Pascall and Pascall

[2010] FamCA 945

FAMILY COURT OF AUSTRALIA

PASCALL & PASCALL [2010] FamCA 945

FAMILY LAW – PROPERTY – INTERIM SPOUSAL MAINTENANCE – Order made

APPLICANT: Ms Pascall

RESPONDENT: Mr Pascall

FILE NUMBER: BRC 6696 of 2010

DATE DELIVERED: 20 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 19 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamwood

SOLICITOR FOR THE APPLICANT:	Dixie Ann Middleton & Associates
THE RESPONDENT:	In person

Orders

19 October 2010

IT IS ORDERED BY CONSENT

1. In the terms of Annexure A.

AND IT IS NOTED

Child support

1. In the terms of the notation to Annexure A. 

AND IT IS FURTHER ORDERED BY CONSENT

Share sale proceeds

1. The husband require Mr WT to pay to the husband in his capacity as trustee of the Pascall Family Trust the balance amount due in relation to the share transfer agreement made between them namely $225,000 within 7 days. 

2. The husband in his capacity as trustee of the Pascall Family Trust within 1 business day of receipt pay that sum namely $225,000 to Dixie Ann Middleton & Associates Trust Account to be held by that firm on trust in the names of the husband and the wife jointly for them beneficially invested in an at call IBD account not to be used for any purpose other than as ordered by the Court. 

Hogan order

1. The husband and the wife each be paid from that sum prior to IBD investment the amount of $50,000 each by way of a Hogan order to be characterised at the trial for each as a partial property settlement. 

20 October 2010

AND IT IS FURTHER ORDERED

Spousal maintenance

1. Until further order the husband pay to the wife by way of interim spousal maintenance $1630 per week to be paid from the balance $125,000 in the Dixie Ann Middleton & Associates Trust Account, to commence 26 October 2010 in advance, with the total amount paid to be characterised at the trial as to whether such amount appropriately be regarded as interim spousal maintenance or be regarded partly or wholly as partial property settlement. 

Further orders

1. The wife’s amended application filed 12 October 2010 in so far as it relates to interim orders otherwise is dismissed.

Costs

1. The question of the husband’s and the wife’s costs of and incidental to the wife’s amended application filed 12 October 2010 in so far as it relates to interim orders is reserved to the trial judge.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6696 of 2010

MS PASCALL

Applicant

And

MR PASCALL

Respondent

REASONS FOR JUDGMENT

1. The wife seeks interim and procedural orders set out in Part 3, pars 7 to 10 of her amended initiating application filed 12 October 2010. 

2. All matters became the subject of consent orders save for her claim that the husband pay her interim spousal maintenance in the amount of $2315 per week.  During the hearing the amount was amended to $1933 per week as set out in the written submissions of Mr Hamwood of Counsel filed 19 October 2010.

Spousal maintenance

1. Both parties practice a profession.  Each specialises in a particular field within their profession. 

Need

1. I accept the wife’s evidence that presently she is unable to earn income by reason of a medical condition.  See the affidavits of Dr H, general practitioner, filed 12 October 2010 and Ms T, psychologist, also filed 12 October 2010. 

2. She is presently in receipt of $1577 per week pursuant to an income protection policy. 

3. Her amended financial statement, Part N (extract), annexed to her affidavit filed 19 October 2010, lists claimed estimated needs amounting to $3510.97 per week (Part N). 

4. The shortfall amount of $1933 is the basis of her claim.

5. The husband submitted that several of the items in Part N appeared to him to be excessive in amount but did not challenge other items or their amounts. 

6. In applications such as these, it is necessary to assess an amount for interim spousal maintenance which is neither one of mere subsistence, at one extreme, nor of extravagance, at the other extreme, but is reasonable in all of the circumstances, including have regard to traditional lifestyle and standard of living of the claimant. 

7. Against that background, I will deal first with the specific items of claim referred to by the husband and then the wife’s claim more generally.

