 238 of 2012

Ms Nolan

Applicant

And

Mr Nolan

Respondent

REASONS FOR JUDGMENT

1. The application before the court is an application by the wife, Ms Nolan, for spousal maintenance arising out of her marriage to the husband, Mr Nolan.  Each of the parties is employed.  The children of the marriage live with the wife.  The evidence before me in relation to the income of the parties is that the wife, who is employed on a part-time basis, earns $3385 per week from her employment.  She also receives money by way of child support, which for the purpose of this application, I propose to disregard. 

2. The evidence in relation to the husband’s income is that he is the beneficial owner of the shares in a company which has, on his evidence, a projected adjusted profit of $590,000 per annum. There is therefore a considerable discrepancy between the income of the wife and the income which is available to the husband should he choose to draw it. 

3. The first matter which I need to consider is whether or not the wife is able to meet the test prescribed in s 72 of the Family Law Act1975 (Cth).  That is, whether she is able to support herself from the income which she has available.  As I have said, that income is $3385 per week.  The wife’s expenses which she claims on a fixed basis are $2034 per week and those expenses are not challenged by the husband. 

4. The wife’s discretionary expenses are $1201 per week and those expenses are not challenged by the husband.  I pause here to note that the wife also seeks to claim the expenses of the children of $833 per week.  But having regard to the judgment of the Full Court in Stein & Stein (2000) FLC 93-004, I do not propose to take into account those expenses. Therefore, the wife has income of $3385 a week and total expenses of $3235 a week and she does not meet the threshold test in relation to spousal maintenance.

5. In the application  the wife seeks an order that the husband should pay the interest, as and when it falls due, in relation to the loan which is styled the “Business Loan, loan number …” with the National Australia Bank. The repayments of that loan are approximately $1580 per week. 

6. She also asks that he pay, as and when it falls due, the interest on the loan to O Loans, the interest payments being $6500 per month.  The husband does not object to an order that he pay those two amounts. Those orders will be made.

7. The interest on the home loan, which is the only matter in contention, is claimed by the wife to be paid by her in the sum of $646 per week which equates to $2799 a month.  The actual amount required to be paid by way of interest is $2400 a month.  Therefore, when I take into account the expenses which the wife pays, even accepting the fact that she pays more than she is required to pay in relation to the home loan, her expenses nevertheless are less than her income. 

8. I find, therefore, that the wife does not meet the threshold test and I will dismiss the application for maintenance. 

9. The next matter which was raised was the matter of the husband’s drawing from his loan account with the company, C Pty Ltd .  The husband does not object to an order being made restraining him from drawing moneys in excess of those which are actually owed to him by the company and, by consent, I propose to make that order.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 5 November 2012.

Associate: 

Date:  21 November 2012