Pantelas and Pantelas
[2011] FMCAfam 115
•25 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PANTELAS & PANTELAS | [2011] FMCAfam 115 |
| FAMILY LAW – Interim spousal maintenance – wife unable to engage in paid employment as she is the full time carer of the parties’ adult intellectually disabled son – in addition to agreed payments of mortgage, rates, private health insurance, school fees and caring costs, the husband was found to have capacity to pay $800.00 per week to the wife by way of spousal maintenance – orders made accordingly. |
| Family Law Act 1975, ss.72, 74, 75(2) |
| Tomholt & Reed [2008] FMCAfam 380 |
| Applicant: | MS PANTELAS |
| Respondent: | MR PANTELAS |
| File Number: | MLC 7465 of 2009 |
| Judgment of: | Bender FM |
| Hearing date: | 10 February 2011 |
| Date of Last Submission: | 10 February 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 25 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Crofts |
| Solicitors for the Applicant: | Aitken Partners |
| Counsel for the Respondent: | Mr McIvor |
| Solicitors for the Respondent: | Digala & Associates |
ORDERS
UNTIL FURTHER ORDER:
The husband pay or cause to be paid to the wife by way of interim periodic spousal maintenance:
(a)the sum of $800.00 per week;
(b)house and contents insurance, mortgage instalments, land and water rates and levies and all like outgoings of and with respect to Property T (“Property T”) as and when they fall due;
(c)insurance, mortgage instalments in excess of rental income, land and water rates and all like outgoings of and with respect to the parties half share of the investment property at Property K (“Property K”) as and when they fall due;
(d)private health insurance at the current level of cover for [W], [Z] and the wife; and
(e)all school fees at [M] School for [Z] and all fees for the [M] Centre for [W].
The husband within fourteen days provide a letter to each party/entity being paid pursuant to orders 1(b), 1(c), 1(d) and 1(e) herein that contains the relevant reference or policy/account number and authorising such party/entity to communicate with and answer any question of the wife as to the amounts due and paid, level of cover. The husband shall provide a copy of such letters to the wife.
IT IS NOTED that publication of this judgment under the pseudonym Pantelas & Pantelas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7465 of 2009
| MS PANTELAS |
Applicant
And
| MR PANTELAS |
Respondent
REASONS FOR JUDGMENT
Introduction
The financial proceedings between the parties commenced in
February 2010 and were initially listed for final hearing on
15 & 16 November 2010. The final hearing was unable to proceed in November 2010 because a major asset of a property investment company in which the parties have an interest did not sell, as hoped, at auction in October 2010. This meant the parties’ financial circumstances could not be determined. The matter was therefore
re-listed for final hearing on 10 October 2011.
Because of the delay in the final hearing, the wife is now pursuing her Application for interim spousal maintenance.
Background
The wife was born [in] 1959 and is 51 years of age. The husband was born [in] 1958 and is 52 years of age.
The parties were married [in] 1978 and separated on 9 January 2008. They have four children [W] born [in] 1980 (“[W]”), [X] born [in] 1983 (“[X]”), [Y] born [in] 1985 (“[Y]”) and [Z] born [in] 1993 (“[Z]”).
Upon separation, the wife remained in the former matrimonial home with the children. [X] is in full-time employment. [Y] has recently moved and lives independently. [Z] is in Year 12 at [M] School.
[W] has a severe intellectual disability and has the intellectual functioning of a four year old. He requires assistance in his daily living including toileting, showering, shaving and eating. He is over 181 centimetres tall and weighs over 100 kilograms. During the school terms between 9.30 am and 3.30 pm on weekdays [W] attends the [M] Centre, (“[M] Centre”) – an employment, education and training day centre for adults with a disability. Otherwise the wife is [W]’s primary carer and bears the bulk of the responsibility for his day-to-day care. [W] spends Sunday with the husband. The frequency of this care however, is disputed. Due to her caring responsibilities, the wife has not been in paid employment since [Z]’s birth.