Specific items referred to by the husband

1. The wife claims $588 per week to lease a motor vehicle.  Until recently, that was the amount payable by her in relation to a Mercedes Benz motor vehicle which she no longer has.  Presently, she is using a friend’s borrowed motor vehicle on a private lease arrangement, but that is short term.  She proposes now to lease another vehicle in her own name.  In my view, the amount of $400 per week should be ample for this purpose and is reasonable, particularly as terms of finance relating to the number of years of a lease and end balloon payment generally are both negotiable and flexible.

2. The wife claims $50 per week for vehicle maintenance. (Petrol is separately claimed at $40 per week and not challenged by the husband).  This would amount to $2,600 annually.  If the wife leases a new or near new vehicle, particularly one that is still under manufacturer’s warranty, or with a dealer’s warranty, she is unlikely to need such amount.  However, inevitably, she will have annual or other periodic service charges.  In my view, it is reasonable to allow about $1500 annually for such, which, for the sake of round figures, I will assess at $30 per week.

3. The wife claims $150 per week for clothing and shoes.  This would amount to $7,800 annually.  It may well be that such amount is usual for the wife.  However, on the interim basis, until the parties’ financial claims can be finalised, in my view the amount of about $5000 annually is more than adequate which, again for the sake of round figures, I will assess at $100 per week.

4. The wife claims $200 per week for entertainment/hobbies, including horses.  This would amount to $10,400 annually.  Mr Hamwood pointed to the circumstance that the wife’s diagnosed medical condition is that of Major Depressive Episode and Generalised Anxiety Disorder, and that her involvement with horses is of assistance to her not only as a hobby but by way of relaxation and thus indirect therapy.  This is an important and significant aspect of the matter, even if inferentially.  Although there is no direct evidence on the point, the wife deposes (affidavit filed 12 October 2010, par 1.3) that she is hoping to attempt to return to part time work at the end of October 2010, but that her general practitioner’s view is that “I will take at least a year” to recover and “become fully functional in my professional life”.  In my view, if the wife’s proposed expenditure of $200 per week in relation to entertainment/hobbies-horses, as described at Part N, may be likely to assist her in her endeavour to resume practice as a professional with commensurate resumption of her career status, self esteem and income producing capacity, this opportunity should not be denied her.  After all, at the end of the day, at trial, if the parties are unable to settle their financial dispute, the wife’s income earning capacity will be a significant factor in relation to the section 75(2) factors, and she should be afforded every opportunity by way of interim spousal maintenance to restore her former career and income earning capacity.  I will, therefore, allow her claim for $200 per week under this head as reasonable, particularly as part of its objective is to facilitate the wife’s recovery.  At the end of the day, if the wife does not recover, there may well be a significant section 75(2) financial adjustment in her favour if she is not able to resume her career.  Plainly, thus, there is long term advantage to both the wife and the husband for this head of claim for interim spousal maintenance to be allowed.

5. The wife claims $115 per week for holidays.  This would amount to $5,980 annually.  On the interim basis, given that holidays are luxury items, I am prepared to allow $3,000 annually, which, on round figures, I will assess at $60 weekly.  Such would preclude overseas travel but would afford the wife the ability for road or air travel in Australia, particularly if she is able to arrange accommodation with family or friends.  I have in mind here, also, the wife’s need to recover from her presently diagnosed medical condition and the observations as to that which I have made already.

6. The wife claims $92 in education expenses.  During argument, the husband put that as the wife is not working such out not be allowed.  Mr Hamwood, however, put that the amount is required for the wife’s continued attendances at professional conferences and for subscriptions to professional journals and the like. This would amount to $4,784 annually, which I would regard as reasonable, particularly having regard to the professional matters concerning the wife to which I have already referred.  I will, therefore, allow her claim at $92 per week.

7. The wife claims $27 per week cleaning costs.  This is reasonable, and her claim is thus allowed at $27 per week.

8. The wife claims $280 per week as her liability for a tax repayment program.  Assuming this is a valid arrangement, I will allow it as claimed at $280 per week.

9. The wife claims $353.97 per week liability for premium for the maintenance of her AMP life insurance.  Assuming this is valid, I will allow it as claimed at $353.97 per week.

