O and O
[2001] FMCAfam 235
•2 November 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O & O | [2001] FMCA fam 235 |
| FAMILY LAW – interim spouse maintenance – reasonable standard of living – threshold finding under section 72. |
Bevan and Bevan (1995) FLC ¶92-600
| Applicant: | M O |
| Respondent: | G F O |
| File No: | ZH 15 of 2001 |
| Delivered on: | 2 November 2001 |
| Delivered at: | Devonport |
| Hearing Date: | 30 October 2001 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. B. Trafford |
| Solicitors for the Applicant: | McGrath & Co. |
| Counsel for the Respondent: | Mr. I. Guest |
| Solicitors for the Respondent: | Ian Guest & Associates |
ORDERS
That until further order the Respondent, G F O do pay to the Applicant M O the sum of $250.00 per week by way of spousal maintenance.
That until further order and by way of further spousal maintenance the Respondent, G F O do pay all rates and taxes as they fall due in relation to the residential property situate at and known as 11 F Street, B in Tasmania.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DEVONPORT |
ZH15 of 2001
| M O |
Applicant
And
| G F O |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is M O. The respondent is G F O. They were married in 1969 and separated on 5 January 2001. For the purpose of this judgment, I shall refer to them as the "wife" and the "husband".
The wife’s counsel indicated that the wife is seeking orders;
a)that give her exclusive use of the former matrimonial home;
b)that the husband pay interim spouse maintenance to her in the sum of $250 per week;
c)that the husband pay all rates and taxes in relation to the former matrimonial home; and
d)that each party pay his or her own costs.
When this matter came on for hearing on 30 October 2001, there initially appeared to be general agreement between the parties’ counsel that could result in consent orders being made. However, that was not to be and the matter proceeded to a hearing. The wife was cross-examined on her affidavit and financial statement. I am satisfied from the wife's evidence that she has no real qualifications, which combined with her age and state of health prevents her from obtaining employment. It follows that she satisfies the threshold test for maintenance for the purposes of section 72 of the Family Law Act.
During cross-examination, the husband's counsel had the wife agree that her living expenses comprised $60.00 per week for food, $25.00 per week for telephone, $15.00 per week for petrol, $10.00 per week for clothing and shoes, $5.00 for entertainment, $20.00 per week for hairdressing, $3.50per week for medicine and $10.00 per week for make-up. The total of those is $148.50 per week. However, I find that the husband, through his counsel, is being somewhat parsimonious. Those expenses are extremely modest and they provide nothing for household supplies, holidays, repairs to furnishings or appliances, dry cleaning, gifts or books and periodicals.
If I am to order interim maintenance, it is clear that I must make an order that is proper and reasonable. It is also clear that the maintenance provisions of the Act do not require a person in need of maintenance to live on the bread line. Subsection 75(2) provides, inter alia, that I should have regard to a standard of living that is reasonable. Consequently, I am of the view of $200 per week is a more reasonable figure for the expenses that I have mentioned so far.
It is clear from subsection 75(3) that I must “disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit”. Consequently, the wife has no income for the purposes of these proceedings that can be used to meet her needs.
After the wife gave her evidence, counsel for the husband indicated that the husband would not be relying upon any documents or giving any evidence. He conceded that the wife had established a need for maintenance, and that the husband has the income to meet her reasonable needs. In addition, the husband’s counsel indicated that the husband is prepared to continue paying the rates and taxes on the former matrimonial home occupied by the wife, her motor vehicle registration, maintenance and insurance, and her electricity costs.
Because the husband did not rely upon any documents or give any evidence, I do not have any reasonable evidence of the husband’s actual capacity to pay maintenance. While I am sure that his capacity to pay is not unlimited, the evidence that I have is that the husband is currently paying the wife $250.00 per week, in addition to paying the rates and taxes on the former matrimonial home occupied by the wife, her motor vehicle registration, maintenance and insurance, and her electricity costs. I also accept the wife’s evidence that the husband recently threatened to stop making payments to her. However, I can only assume that the husband has a capacity to continue paying at that level.
In Bevan and Bevan (1995) FLC ¶92-600, the Full Court of the Family Court said:
“Taken together then, we would state the law as being that an award of spousal maintenance requires:
i)a threshold finding under s 72;
ii)consideration of s 74 and s 75(2);
iii)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
iv)discretion exercised in accordance with the provisions of
s 74, with ''reasonableness in the circumstances'' as the guiding principle.”The wife's estimate of costs that she would incur for electricity and for motor vehicle registration, maintenance and insurance comes to a total of $47.00 per week. Therefore, if the wife is to pay those costs herself, she will need a further $47.00 in addition to the $200.00 per week that I have already found to be reasonable. Allowing some flexibility and taken to the nearest $10.00, a total of $250.00 per week is therefore reasonable.
In her evidence, the wife conceded that she is not paying the rates and taxes on the former matrimonial home. She does not give any estimate of how much they cost. It therefore seems to me that, in addition to any spouse maintenance that I order, I must make an order that requires the husband to continue paying those rates and taxes.
I will order that the husband pay interim spouse maintenance to the wife in the sum of $250.00 per week and that he continue to pay the rates and taxes in relation to the former matrimonial home.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 2 November 2001
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