The husband, in equal partnership with his brother, MR P, operates a [omitted] business known as [P]. [P] is owned by [S] Pty Ltd (“[S]”). They also own [O] Pty Ltd (“[O]”), which in turn has a 45 per cent interest in [D] Pty Ltd which is the trustee of the [D] Trust (“[D]”).
Paragraph 82 of the wife’s affidavit sworn 13 January 2011 and filed 14 January 2011 in support of her Application sets out her understanding of the structure of the husband’s business investments.
Paragraph 82 of the wife’s affidavit sets out the husband’s business interests as follows:
82.My current understanding of the structure of the husband’s business interests is as follows:
a. The husband and his brother [Mr P] are the directors and equal shareholder of the companies:
i.[S] Pty Ltd (“[S]”); and
ii.[O] Pty Ltd (“[O]”).
b. [S] is the trading company for the husband and [Mr P]’s [omitted] business, which operates as [P].
c. [O] is the trustee company of the Pantelas Family Trust. The trust owns some of the [equipment] and other equipment used by [P] and has an interest in the commercial property development undertaken by “[D]”;
d. Until our separation [S] and [O] were operated so as to provide equal benefits to [Mr P] and our family;
e. The husband and [Mr P] are two of four directors of a company [D] Pty Ltd, the other two being Mr S and
Mr D. [O] owns 25% of the shares.
f. [D] Pty Ltd is the trustee of the [D] Trust (“[D]”). [D] owns the following properties:
1. Property P, Queensland (“Property P”);
2. Property D, which is a shopping centre which was significantly developed and upgraded during 2009;
3. Vacant land in Property A, adjacent to Property D and used as a car park;
4. Property S, which is leased by [business omitted].
In his answering affidavit sworn and filed 25 January 2011 at paragraph 72 the husband indicated that he:
“essentially agreed with the wife save for paragraph 82(e) where it states [O] owns 25% of the shares in [D] Pty Ltd. [O] has always owned 45 % of the shares.”
During the parties’ marriage [S] paid for the majority of their household expenses. [S] paid the mortgage, rates, insurances and utilities for the former matrimonial home. It also paid for all motor vehicles driven by the parties, as well as their insurances and running costs. [S] paid the children’s’ school expenses, health insurances for the family and other large expenses such as home repairs and replacements and family holidays. [S] also paid the mortgage and outgoings on the investment property at Property K (“Property K”) which is owned 50 per cent by the wife and 50 per cent by the husband’s brother’s wife.
In addition, during the marriage, the husband gave the wife $800.00 per week for food, clothing, medical expenses and other incidental expenses.
Since separation, [S] has continued to pay the mortgage instalments, rates and insurances for the former matrimonial home and Property K, private health cover for the wife, [W] and [Z], the school fees for [Z] and [W]’s day centre fees. At separation [S] ceased paying the utility expenses on the former matrimonial home and the running costs of the wife’s motor vehicle.
In addition to the expenses paid by [S], the husband continued to pay the wife the sum of $800.00 per week from separation until mid March 2010 when he was served with the wife’s Application. At this time he reduced that payment to $300.00 per week.
It was the wife’s evidence that the $300.00 received from the husband each week since March 2010 falls well short of the weekly expenses for herself, [W] and [Z] and that she has had to utilise her savings to meet these additional expenses. It was the wife’s evidence that she has exhausted her savings and thus seeks interim ongoing spousal maintenance from the husband in the sum of $1400.00 per week, together with a continuation of the payment of home and contents insurance, mortgage, land and water rates and levies on the former matrimonial home and Property K, private health insurance for herself, [W] and [Z], [Z]’s school fees and [W]’s day centre costs.
At the beginning of the matter, the husband agreed that he would continue to cause to be paid the house and contents insurance, mortgage instalments, land and water rates and levies in respect to the former matrimonial home and Property K, private health insurance for the wife, [W] and [Z] as well as [Z]’s school fees and the day centre fees for [W].
The husband’s proposal was that he would otherwise continue to pay to the wife $300.00 per week by way of interim spousal maintenance.