10. Finally, the wife claims $1000 per week minimum payment in relation to current credit card debt which it appears arises in relation to several credit cards as detailed in her affidavit evidence.  This amount should be allowed as claimed, $1000 per week, so that the wife is not placed into further credit card jeopardy.

The wife’s claim more generally

1. I have examined all other heads of claim by the wife at Part N.  Each seems to be, on the available evidence, reasonable.

The nature and style of the order which I will make

1. During argument I made plain that the nature and style of any order for interim spousal maintenance which I will make will be couched in terms that at the trial of the matter any amount ordered by way of interim spousal maintenance be characterised at the trial as to whether such amount appropriately be regarded as interim spousal maintenance or be regarded as partly or wholly partial property settlement.  The reason for that is plain, that is, that my assessment on the interim basis is only that and has not had the benefit of testing in cross examination as can occur at a trial.

2. In these circumstances I am entitled to be robust in respect of the wife’s claim because at the trial, if the matter does not settle, cross examination may be directed to the whole matter of interim spousal maintenance, and the trial judge will have full discretion to order that some or all of it be regarded as partial property settlement rather than characterised as spousal maintenance.

Assessment of need

1. Based on all of the above matters, and looking at Part N, with figures substituted according to my assessment, it is reasonable that the husband pay to the wife, subject to my assessment below as to his capacity to pay, the amount of $1630 per week calculated as:

   ·need, $3207.97 per week

   ·less $1577 per week income protection policy payments

   ·assessed amount (rounded) $1630 per week.

Capacity to pay

1. Mr Hamwood submitted that the husband has the capacity to pay that amount weekly by one of four options:

   (1)the balance amount of $175,000 to be held by the wife’s solicitors pursuant to consent orders the parties have agreed (actually $125,000 as per further subsequent orders made)

   (2)the amount of $701,959 retained earnings in F Pty Ltd as at 13 September 2010

   (3)the amount of $330,149 presently held in bank accounts for F Practice, the trading name of F Pty Ltd

   (4)the amount of $100,000 per annum income stream said to be available to the husband over and above his income actually paid from F Pty Ltd

2. The husband submitted that options 2, 3 and 4 are not available to found any interim spousal maintenance order for the wife, but conceded that option 1 is available.

3. In these circumstances I find that option 1 is available and determine that it is appropriate in all of the circumstances that the husband has the capacity to pay the amount I have assessed, but with the reservation to which I have referred already as to characterisation of the payments at the ultimate trial of the matter.  The payments, I will make clear, will come only from the fund to be held in the wife’s solicitors’ trust account.

Commencement date for the payments and other matters

1. The wife’s application seeks that the weekly payments commence Tuesday 26 October 2010, in effect, to be in advance from that date, with the payments to be paid to a bank account nominated by the wife.  In the circumstances which I have outlined, the payments will be made to the wife from her solicitors’ trust account.  It is therefore not necessary for a bank account to be nominated in the orders.  That arrangement conveniently can be made between the wife and her solicitors.

2. The funds to be paid to the wife’s solicitors’ trust account are to be paid, according to other orders made in the matter, within 7 days.

3. Plainly if the moneys for any reason are late, an entitlement to arrears back to 26 October 2010 is appropriate.

Orders

1. I will order, in addition to the consent orders in the matter, that until further order the husband pay to the wife by way of interim spousal maintenance the amount of $1630 per week to be paid from the balance amount of $125,000 to be held in the wife’s solicitors’ trust account as earlier ordered, commencing 26 October 2010 in advance, with the total amount paid to be characterised at the trial as to whether such amount appropriately be regarded as interim spousal maintenance or be regarded partly or wholly as partial property settlement.

2. I will order also that the wife’s application, in addition to the consent orders and this order, otherwise be dismissed, and that the parties’ costs that is both parties’ costs of and relating to the wife’s application for interim orders be reserved to the trial judge.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 20 October 2010.

Associate:                 

Date:    25 October 2010