The evidence
The wife
In support of her Application as to the quantum of periodic support needed, the wife filed an updated Form 13 Financial Statement sworn 13 January 2011. In Part N of her updated Financial Statement the wife deposed to weekly expenses for herself, [W] and [Z] of some $1,800.00 per week.
The wife was challenged as to the amounts claimed by her in Part N of her Financial Statement and in particular the weekly amounts claimed by her for telephone ($100.00), clothing and shoes ($200.00), children’s activities ($100.00), entertainment/hobbies ($100.00), gifts ($100.00) and medical/dental ($100.00).
The wife did not have any invoices or receipts that substantiated the amounts claimed by her. She noted she had not been asked for such documents prior to the interim hearing of her Application.
In relation to medical expenses, the wife’s evidence was, despite having private health insurance, she and [Z] required ongoing chiropractic treatment which exceeded the amount payable for “extras” under the insurance policy, thus necessitating payment by her.
In relation to clothing, it was the wife’s evidence that [Z]’s casual clothing is expensive, for example his jeans cost $150.00 per pair. When challenged that she could buy [Z] less expensive brands, the wife observed
“well I could but he wouldn’t have what his mates have.”
In relation to [W], the wife explained that whilst he predominantly wears tracksuits, t-shirts and windcheaters, he is constantly staining and soiling his clothing such that his clothing must be constantly replaced.
In relation to children’s activities and entertainment, it was the wife’s evidence that she gives [Z] a lot of pocket money to go out and that she frequently puts $50.00 in his wallet when he goes to the movies. The wife advised the court that [Z] has a $60.00 a week:
“Macca’s habit.”
The wife gave evidence that she pays $12.00 per hour for three hours for a carer to sit with [W] on a Saturday morning as he becomes very agitated when the bus does not come to take him to the day centre. The wife also pays $55.00 for weekend respite care for [W] which she has utilised 16 times in the last two years. She pays up to $100.00 for taxi transport unless [W] is able to travel on the day centre’s bus.
In relation to the amount spent on gifts, it was the wife’s evidence that she comes from a large family which has a tradition of generous gift giving. She indicated there would not be a week she did not have a gift to purchase.
In relation to her telephone costs, it was the wife’s evidence that she telephones her mother in [town omitted] daily as well as ringing [Z] “constantly”.
The wife was challenged as to why she was unable to obtain some form of part-time employment whilst [W] was at the day centre.
It was the wife’s evidence that she is constantly on call when [W] is at the day centre. If he excessively soils himself she has to collect him and take him home. [W] is also epileptic and if he fits, she must also collect him. The wife noted that she would need a very sympathetic employer who would be prepared to let her leave work at any time on short notice if contacted by the centre.
[W] has been on a list for assisted housing for nearly ten years. Last year, his name was removed from the list for no cause and it was unclear on the parties’ evidence if they have been able to have his name reinstated on that list without loss of priority.
The husband
The husband also filed an updated Form 13 Financial Statement sworn
25 January 2011. He deposed that he receives a gross income of $1,008.00 per week from [S]. In addition [S] pays his rental, private health cover, telephone and motor vehicle expenses. Whilst his Financial Statement detailed the husband paying [Z] and [W]’s education costs from his own income, the husband conceded in his evidence that those costs were paid by [S].
The husband was cross-examined at length as to the current financial circumstances of [S] and the other entities. It was the husband’s evidence that the income being generated by [S] was being utilised to support the [D] investments.
As set out earlier in this judgment, [D]’s assets consist of:
·Property D and car park;
·Property P, Queensland; and
·Property S, ([business omitted]).
[D], having redeveloped the Property D, have been trying to sell that property and adjoining car park for some time. It was offered for auction in 2010 without success. It was the husband’s evidence that an offer was recently received for $12,300,000.00 for the Property D only. The offer was rejected as it would leave [D] with a $1,000,000.00 deficit against borrowings and a car park which would generate no income stream to service the debt.
It was the husband’s evidence that [D], pursuant to a contract dated
3 September 2009, engaged [H] Pty Ltd (“[H]”) to redevelop the Property D. [D] were unable to meet the final progress payment to [H] pursuant to the contract. After negotiation, [D] entered into a Deed of Settlement with [H] on 13 August 2010. Under the terms of the Deed of Settlement, [D] was required to make a series of periodic instalment payments culminating in a lump sum payment of $1,289,936.30 on
29 October 2010.Additional to the Deed of Settlement, the husband, his brother and the third director of [D], Mr S, signed a director’s guarantee whereby they personally guaranteed [D]’s performance under the Deed of Settlement.
On 6 December 2010, [D] and [H] entered an Addendum to the Deed of Settlement whereby the outstanding amount was amended to $1,404,239.26 payable on 25 March 2011.
It was the husband’s evidence that having failed to sell the Property D and car park for an amount that would enable [D] to discharge all liabilities including that payable to [H], [D] is currently seeking a second mortgage through private funders, such as solicitors, in order to pay out [H].
It was the husband’s evidence that the financial viability of the business structures were on a “knife’s edge” and a positive outcome very much depends on a sale of the Property D and car park for an amount that would allow the debts against that development, including to [H], to be discharged.
It was the husband’s evidence that given that his income from [S] is only $1,008.00 per week and the current financial obligations of [S] to support [D], it is untenable for either himself or [S] to pay support to the wife above and beyond that currently being paid. The husband noted the current level of support to the wife is $1,556.00 per week.
The experts
Both parties filed competing expert affidavits from their respective accountants. The wife relied on an affidavit from Mr F sworn and filed 14 January 2011. The husband relied on an affidavit from Mr G sworn and filed on 25 January 2011 The instructions given to the accountants were as follows:
1.INSTRUCTIONS
1.1Prepare an expert report commenting on:
(a) The Husband’s position that the [omitted] business has negative net tangible assets and accordingly no value and particularly;
(i) The position if the book values are re-stated as per the report of Mr B;
(ii)My view to valuing the business and whether the business has an income stream that is capable of being valued;
(iii)My estimate of the maintainable income of the [omitted] business on a cash flow basis.
(b) The quantum of funds raised by the business to lend to the [D] Uni Trust in the last 12 months.
At my request, a document headed “Experts Joint Report by Mr G and Mr F” dated 4 February 2011 was prepared and given to the court. It sets out the experts’ areas of agreement and disagreement.
As the hearing was of an interim nature, neither expert was
cross-examined and therefore their evidence could not be expanded or tested, nor any findings made on the conclusions reached by either of them.
What was common ground between both experts however, was that Seratap generates significant cash flow from trading activities of between $1,628,195.00 (Mr G) and $1,751,624.00 (Mr F).
Further, whilst the experts disagreed as to the amount of the cash flow that is generated from financing and investing activities, both agreed [S] has directed its cash flow expenditure significantly to the reduction of debt and investment in [D].
The law
In the matter of Tomholt & Reed [2008] FMCAfam 380, Walters FM succinctly sets out the law the court applies to determine an Application for interim spousal maintenance.
His Honour notes that it is Part VIII of the Family Law Act 1975
(“the Act”) that deals with property, spousal maintenance and maintenance agreements. Spousal maintenance is determined by reference to section 72 (right of spouse to maintenance), section 74 (power of the court in spousal maintenance proceedings) and section 75(2) (matters to be taken into consideration in relation to spousal maintenance).Section 72 of the Act states:
Right of spouse to maintenance
(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).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
Section 74 of the Act states:
Power of court in spousal maintenance proceedings
(1) In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
(2) If:
(a)an Application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b)either of the following subparagraphs apply to a party to the marriage:
(i)when the Application was made, the party was a bankrupt;
(ii)after the Application was made but before the proceedings are finally determined, the party became a bankrupt; and
(c)the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and
(d)the court is satisfied that the interests of the bankrupt's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the bankruptcy trustee as a party to the proceedings.
(3) If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.
(4) The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances.
(5) If:
(a)an Application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b)either of the following subparagraphs apply to a party to the marriage (the debtor party ):
(i)when the Application was made, the party was a debtor subject to a personal insolvency agreement; or
(ii)after the Application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and
(c)the trustee of the agreement applies to the court to be joined as a party to the proceedings; and
(d)the court is satisfied that the interests of the debtor party's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the trustee of the agreement as a party to the proceedings.
(6) If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement.
(7) The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances.
(8) For the purposes of subsections (2) and (5), an Application for an order under this section is taken to be finally determined when:
(a) the Application is withdrawn or dismissed; or
(b)an order (other than an interim order) is made as a result of the Application.
Section 75(2) of the Act states:
Matters to be taken into consideration in relation to spousal maintenance
(2) The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(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; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)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; and
(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; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In Tomholt & Reed (supra) at paragraphs 16 to 19, his Honour Walters FM sets out the manner in which the court is to determine an interim spousal maintenance Application as follows:
16. The role of each of these provisions is important:
…section 72, which concerns the liability of one party to a marriage to maintain the other, says nothing of the amount of maintenance that a needy spouse is entitled to receive from his or her partner should the former enforce this liability by a maintenance order. Quantum of spousal maintenance is determined by the court pursuant to section 74, taking into account the…considerations set out in section 75(2). It is possible for a liability to pay maintenance to be established under section 72, yet for the subsequent maintenance order to be quite small – or even for no maintenance order to be made at all – on account of the relevance of particular considerations set out in section 75(2).[1]
[1] See “Family Law” by Dr A Dickey QC (4th Edition — Law Book Co, 2002), at page 468.
17. In Bevan (1995) FLC 92-600, the Full Court stated that an award of spousal maintenance requires:
(a) a threshold finding under section 72;
(b) a consideration of sections 74 and 75(2);
(c)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
(d)discretion exercised in accordance with the provisions of section 74 with “reasonableness in the circumstances” as the guiding principle.
18. There is no direct reference to interim maintenance in the Family Law Act. Pursuant to section 80(1)(h) – which is within Part VIII – the Court, in exercising its powers under Part VIII, may “make…an order pending the disposal of proceedings …or until further order”. Spousal maintenance orders of this nature are referred to as interim spousal maintenance orders – but they are subject to the usual criteria for spousal maintenance, as set out in sections 72 and 75. The principal differences between applications for interim spousal maintenance and those for permanent spousal maintenance are as follows:
(a)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”[2]; and
(b)the trial judge has considerable discretion and (any relevant) appellate tribunal “...would be much more reluctant to interfere than would be the case with an order for indefinite maintenance”.[3]
19. It is clear from the above that section 72 establishes a threshold question which must be answered before the power in section 74 can be exercised – on either an interim or a permanent basis. The threshold question is whether the applicant is “unable to support herself or himself adequately”, not only by reason of the matters set out in (a), (b) and (c) of that section, but also having regard to any relevant matters referred to in section 75(2). Thus, the question whether an applicant for spousal maintenance (or interim spousal maintenance) can support herself or himself “adequately” is not to be determined by reference to any fixed or absolute standard – but by reference to the matters referred to in section 75(2).[4]
[2] See Williamson (1978) 4 FamLR 355 and Wilson (1989) 13 FamLR 205.
[3] See Wilson (1989) 13 FamLR 205, citing Redman (1987) 11 FamLR 411.
[4] See Mitchell (1995) FLC 92-601 at 81,995.
In closing, Counsel for the husband conceded that the wife has a need for spousal maintenance. I am in agreement with that statement. The wife has not engaged in paid employment for some 18 years. She has the primary care of the parties’ severely intellectually disabled son [W]. Her capacity to obtain employment that would accommodate [W]’s needs is limited. Clearly the “threshold question” is answered in the affirmative.
Accordingly, the issue for determination is what amount of spousal maintenance is needed by the wife to “adequately” support herself and what can the husband “reasonably” afford to pay.
It was argued on behalf of the husband that the amount of discretionary weekly expenditure by the wife of $1,800.00 as set out in her Financial Statement is grossly inflated.
As noted earlier in this judgement, the amounts claimed by the wife, particularly for telephone, clothing and shoes, children’s activities, entertainment and hobbies, medical and pharmaceutical, and gifts totalling $670.00 per week is excessive.
At the time the parties separated, the wife had $145,000.00 in savings being money “gifted” by her father. It was the wife’s evidence that of that amount she had expended $120,000.00 on legal expenses and $11,000.00 on [Y]’s wedding. It is the balance of these savings of some $24,000.00 that the wife has expended, on my understanding, on daily living costs for herself and the children since the weekly payment of $800.00 was reduced to $300.00. On my calculations the average weekly shortfall met by the wife from her savings over this period was approximately $400.00 per week.
It was also apparent from the wife’s evidence that during the marriage and up until the reduction of the weekly payment from $800.00 to $300.00, the wife was able, with the additional payments made by [S], to meet all reasonable living expenses of herself and her household.
The husband argued that until such time as the Property D and the car park sells, the businesses are “finely balanced” and their financial circumstances are such that there can be no finding that [S] has capacity to pay expenses over and above that which it currently pays.
The husband further argued that on his limited income of $1,008.00 per week, he has no capacity to reasonably pay above the $300.00 per week that he currently pays the wife.
Conclusion
There is no doubt in my mind that the amount claimed by the wife by way of weekly discretionary expenditure in her Financial Statement is excessive. She can no longer expect to live as she may have prior to separation, paying $100.00 per week in gifts, $150.00 on jeans for [Z] as well as financing his “Macca’s habit” and providing him with generous amounts of pocket money.
I am satisfied however that the wife cannot adequately support herself, [W] and [Z] on the level of weekly support currently being paid of $300.00 per week. She would be able to do so at the amount previously paid of $800.00 per week.
Whilst the husband paints a somewhat dire picture of the current difficulties of the business, especially until such time as the Property D and the car park are sold, it is noted that for many years the business has supported his family and the husband’s brother’s family through good and lean times.
As this was an interim hearing, the differing views of the parties’ respective accountants could not be explored.
The husband has not placed before the court a detailed explanation of the assets and liabilities of the various businesses he is involved in and in particular how the [D] investments are structured. For example, whilst it is known that the Property S property is leased to [business omitted], nothing is known of what level of indebtedness is attached to that property, or the rental it receives. Nothing is known to the court about the total liabilities against the Property D and car park other than the [H] of Settlement. Nothing is before the court as to what rental income is secured for the Property D and how those rents are utilised.
Absent more detailed information, I must determine this interim Application on the best evidence available to me. Given the long history over many years of [S] and the husband being able to adequately support the family, on balance, I am satisfied the husband can reasonably cause the wife to be paid an amount by way of periodic maintenance in addition to the amounts agreed to be paid that will allow her to be adequately supported.
I therefore make the following orders:
The husband pay or cause to be paid to the wife by way of interim periodic spousal maintenance:
(a)the sum of $800.00 per week;
(b)house and contents insurance, mortgage instalments, land and water rates and levies and all like outgoings of and with respect to Property T (“Property T”) as and when they fall due;
(c)insurance, mortgage instalments in excess of rental income, land and water rates and all like outgoings of and with respect to the parties half share of the investment property at Property K (“Property K”) as and when they fall due;
(d)private health insurance at the current level of cover for [W], [Z] and the wife; and
(e)all school fees at [M] School for [Z] and all fees for the [M] Centre for [W].
The husband within fourteen days provide a letter to each party/entity being paid pursuant to orders 1(b), 1(c), 1(d) and 1(e) herein that contains the relevant reference or policy/account number and authorising such party/entity to communicate with and answer any question of the wife as to the amounts due and paid, level of cover. The husband shall provide a copy of such letters to the wife.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate:
Date: 25 February 2011
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